The Court of Criminal Appeal determines the question of law referred to it by the Honourable the Attorney-General in this cause, pursuant to s388AA of the Criminal Code, by making the following declaration:

"The learned trial judge was not wrong in law in directing that where honest and reasonable mistake as to consent was raised, the Crown needed to prove beyond reasonable doubt that that belief either did not exist or was not reasonable."

1 The Attorney-General has referred to the Court of Criminal Appeal, under the provisions of s388AA of the Criminal Code, a question of law which arose in a case in which the respondent was acquitted of three counts of rape. An issue having been raised whether the accused had an honest and reasonable belief that the complainant was consenting to an act of sexual intercourse at the relevant time, the question is whether the learned trial judge was right in directing the jury that the Crown carried the onus of proving beyond reasonable doubt that such belief did not exist or that it was not reasonable. That direction was given in accordance with the principle of Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462, that the onus lies on the prosecution in a criminal trial to prove beyond reasonable doubt all the elements of the offence with which the accused is charged. The direction was contrary to the decision of this Court in Regina v Martin [1963] Tas SR 103, and also to its application in R v Ingram [1972] Tas SR 250. It was held in Martin that under the Tasmanian Criminal Code the onus of proof of the existence of such honest and reasonable belief, considered as a substantive defence under s14, which is to say, one relating to the external elements of a crime and not to its mental elements, lay on the accused on a balance of probabilities. The language of s14 is general language, but in so far as such a belief applies to negate the mental elements of a crime, whether they be embodied in the operation of s13 of the Code or in the definition of the offence, then the onus of course would be upon the Crown to prove the existence of any mental element according to the criminal standard.

2 The learned trial judge in the present case evidently acted upon the view that the effect of Martin's case in relation to that onus of proof had been overruled by the High Court of Australia in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523. Whether that view is correct and should be followed in future is effectively the question before us. The answer does not depend upon any difference between the crimes of bigamy and rape because the rule exemplified by Martin's case is one of general application in respect of all crimes under the Code or to which the Code applies.

3 In Martin, the crime charged was bigamy, under s193(1) of the Criminal Code, which made it a crime for a married person to go through a form of marriage. No mental element was involved in the definition of the offence, in contrast with the other type of bigamous offence, under s193(2), which included the word "knowingly". (The section has since been repealed). Two questions were before the court; namely whether on such a charge of bigamy under the Code it was a ground of exculpation that the accused at the relevant time had an honest and reasonable belief that his lawful marriage had been dissolved; and if it was, whether the accused carried the burden of proving this on a balance of probabilities. All three members of the court held in the affirmative on both questions, though the reasoning by which those conclusions were reached exhibited certain differences of opinion as to the meaning and application of s14 of the Criminal Code. While the court was unanimous in holding that the relevant onus of proof lay on the accused, Burbury CJ reached that conclusion, as he said (ibid, at pp 127, 128), from his exegesis of the meaning and effect within the Code of the defence under s14, whereas Crawford J and I reached it on the basis that since by the application of s14 and if necessary s8 of the Code the defence was open, and it was in essence the common law defence, the relevant onus of proof also fell to be determined according to the existing common law.

4 Crawford J and I reached our respective conclusions upon examination of the relevant cases down to that time, and particularly of Reg v Reynhoudt (1962) 106 CLR 381 - see Reg v Martin (supra) at p140 and p154. Whether Burbury CJ would have adhered to his decision in the light of He Kaw Teh's case I think it would be presumptuous for one to form an opinion, but I shall proceed here, upon the assumption that Crawford J and I as a majority in Martin's case decided correctly, to consider whether it should still be held that under the Code as at common law the onus of proving this defence lies upon the accused. The proposition that the common law for the purpose is that which it is authoritatively declared from time to time to be must be a controlling factor in such consideration - see eg per Burbury CJ in Reg v Martin (supra at p110) and per Gibson J in Murray v The Queen [1962] Tas SR 170, at p172.

5 The common law in Australia as to onus of proof of honest and reasonable mistake is no longer what we held it to be in Martin's case. The occasion for the present reference by the Attorney-General has been the decision of the High Court of Australia in He Kaw Teh v The Queen (supra) and its effect if any upon the earlier decisions of this Court above-mentioned. In He Kaw Teh the High Court was concerned with a case in which a person had been the subject of two charges under the Commonwealth Customs Act - one of importing a quantity of heroin into Australia, and the other of being in possession of the same quantity of heroin without reasonable excuse. The trial judge had directed the jury that the Crown did not have to prove the existence of any particular state of mind in relation to either offence - that is, that proof of mens rea by the prosecution was not required. He further directed them that a defence of honest and reasonable belief in a state of facts which if true would make his act innocent was open to the accused on the first charge; and that on the second, two defences were open. These were that he had a reasonable excuse for possession, and that he did not know the goods had been imported by him into Australia in contravention of the Customs Act. However, his Honour also directed the jury that the accused carried the onus of proving on a balance of probabilities each of the three defences. The accused was convicted and appealed. His appeal was dismissed by the Victorian Court of Criminal Appeal.

6 The justices of the High Court found it necessary to consider two questions mainly - namely, whether the trial judge was right in directing the jury, in effect, that the prosecution was not required to prove any mens rea in relation to either offence, and whether his directions were correct as to the onus of proof in relation to the defences which were open to the accused. The Court held, with one dissentient (Wilson J), that the particular offence did require proof of mens rea by the prosecution, but all the justices held that if the evidence was sufficient to raise an issue whether the accused held an honest and reasonable belief which if true would exonerate him, then the onus lay upon the prosecution to disprove the existence of such a belief beyond reasonable doubt. The manner in which each of their Honours expressed that view leaves no doubt, in my opinion, that it must be regarded as the law for Australia in respect of that matter, and that accordingly the effect of Martin's case in that respect must be taken to be over-ruled.

7 The most apposite of the judgments for our present purpose is that of Dawson J His Honour pointed out that the English cases have not made use of honest and reasonable mistake in the sense of being a defence only, rather than as a negation of the existence of a guilty mind; and that as thus used the former is, in effect, part of the common law of Australia. His Honour said (supra) at p591:-

"The English cases are of limited assistance in this area because the courts there have not taken up the defence of honest and reasonable mistake and see themselves as having to decide between an offence requiring mens rea to be proved as an ingredient and absolute liability which excludes guilty intent entirely. Although there are those in England who have been attracted by what has been called 'the half way house' of strict liability, the concept has not been adopted there: see Sweet v Parsley [1969] UKHL 1; [1970] AC 132, esp at pp150-158, 164. This is, perhaps, surprising since the modern application of the concept begins with Reg v Tolson (supra), and in particular, the judgment of Cave J; see also Sherras v De Rutzen [1895] 1 QB 918. But it is unnecessary to pursue the divergent development of the law in England. In this country it is well established by authorities that whatever the presumption, if any, that mens rea, to be proved by the prosecution, is an ingredient of the statutory offence, there does exist a presumption that honest and reasonable mistake is to be treated as a ground of exculpation. It is commonly referred to as a defence, and to prove honest and reasonable mistake meant, in a common law setting and at the time when the ultimate burden of proof upon all issues did not rest so positively upon the prosecution, the same thing as is establishing the absence of intent; Bank of New South Wales v Piper [1897] AC 303, at pp389-390."

"Since the decision in Woolmington v Director of Public Prosecutions (supra) it is for the prosecution to prove beyond reasonable doubt the elements of a crime, including any mental element. That means that honest and reasonable mistake as a composite concept now has a part to play only in statutory offences where the legislature has excluded guilty intent as an ingredient of an offence to be proved by the prosecution, leaving the absence of mens rea to be raised by way of exculpation. Thus at common law, because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case: see Reg v Morgan [1975] UKHL 3; [1976] AC 182. There, if the offence is not one of absolute liability, honest and reasonable mistake survives by implication as a basis of exculpation. It is, therefore, understandable why it continues to be referred to as a defence: it must normally be raised by the accused on evidence adduced by him. ............................ ..................................... There is, however, no justification since Woolmington v Director of Public Prosecutions (supra) for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of proving the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. A governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted."

8 The expression of the same opinion by Gibbs CJ was, it would appear, obiter dictum, but was stated very positively nevertheless. His Honour said (ibid, pp534-535):-

"I should say immediately that if s233B(1)(b) does not require the prosecution to prove guilty knowledge, but has the effect that an accused is entitled to be acquitted if he acted with the honest and reasonable belief that his baggage contained no narcotic goods, in my opinion the onus of proving the absence of any such belief is on the prosecution. Maher v Musson [1934] HCA 64; (1934) 52 CLR 100 suggests the contrary, but that case was decided before Woolmington v Director of Public Prosecutions, supra. In Proudman v Dayman (1941) 67 CLR at p54, Dixon J may have intended to say that the accused bore only an evidentiary onus, but his words were somewhat equivocal, and in Sweet v Parsley Lord Pearce and Lord Diplock understood them in different senses. In some later cases judges still spoke as though the onus of proof lay on the accused: see Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at pp141, 149-151; Bergin v Stack (1953) 88 CLR p261, and Reg v Reynhoudt (supra). However it has now become more generally recognised, consistently with principle, that provided that there is evidence which raises the question the jury cannot convict unless they are satisfied that the accused did not act under the honest and reasonable mistake: see Ianella v French (1968) 119 CLR at pp110-111; Kidd v Reeves [1972] VicRp 64; [1972] VR 563, at p565; Mayer v Marchant (1973) 5 SASR 567, but cf Reg v Bonnor [1957] VicRp 33; [1957] VR 227. This view has also been accepted in New Zealand: Reg v Strawbridge [1970] NZLR 909. As I have said, it is in my opinion the correct view."

Mason J (as he was then) agreed with the judgment of Gibbs CJ Wilson J, the dissentient on the mens rea question, said nevertheless, after a long discussion of the present question (at pp558-559):-

"In my opinion, then, it should now be taken to be the law in Australia that in order to present a prima facie case of an offence under s233B(1)(b) of the Act it is not necessary for the Crown to establish guilty knowledge on the part of the accused. In the absence of evidence to the contrary such knowledge would be presumed, but if there was some evidence that an accused person honestly believed on reasonable grounds that his act was innocent then he is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so. I have taken the substance of this formulation from the decision of the New Zealand Court of Appeal in Strawbridge (supra). The conclusion is also in line with the opinion of a number of judges within Australia who have had occasion to consider the general problems in Strawbridge: Bray CJ and Zelling J in Mayer v Marchant (supra); Menhennitt J in Kidd v Reeves (supra) and Demack J in Gardiner [1981] Qd R 394; (1979) 27 ALR 140; Starke J in Parsons [1983] 2 ER 499 (with Young CJ and King J declining to endorse the correctness of the opposing view); and finally by members of this Court: Menzies and Gibbs JJ. in Samuels v Stokes [1973] HCA 62; (1973) 130 CLR 490; Barwick CJ, Mason and Aickin JJ. in Cameron v Holt [1980] HCA 5; (1980) 142 CLR 342. It may be desirable to add that I am unable as at present advised to draw a distinction between a defence of honest and reasonable mistake and one of honest and reasonable ignorance of the presence or nature of the goods in question. The conclusion also has the merit of bringing the common law in Australia on the question of honest and reasonable mistake into line with the law in the Code States of Queensland, Western Australia and Tasmania: cf Brimblecombe v Duncan; Ex Parte Duncan [1958] Qd R 8; Geraldton Fishermans Co-operative Ltd. v Munro [1963] WAR 129. This is an important consideration where the exercise of Federal jurisdiction is concerned."

In saying that his conclusion would be in line with the law in the Code States including Tasmania, his Honour was overlooking Martin's case (supra), but he was probably thinking of what Sir Owen Dixon had said in Packett v The King about the onus under the Tasmanian Criminal Code lying upon the prosecution to disprove provocation, on a charge of murder; see (1938) 58 CLR 213-214. Brennan J, also, after a discussion of the cases, said (at p573):-

"In earlier times, criminal responsibility was imposed upon or imputed to an accused upon proof of the external elements alone: see J W C Turner, Russell on Crime, 12th ed (1964), vol 1 at pp33-34. An honest and reasonable but mistaken belief in a state of facts which would make the supposed offender's act innocent was therefore treated as an excuse for or a true exception to criminal responsibility: see by way of example, Stephen's Digest of the Criminal Law, 3rd ed (1883), Ch III, 'General Exceptions'. The origin of that state of mind as an exception is reflected in the exculpatory form in which it appears in the Criminal Codes which adopt Sir Samuel Griffith's draft, as Windeyer J pointed out in Mamote-Kulang v The Queen [1964] HCA 21; (1964) 111 CLR 62, at pp76-77. But since Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 it has come to be recognised that the prosecution bears the ultimate onus of negativing 'defences' under the Codes: see Packett v The King (supra); Brimblecombe v Duncan [1958] Qd R 8."

9 This unanimous expression of opinion undoubtedly lays down the common law for Australia in relation to the onus of proof of a defence of honest and reasonable though mistaken belief in the existence of a state of facts which if true would make the act of the accused innocent, where the existence of such a belief does not of itself negative any of the essential ingredients of the crime which the prosecution must prove in order to convict. This rule is a general one, which applies to all crimes under the Code and to which the Code applies; and thus it applies to the defence of honest and reasonable mistake in a charge of rape.

10 The foregoing would be enough to answer the Reference, except for a further argument submitted by the Crown, based on s110 of the Evidence Act 1910. This section provides:-

"110 It shall not be necessary -

(a) in any indictment; or

(b) in any complaint made before a justice,

to specify or negative, nor for the prosecutor or complainant to prove, any exemption, exception, proviso, condition, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, by-law, regulation, order, or other document creating the offence; but where any such exemption, exception, proviso, condition, excuse, or qualification shall be relied upon by the defendant, the proof thereof shall lie upon him."

It is submitted that this provision applies to such a case as the present, since the existence of an honest and reasonable belief within the meaning of s14 of the Criminal Code is an "excuse" for the purpose of s110 of the Evidence Act. The same issue was raised in Martin's case, but because of the way in which the main question was decided it was not necessary to resolve it. In my opinion there is no substance in this argument because s110 only applies where the "exemption, exception, proviso, condition, excuse, or qualification" is laid down in the statute which creates the offence.

11 Similar evidentiary provisions have been common in the United Kingdom and in countries which follow the British legal tradition since the new system of courts of summary jurisdiction was instituted in Britain by the Summary Jurisdiction Act 1848 (Jervis' Act). The various provisions, though varied in their detail, followed basically the same pattern, and even then they reduced to statutory form, with modification, a common law rule of long standing. The history of the matter is fully dealt with by the Court of Appeal in Reg v Edwards [1975] 1 QB 27, where the Court after expounding the historical aspects stated the general nature of such evidentiary provisions in this form - "If a statute lays down that an act is prohibited except in the case of persons who are excepted, the onus is on the defendant to prove that he is within the excepted class" - ibid, at p37. Their Lordships further said of the common law rule which was replaced by evidentiary provisions of this kind:-

"In our judgment this line of authority establishes that over the centuries the common law, as the result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception."

12 A similar conclusion was expressed in the House of Lords in the earlier case, Nimmo v Alexander Cowan & Sons Ltd. [1968] AC 107, by Lord Pearson, who also set out some of the relevant history, and stated the rule in this way (at p136):-

"The provisions of section 16 (d) [the relevant provision setting out the exception - my interpolation] seem to me for the present purpose to say that if some enactment prima facie requires a stated result to be achieved but provides the defenders with a possible excuse, then it is for the defenders to prove the facts by which they contend they are excused."

Statements to a similar effect are to be found also in the following Australian cases - Ex parte Ferguson; re Alexander and Another (1945) 45 SR(NSW) 64, per Jordan CJ at pp 66-67; McNee v Kay [1953] VicLawRp 71; [1953] VLR 520, at pp540-542; Everard v Opperman [1958] VicRp 62; [1958] VR 389, at pp391-392, per Sholl J.

13 Section 110 of the Tasmanian Evidence Act is a descendent of earlier provisions of this kind and is meant to achieve the same purpose. It only applies where the exception, excuse etc. is set out and expressed as such in the enactment creating the offence, whether or not it accompanies the description of the offence in "the same section". The implication within the wording of the section itself is that the exception or excuse is to be set out within the same enactment. This contention by the Crown therefore does not affect the opinion earlier expressed.

14 The Attorney-General's Reference should be answered accordingly.

15 I have read the reasons for judgment prepared by Neasey J I agree with them and with the answer he proposes.

16 I agree with the reasons for judgment prepared by Neasey J which I have had the advantage of reading. I agree with the answer he proposes.

17 I have read the reasons for judgment written by Neasey J I agree with them. I also agree that the reference be answered in the manner he proposes.

18 I agree with Neasey J and have nothing further to add.