White v Ridley

[1978] HCA 38

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Jacobs, Murphy and Aickin JJ.

WHITE v. RIDLEY

(1978) 140 CLR 342

5 October 1978

Criminal Law

Criminal Law—Criminal act—Commission—Intent—Cause—Innocent agent—Liability of principal—Attempt by principal to withdraw—Whether effective—Arrangement for airline to carry package containing prohibited import to Australia—Carrier ignorant of contents—Instruction to cancel arrangement for carriage—Contents of package not disclosed to carrier—Instruction ineffective—Whether timely countermand of original request—Customs Act 1901 (Cth), s. 233B (1) (b).

Decisions

October 5
The following written judgments were delivered: -
GIBBS J. The applicant was convicted in a magistrate's court of Victoria on a charge of importing into Australia a prohibited import, namely a quantity of cannabis, contrary to s. 233B (1) (b) of the Customs Act 1901 (Cth), as amended. He was sentenced to four months' imprisonment. An appeal to the County Court of Victoria having been dismissed, a further appeal by way of case stated was brought to the Full Court of the Supreme Court of Victoria. That appeal also was dismissed and the applicant now seeks special leave to appeal to this Court. (at p345)

2. The facts set out in the case stated, so far as it is necessary to repeat them, are as follows. On 30th September 1976 the applicant, in Singapore, delivered to Singapore Airlines a box for consignment to Australia. The box contained a stereo receiver, inside which, unknown to Singapore Airlines, the applicant had concealed a quantity of cannabis. On the same day the applicant left Singapore by air for Sydney. On his arrival in Sydney at about 8 a.m. on 1st October 1976 he was searched by customs officials, who found that he was in possession of a document which evidenced the consignment of the box, and who questioned him about the document. The applicant left Sydney by air and arrived in Melbourne at about 9.30 a.m. on the same day. Being not unnaturally apprehensive as a result of the search and the questioning, he instructed Ansett Airlines to send a signal to Singapore to cancel the delivery of the box. This instruction was given at some time between 10 a.m. and 9 p.m. that day. A telex message (Exhibit Q) was sent to Singapore Airlines at sometime between 1 p.m. and 9 p.m. (Melbourne time) on 1st October 1976, asking the airline not to send the box to Australia but to hold it for collection in Singapore. The telex was marked "urgent", but it did not inform the airline that the box contained a prohibited import. In reply a telex message was sent from Singapore at about 11.30 p.m. (Melbourne time), saying that the message from Australia had been received too late for action. In fact a Singapore Airlines jet, which left Singapore about half an hour before the telex message was sent from Singapore, carried the box to Australia. The case stated by the County Court judge contained the following paragraph which it is necessary to quote in full:
"10. At the time of the receipt of the signal Exhibit Q., in Singapore, I am unable to make a finding as to whether it was then practicable to retrieve the box or whether the containerization and loading procedures rendered this step impracticable. Impracticable in the sense of this finding, means impracticable having regard to the nature of the cargo sought to be recalled and the low degree of urgency involved. In this regard, I am satisfied that the retrieval of the box would have been impracticable during a period not less than four hours and not more than eight hours before the departure of the flight. My inability to make a finding in this regard stems from the lack of precise evidence of the time of despatch of Exhibit Q. It follows that I am not able to exclude, as a reasonable possibility, that the appellant gave instructions to cancel the consignment in sufficient time to make the retrieval of the box practicable if all concerned had acted promptly. I am satisfied that Exhibit Q was received in time to make the retrieval of the box physically possible if the matter had been regarded as sufficiently urgent." (at p346)

3. The learned judges who constituted the Full Court of the Supreme Court regarded the stated case as defective because it contained no finding upon the question whether or not the applicant caused the cannabis to be imported into Australia. Rather than remit the case to the County Court judge for a further statement, the Full Court felt entitled, in the circumstances, to proceed as though two paragraphs which appear in the reasons given by the County Court judge for his decision were part of the facts stated in the case. Those two paragraphs were as follows:

"On the findings of fact that I have made, I am quite satisfied that a causal connection has been proved between the appellant's conduct in Singapore and the subsequent importation." and ". . . I am satisfied beyond reasonable doubt that the appellant's conduct in Singapore did cause the intended importation in the sense required by the criminal law."

These passages were regarded by the Full Court as crucial to the determination of the case. (at p346)

4. The applicant did not himself bring the cannabis into Australia; it was brought in by the airline. However it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender. That is so not only where the agent lacks criminal responsibility, as, for example, when he is insane or too young to know what he is doing, but also where the agent, although of sound mind and full understanding, is ignorant of the true facts and believes that what he is doing is lawful. Thus if A sends out B with a forged bank note for the purpose of passing it, and B does so, being ignorant that it was forged, A is guilty of uttering and publishing the note as true, since "where an innocent person is employed for a criminal purpose, the employer must be answerable": R. v. Palmer and Hudson (1804) 1 Bos &Pul (NR) 96, at p 97 (127 ER 395, at p 396) . If A gives B false particulars to enter in a register, and B enters them in the belief that they are true. A is guilty of making the false entry in the register: Reg. v. Butt (1884) 15 Cox CC 564 . If A, planning a forgery, procures B, an innocent engraver, to make a plate, A is guilty of making and engraving the plate: Reg. v. Bull and Schmidt (1845) 1 Cox CC 281 . So it has been held that where the defendants fabricated false vouchers on the high seas and posted them to a third person who innocently delivered them in Middlesex, a delivery by the defendants took place in Middlesex so that the defendants were triable there, "for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose; the crime of presenting these vouchers was exclusively their own, as the crime of administering posion through the medium of a person ignorant of its quality would be the crime of the person procuring it to be administered": Reg. v. Brisac and Scott (1803) 4 East 164, at p 172 (102 ER 792, at p 796) . In the light of this common law principle it has been held that the words "actually commits the offence" in s. 66 (1) of the Crimes Act 1961 (N.Z.) are apt to describe a person who, with the necessary criminal intent, uses another but innocent person as an instrument to perform the physical act necessary to commit the particular crime: Reg. v. Paterson (1976) 2 NZLR 394 . The provisions of s. 233B (1) (b) of the Customs Act 1901, as amended, and those of s. 5 of the Crimes Act 1914 (Cth), as amended, must also be understood in the light of this well established principle. The applicant could not be held to be guilty on the basis that he aided, abetted, counselled or procured the importation of the cannabis. His conviction can only be sustained on the footing that he himself imported it, through the innocent agency of the airline. (at p347)

5. But what is the position when the accused person, who has requested or encouraged an innocent agent to do an act which would constitute the physical element of the crime charged, and which if done would therefore make the accused guilty of that crime, retracts his request or withdraws his encouragement before the act is done? There seems to be no authority directly on this point. There are, however, decisions on the analogous questions which arise when a person who is sought to be made liable as an accessory, on the ground that he has counselled or procured another to commit a crime, countermands his counselling or procuring before the crime is committed, or when a person engaged with others in a common criminal enterprise withdraws before the enterprise is carried to completion. (at p348)

6. The law as stated by Hale is that a person is not liable as an accessory if he has given "timely countermand", but that repentance, without an actual countermand berore the fact committed, is not enough to avoid liability: Pleas of the Crown, vol. I, p. 618. The only modern case in relation to accessories appears to be R. v. Croft. It was there said (1944) KB 295, at p 298 : "The authorities, however, such as they are, show, in our opinion, that the appellant, to escape being held guilty as an accessory before the fact must establish that he expressly countermanded or revoked the advising counselling, procuring or abetting which he had previously given." The Court there obviously did not intend to say that the accused bore the onus of establishing that the counselling or procuring of the crime had been countermanded or revoked; what was meant was that he would not be guilty as an accessory if he had expressly countermanded or revoked his counselling or procuring. The general onus of proving the guilt of the accused would never shift from the Crown, but an accused who relied on the giving of a countermand or revocation must be able to point to evidence which shows that a countermand or revocation had been given: cf. Reg. v. Saylor (1963) QWN 14, at p 36 . Professor Glanville Williams has expressed the view that the rule that the authorization must have been expressly withdrawn is in some cases too stringent, and that there is no reason to doubt that a withdrawal may be implied from conduct in certain circumstances: Criminal Law: The General Part, 2nd ed. (1961), p. 384. This may well be correct in cases of common design, although it is difficult to envisage a case in which a person who has expressly procured the commission of a criminal offence can sufficiently countermand what he has done merely by conduct; that question however does not arise in the present case. In R. v. Croft the Court did not mention the requirement that the withdrawal should be timely, and in Archbold: Criminal Pleading Evidence and Practice, 39th ed. (1976), par. 4143, it is said that "it does not appear to have been clearly established whether the countermanding or withdrawal from the crime must have been timely and effective, or whether the person countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime". However the cases on common design to which I am about to refer clearly recognize that a timely withdrawal is essential, and there would seem to be no reason why the same should not be true of a countermand or revocation by an accessory. (at p349)

7. In relation to cases of common design the law was stated as follows in a Canadian case R. v. Whitehouse (1941) 1 DLR 683, at p 685 :

"Can it be said on the facts of this case that mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is 'timely communication' must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences."

This passage has been cited with approval by the Court of Criminal Appeal in England and in Queensland: Reg. v. Becerra and Cooper (1975) 62 Cr App R 212, at p 218 ; Reg. v. Saylor (1963) QWN at pp 36-37 . (at p349)

8. Notwithstanding the doubt expressed by Archbold, it is accepted by the learned authors of Halsbury, 4th ed., vol. 11, par. 44 that the countermand or withdrawal must have been effective if the accused is to escape liability. Halsbury cites as authority R. v. Croft (1944) KB 295 . That was a case in which the survivor of a suicide pact was convicted of murder. After stating the law in the passage which has already been quoted, the Court of Criminal Appeal continued, (1944) KB, at p 298 :

"We are of opinion that the circumstances in this case did not amount, and could not reasonably have been held to amount, to such a clear countermanding or determination of the agreement as would discharge the appellant from liability to a charge of murder if that which occurred was the result of what he had done before. He never said anything to the woman which could have removed from her mind the effect of the counsel which he had previously given her."

That passage, however, suggests that the countermand should have been capable of being effective, not that it must in fact have been effective. In the United States it has been said that a withdrawal "must be accompanied by some affirmative action which is effective": Eldredge v. United States (1932) 62 F (2d) 449, at p 451 . Whatever may be the position in relation to withdrawal from a conspiracy, it does not seem altoghther appropriate to say that a person who has incited the commission of a crime, and has countermanded the incitement, is liable as an accessory when that crime is committed unless he has "effectively" countermanded the incitement. Obviously it cannot be the law that the accused is liable for the contemplated crime unless the countermand was effectual to prevent its commission, for if the crime was not committed the question of the liability of the accused as an accessory would not arise. When the countermand has failed to prevent the commission of the crime, it would seem irrational to hold that the accused is liable if the countermand was completely ineffective, but that he escapes liability if it had some effect short of preventing the commission of the crime. (at p350)

9. The further question raised by Archbold is whether the person countermanding or withdrawing is required, in order to escape liability, to take reasonable steps to prevent the commission of the crime. Professor Glanville Williams (op. cit., p. 385) and Professors Smith and Hogan: Criminal Law, 3rd ed. (1973), p. 110, consider that an accused remains liable notwithstanding his communicated withdrawal unless he takes steps to avert the danger which he has helped to create. Professor Howard expresses a similar view: Criminal Law, 3rd ed. (1973), pp. 282- 283. Professor Glanville Williams cites from the judgment in Eldredge v. United States, (1932) 62 F (2d) 449, at p 451 : "A declared intent to withdraw from a conspiracy to dynamite a building is not enough, if the fuse has been set; he must step on the fuse." It seems entirely reasonable to insist that a person who has counselled or procured another to commit a crime, or has conspired with others to commit a crime, should accompany his countermand or withdrawal with such action as he can reasonably take to undo the effect of his previous encouragement or participation. (at p351)

10. The question whether an accused person is liable for the acts of an innocent agent ought to be answered by the application of similar principles. Where the accused has requested a person who is of sound and mature mind to do an act which the accused knows, but the agent does not know, is illegal, the accused will not be liable if he has given timely countermand of his request. The countermand must have been manifested by words or conduct sufficiently clear to bring it home to the mind of the agent that the accused no longer desires the agent to do what he was previously asked to do; a vague, ambiguous or perfunctory countermand would not be enough. And the accused must have done or said whatever was reasonably possible to counteract the effect of his earlier request. The countermand will not have been timely if it was given when it was too late to stop the train of events which was started by his request. Further questions might arise if, for example, the innocent agent were insane and it was not possible for that reason to undo the effect that a previous incitement had had upon his mind. Of course, I have dealt only with the liability of the accused for the crime itself, and not with the question whether he would be guilty of attempting to commit the crime. (at p351)

11. If a countermand was given, but it was not timely or sufficiently clear, or the accused did not take steps to undo the effect of what he had done, it would be no answer to a charge to say that the accused no longer had a guilty mind when the criminal act was done. "The mens rea must coincide with the act of counselling, not necessarily with the commission of the counselled offence": Smith and Hogan, op. cit., p. 110. (at p351)

12. A trial judge or a jury need not in my opinion decide a case such as this by considering questions of causation. It may be true that the rules relating to countermand may be explained by reference to the principles of causation, and that if after a sufficient countermand the agent nevertheless proceeds to act in accordance with the request originally made, his acts may be regarded as resulting from a new and intervening cause. But it is enough to apply directly the rules I have endeavoured to state; for a trial judge or jury to go behind them, and consider questions of causation, is more likely to lead to confusion than to provide assistance. (at p351)

13. In the present case, the act of the airline in innocently carrying the cannabis into Australia will be treated as the act of the applicant, who requested the airline to make the carriage, unless the applicant gave a timely countermand, and did all that he reasonably could to ensure that the airline did not act upon his request. There can be no doubt that the telex (Exhibit Q) communicated to the airline a clear revocation of the applicant's request that the goods be carried to Australia. The telex was received in time to make it possible for the airline to retrieve the box if the matter had been regarded as sufficiently urgent, and according to the judge's finding it may have been practicable to retrieve the box even if the airline had no reason to think that the matter was of any particular urgency. On an appeal by way of case stated the court cannot determine questions of fact and it cannot draw inferences from what is stated in the case: see Reg. v. Rigby (1956) 100 CLR 146, at pp 150-151 . An appeal of that kind is generally unsatisfactory, and is particularly so incriminal cases. But having regard to the nature of the appeal it may be assumed (without deciding) that the case could not be concluded against the applicant on the basis that the countermanding of the request was not timely. Nevertheless it is clear that the applicant did not do all that he reasonably could to attempt to prevent the airline from effecting the carriage which he had requested it to perform. He did not disclose to the airline, in his telex, that the box, which he had said contained a stereo receiver, in fact contained cannabis. If he had done so the airline would have become aware of the importance of stopping the carriage, but as things were the airline had no reason to take any extraordinary steps to retrieve and off-load the box. It is easy to appreciate the applicant's reasons for not wishing to state in his telex that the box contained cannabis, but his failure to do so meant that he did not do all that he reasonably could to undo the effect of his request to the airline to carry the box to Australia. In these circumstances the sending of the telex was not sufficient to absolve the applicant from responsibility when the airline, acting upon his previous instructions, brought the box into Australia. The applicant was therefore rightly convicted. (at p352)

14. In view of the importance of the questions involved I would grant special leave to appeal, but I would dismiss the appeal. (at p352)

STEPHEN J. This applicant for special leave to appeal was, in February 1977, convicted and sentenced to four months' imprisonment on a charge of importing into Australia a quantity of a prohibited import, cannabis, in breach of s. 233B (1) (b) of the Customs Act 1901. (at p352)

2. His appeal to the Victorian County Court against conviction and sentence was dismissed and his application to have the facts specially stated for the consideration of the Supreme Court was refused. He subsequently succeeded in an application to have the facts specially stated. The matter, in the form of a special case, then came before the Full Court of the Supreme Court, which dismissed the appeal. Hence the present application for special leave. (at p353)

3. The applicant, an Australian about to return home from Singapore, had in his possession a quantity of cannabis. He bought a stereo receiver, concealed the cannabis in it and then left by air that evening for Australia, having first arranged with Singapore Airlines that the box containing the stereo receiver should follow him to Australia the next day, as air freight. When he arrived in Sydney the next morning he was met by Customs officials, who searched him and questioned him about a waybill for the stereo receiver which they found in his possession. He then flew on to Melbourne and on arrival, being now apprehensive about discovery of the cannabis once it arrived in Australia, he asked Ansett Airlines to have Singapore Airlines stop the dispatch of the box to Australia. Ansett Airlines passed an appropriate telex message to Singapore Airlines which replied by telex that the box was to arrive in Sydney on a particular flight, the instruction to stop dispatch of the box having been received "too late for action". Arrive it did and when inspected by the waiting Customs officers it was, of course, found to contain cannabis. The applicant was then charged with its importation into Australia. (at p353)

4. The applicant, having used an innocent instrument, Singapore Airlines, to effect the importation of the cannabis into Australia, would, had there been no more to the case than that, clearly have been guilty of an offence under s. 233B (1) (b): his arrangement with that airline that it should carry the box into Australia would have involved him in the commission of the offence once the box, as a result of that arrangement, entered this country. That arrangement incriminated the applicant because it caused the importation to occur, the applicant being the importer. The airline was no more than the innocent instrument by which he effected the importation, an instrument which he set in motion for the purpose of committing the offence: Glanville Williams, Criminal Law: The General Part,2nd ed. (1961), par. 120. In passing it may be noted that the term "instrument", used as early as the beginning of last century in East's Pleas of the Crown, vol. 1 (1803), p. 228, is, I think, to be preferred in this context to that of "agent", which rather suggests some relationship of principal and agent between consignor and carrier: here the relationship was contractual but was not that of principal and agent and the doctrine of the criminal law sometimes styled that of the "innocent agent" likewise involves no notion of a necessary relationshio of principal and agent: Glanville Williams, op. cit., p.352. (at p354)

5. If the applicant's arrangement with the airline be viewed in isolation its incriminating quality lies in the fact that it was calculated to result in the importation of the cannabis into Australia. Since that importation in fact occurred, what can the applicant now rely on as sufficient to disarm the arrangement of its incriminating character? Only, I think, some event which may be seen to deprive the arrangement of its quality as the cause of the importation; that is, the intervention of some new cause for which the applicant was not responsible and which displaced the original arrangement as the event to which the importation can be causally assigned. (at p354)

6. Some such new cause might have so intruded itself between the applicant's original arrangement with Singapore Airlines and the subsequent arrival of the box in Australia as to deprive that arrangement of its character as the cause of the importation. That arrangement would then have become no more than a part of "the setting in which another cause operates" Reg. v. Smith (1959) 2 QB 35, at p 43 , if the new cause were of so overwhelming a nature as to relegate the applicant's arrangement to a quite subsidiary causal position. Thus in Smith it was said that had the original wound inflicted by the accused been transformed by a new causal event into "merely part of the history", it would then have been proper to regard the victim's death as not flowing from that wound. (at p354)

7. In my view the facts of this case disclose no such new cause. The factor upon which the applicant must rely to free him from criminal responsibility must spring from his attempt to stop the importation. However, I regard this as giving rise to no new cause which displaces, as the cause of importation, his original arrangement with the airline; all that happened was an ineffective attempt to deflect the course of events which the applicant had set in train. Because it was ineffectual, leaving unimpaired as the cause of the importation the applicant's arrangement with the airline, it provides no answer to the case made against the applicant. (at p354)

8. The only conceivable new cause on which the applicant might rely would appear to be the existence of some determination on the part of Singapore Airlines willy-nilly to carry the box to Australia, this determination being evinced despite the applicant's telex message to it and being quite independent of his original arrangement with that airline. The special case lends no support to any such proposition. The learned County Court judge concluded that he could make no finding whether or not it was practicable for the airline, when it received the telex message, to have then retrieved the box or whether, on the contrary, the containerization and loading procedures rendered such a step impracticable. It followed, he said, that he was unable to exclude, as a reasonable possibility, that the applicant did give instructions to cancel the consignment in sufficient time to make the retrieval of the box practicable if all concerned had acted promptly. This finding is, however, a far cry indeed from anything in the nature of a new cause of the importation, attributable to an independent determination by Singapore Airlines to carry the box into Australia. Of that there is, perhaps not surprisingly, no suggestion whatever in the stated case. (at p355)

9. This is a convenient point at which to say something about the position of Singapore Airlines. Just as I have described it as misleading to speak of the airline as the applicant's "agent", so it would be equally misleading to describe what took place between it and the applicant as the initial giving of "instructions" and their subsequent revocation, a revocation to which the the airline failed to give effect and instead ignored. The airline was not, as such a description of the circumstances might suggest, an agent unresponsive to its principal's instructions. The position was, rather, that the applicant, having made a contract with Singapore Airlines, purportedly as agent for a consignor, Peter Chew, for the carriage of the box to Australia and its delivery to a fictitious consignee, one Ray Smith, later by the telex message in the name of this fictitious consignee, attempted to have the terms of that contract changed. It is clear from the exhibits which accompany the special case that the subterfuge to which the applicant had resorted, his invention of the fictitious Ray Smith and the pretence that the consignor and consignee were distinct parties, resulted in his telex message from Australia being one which sought a variation by the consignee of a contract of carriage made between the consignor and the carrier, Singapore Airlines. (at p355)

10. It may be that the airline would have been willing enough to act on such a request by a consignee, although by the terms of the Warsaw Convention and the Hague Protocol, made applicable by the conditions of contract contained in the airlines' waybill, it is to the consignor, not the consignee, that there is reserved the right, as against the carrier, to withdraw the goods at the airport of departure or to redirect their destination, as the applicant's telex sought to do: see and contrast Articles 12 and 13 of the Convention, set out in the First Schedule to the Civil Aviation (Carriers' Liability) Act 1959 (Cth), and Lord McNair, Law of the Air, 3rd ed. (1964), p. 180. (at p356)

11. This aspect of the matter calls for no closer investigation. I mention it only to dispose of any suggestion that Singapore Airlines, in carrying the box into Australia, was an agent acting in disregard of the instructions of its principal. It does, however, also emphasize the extent to which the applicant had, by the means he had adopted, deprived himself of the ability, at will, to deflect that train of events leading to importation which he had set in motion. (at p356)

12. Before turning to a contention especially urged on behalf of the applicant, concerned with the reasonably foreseeable consequences of the applicant's telex, I should say something further concerning the circumstances of the applicant's attempt to undo what he had done in arranging for the importation of the cannabis into this country. (at p356)

13. The ineffectiveness of his attempt was due in part to the means he adopted in making that attempt and in part to his selection of a commercial airline as the freight-carrying instrument with which he was to effect the intended importation. The means adopted, the telex message, suffered from two defects, its timing and its contents. The applicant delayed for many hours after the making of the original arrangement in Singapore for dispatch of the box to Australia before he attempted to deflect its consequences. Again the contents of the telex, quite apart from the fact that it appeared to convey the wishes of the consignee and not those of the contracting consignor, were less effective than they might have been. They concealed the critical fact that the box contained cannabis, the importation of which would involve criminality. Had this been disclosed there would not have existed that apparent "low degree of urgency" to which the stated facts refer. (at p356)

14. Of course both the timing and the contents of the telex are readily explicable: it was only when faced with the prospect of discovery that the applicant sought to prevent importation and he was no doubt wary of being too explicit in the telex lest he thereby further implicate himself. I mention these matters only because of some discussion during the hearing of the appeal about the affording of opportunity for repentance. In some systems of law repentance of a projected crime is of relevance; thus where the crime is inchoate and the repentance is voluntary and precedes discovery of the attempt, it may excuse - see generally the discussion in Dr. Gordon's Criminal Law of Scotland (1967), pp. 168-170. Even were some aspects of this concept applicable in this country, as to which see R. v. Page (1933) VLR 351 and Glanville Williams, op. cit., par. 199, it could have no application to a completed crime as distinct from an attempt nor, I think, to repentance which occurs after, and because of, the known arousal of the suspicions of customs officers. (at p357)

15. The nature of the instrument which the applicant chose with which to effect his planned importation of cannabis was one over which he necessarily had relatively little control. Had he carried the cannabis with him and returned to Australia by sea he could at any time before arrival in Australia have effectively put a stop to his projected importation. Even returning by air with the cannabis in his possession might perhaps have allowed him some measure of ability effectively to resile from his original scheme. However he instead entrusted the box to a commercial airline and dispatched it as air freight, thereby relinquishing all personal control over its subsequent movements. What in fact happened when, at a relatively late stage, he sought to countermand his original instructions demonstrates the extent of his loss of control of the box's movements. (at p357)

16. In my view not only do the stated facts disclose no new cause intervening between the applicant's original arrangement with Singapore Airlines and the arrival of the cannabis in Australia but what they do reveal, an unsuccessful, tardy and reticent attempt, after apprehension of detection, to arrest a train of events which he himself set in motion, has no effect in law upon his criminal liability. (at p357)

17. It was urged on behalf of the applicant that a different conclusion, one favourable to him, might be revealed by an analysis of the relevant facts in terms of causation and reasonable foreseeability. Just as the applicant's arrangement with Singapore Airlines could reasonably be foreseen to result in importation, so his later telex instructions could reasonably be foreseen as preventing that importation. It was not foreseeable that the airline would ignore that later instruction and it therefore operated, as it were, to cancel out the causal effect of the applicant's earlier arrangement. Although the importation nevertheless occurred, it could no longer be said to have, as its cause, any act of the applicant. This submission seeks, of course, to make full use of the finding in the stated case that it could not be said whether or not at the time of receipt of the telex in Singapore it was then practicable to retrieve the box from the containerization and loading procedures involved in its dispatch from Singapore. The Crown, it was said, had to discharge the onus of showing that the time of arrival of the telex in Singapore did not make it practicable for Singapore Airlines to prevent the dispatch of the box and this it could not do in face of the facts as found in the stated case. (at p358)

18. I regard this submission as unacceptable because it ignores the only solid ground ever encountered in that morass which is causation, that is, the actual happening of the consequence of which the cause is being sought. That consequence is, here, the arrival of the cannabis in Australia. When the applicant initially arranged for its carriage into Australia that consequence was, of course, reasonably foreseeable. Cause and consequence were thus linked. This link might have been broken by the intrusion of some new causal act which served to displace the applicant's initial act as the cause of the consequence. But failing that possibility, absent here, the link between the two cannot be affected by a quite different sort of intervening act, namely, an unsuccessful attempt to prevent the occurrence of the consequence. However likely, however reasonably foreseeable, it may be that such an attempt will succeed in preventing the occurrence of the consequence, yet, if it does not do so and if, instead, the consequence nevertheless ensues, it must follow that the intervening unsuccessful attempt has had no effect upon the existing link between cause and consequence. (at p358)

19. This aspect was adverted to in the course of a more general discussion of causation by the Full Court of the Supreme Court of South Australia in Reg. v. Hallett (1969) SASR 141, at p 149 where their Honours said:

"It does not matter on the question of causation whether or not the accused after the commission of his act fails to appreciate or takes unavailing steps to avoid its probable consequences or mistakenly thinks he has taken such steps or fails to take such steps through some supervening factor unless that supervening factor so interrupts the effect of the original act as to prevent that original act from being in the eyes of the law the cause of death.".

For present purposes the relevant act on the accused's part occurred when he set in motion the carriage of the box from Singapore to Australia. His "unavailing step" was his later unsuccessful attempt to prevent that carriage from taking place. (at p358)

20. The situation is very much one in which the proof of the pudding is in the eating. If the applicant's attempt to prevent his initial. conduct from producing its anticipated consequence miscarries, its miscarriage being made manifest by the happening of that very consequence, then his unsuccessful attempt will be of no legal effect, and the criminal character of his initial act will remain unaffected by his later attempted act of intervention. (at p358)

21. The submission was phrased in terms of reasonable foreseeability and I have therefore discussed it in those terms. It is unnecessary for the decision of this case to determine whether this description of what constitutes, in criminal cases, a sufficient link between act and consequence is to be preferred to other well-known formulations. (at p359)

22. The problem may also be analysed in terms of the intent necessary to involve criminal liability, rather than in terms of causation but with, I think, no different conclusion. When the applicant arranged in Singapore for the carriage of the box to Australia he undoubtedly possessed the necessary intent. Once he made that arrangement no further action was required of him in order that his intent should take effect; all that was necessary to effect the importation of a prohibited import, using for that purpose the airline as an innocent instrument, had been accomplished. That being so his state of mind at later times is irrelevant. While it is generally true that "the intent and the act must both concur to constitute the crime" Fowler v. Padget (1798) 7 TR 509, at p 514 (101 ER 1103, at p 1106) , per Lord Kenyon C.J. it is always necessary, if there is said to be any lack of temporal coincidence between act and intent, accurately to identify the relevant act. It was to this need that Barwick C.J. drew attention in Ryan v. The Queen (1967) 121 CLR 205, at p 219 . Here all relevant acts were concluded once the applicant left Singapore, having there concluded the arrangements for the importation of the box into Australia. It is his intent at that time that is material and no subsequent state of mind can affect the criminal character of his conduct so long as the consequence which in fact occurred, the importation, was brought about by his acts in Singapore - see Russell on Crime, 12th ed. (1964), pp. 53 et seq. and, generally, the article "Contemporaneity of Act and Intention in Crimes" by Geoffrey Marston in the Law Quarterly Review, vol. 86 (1970), p. 208. (at p359)

23. One matter remains for brief mention. As early as the notes to Reg. v. Saunders and Archer (1575) 2 Plowd 473 (75 ER 706) references occur to what may be the effect of countermanding a previously given instruction to perform an illegal act. As recently as Reg. v. Becerra and Cooper (1975) 62 Cr App R 212 the matter was adverted to; in that instance in the case of a criminal act done in pursuit of a common design, an initial participant there sought to be absolved from criminal responsibility because of his withdrawal from the common design before it had been fully consummated. An accused's withdrawal from a projected crime, evidenced by his countermanding of its execution, the situation referred to in the note on Saunders and Archer (1575) 2 Plowd, at pp 475-476 (75 ER, at pp 709-711) , may, where his confederate ignores the countermand, exemplify the intervention of a new cause. The confederate's own independent resolve to commit the crime may be seen as superseding and displacing as a cause the accused's original instruction to commit the crime in question. I would, with respect, adopt the view of the Victorian Court of Criminal Appeal that cases such as that do not otherwise assist in the present case. The problem presented by Becerra, that of the need for timely withdrawal and timely communication of an intention to abandon a common purpose, also bears, although less directly, upon this same aspect of causation but in doing so cannot advance the applicant's case. (at p360)

24. I would grant special leave to appeal and would dismiss the appeal. (at p360)

JACOBS J. The question which arises in this matter is not whether the applicant objectively "caused" the drug to be imported into Australia. The question rather is whether it was proved that at the relevant time or times he had the intent necessary for him to be found criminally liable. It was for the prosecution to prove that intent but it could satisfy the onus by proving all the circumstances and asking that an inference be drawn that the applicant had the necessary intent. If the applicant had done nothing after his arrival in Australia to stop the package arriving the intent which existed when he consigned the package in Singapore could, and no doubt would, have been found to be present at the time of importation. The intent to import must exist at the time of importation. The act of consignment in Singapore was not itself an act of importation nor was it an act the inevitable physical consequences of which, unless reversed, would be importation. The cases on physical consequence of an otherwise completed action and the irrelevance of a change of intent between the act and the final consequences of such act as for instance between shooting or poisoning and death in cases of murder are concerned with a different question, that of causation. Here there was a setting in train of a course of events which not by physical consequence but by human agency would or might result in importation. (at p360)

2. However where a person has set in train events which he believes will lead to importation and therefore at that time has the intent to import it can hardly be said that that intent ceases to exist unless something happens which leads the person to believe that the course of events which he has set in train will not in fact occur. That "something" may be an act of the person himself, or an act of another or a happening. All may affect his state of mind, his belief. The belief must be an honest belief and it must be based on reasonable grounds in the sense that it must be a belief that an ordinary reasonable, that is to say rational, man could hold. Unless such a belief is disproved, there is no intent at the time of importation. (at p361)

3. The onus of disproving the intent lies upon the prosecution but it may be satisfied by evidence from which an inference can be drawn that there was no such honest belief held on grounds reasonable in the sense to which I have referred. Evidence was therefore admissible on the issue of intent concerning what the applicant did or failed to do after his arrival at Sydney Airport and his subsequent arrival in Melbourne. Between 10 a.m. and 9 p.m. on 1st October 1976 he instructed Ansett Airlines to send a message to Singapore to cancel the instruction to forward to Australia the package containing the drug. That message was transmitted within that time. The course that followed and the time which it would take for the message to have effect were matters not within his knowledge or control but evidence of it was relevant as some evidence of whether, when the applicant instructed cancellation, he believed that his instruction would be effective to interrupt the course of events which he had set in train and which he knew would, if it were not interrupted, lead to the importation by him of the drug into Australia. The County Court judge made the following finding:

"10. At the time of the receipt of the signal Exhibit Q, in Singapore, I am unable to make a finding as to whether it was then practicable to retrieve the box or whether the containerization and loading procedures rendered this step impracticable. Impracticable in the sense of this finding, means impracticable having regard to the nature of the cargo sought to be recalled and the low degree of urgency involved. In this regard, I am satisfied that the retrieval of the box would have been impracticable during a period not less than four hours and not more than eight hours before the departure of the flight. My inability to make a finding in this regard stems from the lack of precise evidence of the time of despatch of Exhibit

Q. It follows that I am not able to exclude, as a reasonable possibility, that the appellant gave instructions to cancel the consignment in sufficient time to make the retrieval of the box practicable if all concerned had acted promptly. I am satisfied that Exhibit Q was received in time to make the retrieval of the box physically possible if the matter had been regarded as sufficiently urgent." (at p361)

4. The matters stated in par. 10 of the stated case appear to have been stated with the question of causation in mind rather than the question of the applicant's intention, although they may be relevant to the question whether the applicant had a belief that his instructions would in fact be countermanded. However, there is no finding upon the essential question and therefore the facts stated under s. 85 (1) of the Magistrates' Courts Act 1971 (Vict.), as amended, did not enable the Supreme Court to determine the appeal. The matter should therefore be remitted to the Supreme Court for it to determine whether it will exercise any power to require the County Court to state sufficient facts to enable a determination to be made by it. If the case can no longer be remitted then there is no alternative to a finding that on the facts stated commission of the offence was not proved. I would grant special leave to appeal, allow the appeal and remit the matter to the Supreme Court for the purpose stated. (at p362) (at p362)

MURPHY J. On 11th February 1977, the applicant, Mr. White, pleaded not guilty to an information laid by the respondent alleging that, on 6th October 1976, he had imported into Australia a prohibited import contrary to s. 233B (1) (b) of the Customs Act 1901 (Cth), as amended. He was convicted and sentenced by a magistrate to four months' imprisonment and appealed to the County Court against the conviction and sentence. The appeals were heard on 20th and 23rd May 1977, by his Honour Judge Gray who dismissed the appeal against conviction on 31st May. On 3rd June, the applicant abandoned the appeal against sentence and the judge dismissed it, refusing to state the facts of the case specially for the consideration of the Supreme Court of Victoria. On 28th June, Crockett J. of the Supreme Court (under s. 85 (3) of the Magistrates' Courts Act 1971, as amended (see Magistrates' Courts (Jurisdiction) Act 1973)) ordered Judge Gray to state the facts of the case specially for the consideration of the Full Court of the Supreme Court; Judge Gray did so on the same day. (at p362)

2. The Supreme Court decided that, on the facts as stated, the question should be answered in favour of the applicant (and the appeal upheld) but considered that the judge's reasons, which were not included in the case stated, showed that if the case had been remitted to him for further statement, he undoubtedly would have found that the applicant had caused the importation and on that basis the answer would be unfavourable to the applicant. The Court considered the question on the basis that the case was amended as if the Judge's reasons on this aspect were included. They did this with the consent of both parties, although they were not entitled to do so (see Morrison v. Taylor (1927) VLR 62 ; Morris v. Morris (1958) VR 147, at pp 155-157 ). (at p362)

3. Further complications arose in this Court. The procedure by way of stated case generally is not satisfactory for determination of very difficult questions and except in very simple cases is artificial, time-consuming and expensive. It is not easy to predict and make all the findings an appellate court will consider necessary or relevant. In this instance, the stated case did not supply the facts necessary to give a definite answer to the questions posed by various legal tests of criminal liability which might govern this case in which the applicant changed his original intention to import the goods before the actual importation but after he had set it in train. For this reason this is not a convenient case for consideration of what is the proper test of criminal liability in these circumstances. That is a strong consideration against granting special leave. (at p363)

4. If special leave were granted, should the appeal be allowed? For the purposes of this case, I will assume that the proper test of criminal liability is whether the applicant had done all that he reasonably could to prevent the importation. The stated case does not supply an answer to that test, at least not an answer unfavourable to the applicant. The judge did not deal with this aspect in the stated case. It seems to me that this Court should not infer a finding unfavourable to the applicant. This Court is, as the Supreme Court was, confined to what is stated in the case. (at p363)

5. The case cannot now be remitted for restatement. (Judge Gray ceased to be a County Court judge before the Supreme Court's decision.) The respondent conceded that, if (apart from the deficiency referred to by the Supreme Court) the case did not contain findings which were necessary for the prosecution to succeed, the appeal should be allowed. Therefore, because the case stated does not contain any finding that the applicant had not done all he reasonably could to prevent the importation, the appeal should be allowed. The fact that allowance of the appeal would be on such a technical procedural ground is a further reason for not granting special leave. (at p363)

6. The question whether other charges could have been or could be laid against the applicant does not arise. (at p363)

7. Special leave should not be granted, but if granted, the appeal should be allowed. (at p363)

AICKIN J. I agree with the reasons for judgment of my brother Stephen and have nothing to add. I would therefore grant special leave to appeal but dismiss the appeal. (at p363)

Orders

Application for special leave to appeal granted.