These offences may properly be called offences of strict
liability. Mr Justice Estey so referred to them in Hickeys's
case.
3. Offences of absolute liability where it is
not open to the accused to exculpate himself by showing that he
was free
of fault."
87. Insofar as the Canadian Supreme Court would suggest that the onus of
proving honest and reasonable mistake to a charge
arising out of a statutory
provision of strict liability lies upon the accused, Gibbs C.J. would
obviously disagree. (See p 537).
But otherwise His Honour appears to accept
the tripartite categorisation.
88. Brennan J. also appears to recognise the three possible
categories. He
commenced with, and emphasises strongly, the general rule that, "It is now
firmly established that mens rea is an
essential element in every statutory
offence unless, having regard to the language of the statute and to its
subject matter, it is
excluded expressly or by necessary implication." (p
566). "The requirement of mens rea is at once a reflection of the purpose of
the statute and a humane protection for persons who unwittingly engage in
prohibited conduct." (p 568). He then analyses the concept
of mens rea
itself. In the course of his analysis he draws the distinction between
"knowledge" and "absence of exculpatory belief".
I take this to be a
recognition of the "half-way house", for His Honour then says at p 576:-
"If there are alternative states
of mind - knowledge
or absence of exculpatory belief - that may apply to circumstances
which are external elements of a statutory
offence, how is the
applicable state of mind to be ascertained? Principally by
reference to the language of the statute and
its subject matter.
From those sources, the mischief at which the statute is aimed is
derived, and the purpose of the statute
is perceived. The purpose
of the statute is the surest guide of the legislature's intentions
as to the mental state to be
implied. The ascertainment of the
legislature's intention in the case of a statutory offence is not
likely to be any easier
than the ascertainment of the relevant
mental element in some common law crimes."
89. Although Wilson J. dissented on the conclusion
that mens rea was a
necessary ingredient to the offence created by s. 233B(1) of the Customs Act
his judgment follows those of Gibbs
C.J. and Dawson J. insofar as it
recognised a middle course between the full requirement of mens rea in a
statutory offence and an
offence of absolute liability on the other. At pp
557-8 he says:
"In my opinion, the omission of the words 'without
reasonable
excuse' from par. (b) has the effect of removing mens
rea as an element of the offence which is to be positively
established
by the prosecution in making out a prima facie case.
But this is not to constitute the offence as one of absolute
liability.
It is to give with one qualification the same effect
to the omission as Day J., in Sherras v De Rutzen, gave to the
omission of the word 'knowingly' from the description
of one
offence in the Act there under consideration whilst the words
appeared in another offence in the same section. His
Lordship
said:
'... the only effect of this is to shift the burden of
proof. In cases under sub-s. 1 it is for the prosecution
to prove
the knowledge, while in cases under sub-s. 2 the defendant has to
prove that he did not know. That is the only inference
I draw
from the insertion of the word 'knowingly' in the one sub-section
and its omission in the other.'
The disqualification
is that the word 'prove' in
this passage should not in this context be understood to mean any
more than to 'adduce evidence
of'. In other words, the effect of
the omission of the words 'without reasonable excuse' from par.
(b) is to transfer the
evidential burden, the burden of adducing
evidence, from the prosecution to the defence. It then remains on
the prosecution
to rebut that evidence to the satisfaction of the
jury beyond a reasonable doubt."
90. In New Zealand also the tripartite categorisation
has been recognised in
R v Strawbridge (1970) NZLR 909. In that case the Court of Appeal approved
with one qualification, the remarks of Edwards J. in R v Ewart (1906) NZLR 709
at 731. Those remarks were:
"There are, therefore, two classes of cases under
the statute law - 1, those in which, following
the common-law
rule, a guilty mind must either be necessarily inferred from the
nature of the act done or must be established
by independent
evidence; 2, those in which, either from the language or the scope
and object of the enactment to be construed,
it is made plain that
the Legislature intended to prohibit the act absolutely, and the
question of the existence of a guilty
mind is only relevant for
the purpose of determining the quantum of punishment following the
offence. There is also a third
class in which, although from the
omission from the statute of the words 'knowingly' or 'wilfully'
it is not necessary to aver
in the indictment that the offence
charged was 'knowingly' or 'wilfully' committed, or to prove a
guilty mind, and the commission
of the act in itself prima facie
imports an offence, yet the person charged may still discharge
himself by proving to the satisfaction
of the tribunal which tries
him that in fact he had not a guilty mind."
91. The qualification which the Court of Appeal placed
on those remarks was
that the onus of proof did not pass to the accused in the third class referred
to by His Honour. Furthermore
the New Zealand Court of Appeal considered that
Woolmington's case constituted no obstacle to this half-way house despite the
concerns
expressed by Lord Pearce in Sweet v Parsley [1969] UKHL 1; (1970) AC 132 at 157-8.
92. If it has become recognised that a statutory offence can, so far as the
ingredients of proof are concerned, fall into
three categories, that does not
increase the difficulty of statutory interpretation in this area by one third.
Rather, it makes it
somewhat easier; for most of the difficulties so far have
been caused by the understandable reluctance of courts to place the defendant
in a position where he might be convicted without at least being given a
chance to raise circumstances of honest and reasonable mistake.
The attraction
of the half-way house is that it can give effect to the intention of the
legislature (where that intention appears)
to achieve protection of social or
national interests by legislation making the actus reus itself the offence and
thereby relieving
the prosecution of the sometimes difficult task of proving
intent; but still preventing obvious injustice if a reasonable doubt can
be
raised as to honest and reasonable mistake.
93. In my view therefore there will be a growing tendency to take the middle
course
in statutory offences, though always starting with the presumption that
mens rea is not displaced without some good reason being
shown. If, however,
mens rea can be shown to have been displaced in does not follow that the court
should leap to the opposite extreme
of absolute liability. Rather the
presumption, if mens rea is displaced, should be of strict liability unless
the words of the statute
are so clear and unambiguous as to admit of no other
construction.
94. I am, of course, well aware that in the case of He Kaw Teh
v The Queen,
which must necessarily now be the leading case on this subject, the majority
of the High Court held that mens rea applied
to both offences to the full
extent. But, as I have mentioned, one factor in that decision was the
severity of the penalty and their
Honours in examining the intention of the
legislature were conscious, as Brennan J. put it at p 583, of "the enormity of
convicting
a person of one of these offences if he were innocently ignorant of
the contents of a container he had imported or the nature of
a substance that
he had imported if the contents of the substance turned out to be narcotic
goods."
95. In the light of these observations
I turn to the two charges against the
appellant in this case, and examine into which category each may fall. For,
by reason of certain
defences open in one case but not the other, it is
possible that they may fall into different categories.
96. The first task is
to look at the purpose of the Act. It can be seen at
once that the Act is one of great importance economically and politically to
the preservation of Australian fishing interests in those waters over which
the Australian government desires to exert its control.
It is clearly
designed to regulate and control fishing and fishing boats in such waters. It
does this basically by ministerial prohibition
of various fishing activities
(s. 8) and by the issue of licences (s. 9). Various offences are defined which
essentially consist
of doing certain things in such waters without the
requisite licence. Ss. 13, 13A, 13AB, 13B, 13BA and 13BB are directly
concerned
with the fishing activities of foreign boats in proclaimed waters
comprised in the Australian Fishing Zone, and there is no doubt
that the Act
intends control over foreign boats for these purposes. Officers of the
Commonwealth or the States including members
of the Defence Force are
authorised to board, search, arrest or generally take over control of a
foreign boat and its crew for the
purposes of policing the Act (s. 10) and
interference in the carrying out of these duties is itself an offence (s. 14).
97. "With
the Zone so greatly extended, policing and, where necessary,
appropriate arrest and prosecution involves the utilization of very
considerable resources time and national expenditure" (per Muirhead J. Hwang
Ming Huei v Mellon (1980) 5 NTR 9 at 15.)
98. All these matters seem to me to make the Act one of national importance
and strongly to suggest that for the proper
and efficient carrying out of its
purposes it is not considered necessary in any prosecution for an offence
under the Act, and provided
that the prohibited act is proved, to establish
knowledge in the accused that the act was a prohibited act.
99. Furthermore, although
there seems to be no case directly in point, there
is dicta of high authority for this conclusion.
100. In Cheatley v The Queen
[1972] HCA 63; (1972) 127 CLR 291 the appeal to the High Court
was against the penalty imposed for an offence of using a foreign boat for
fishing in Australian waters.
The penalty imposed was a fine on the master of
the boat and forfeiture of the boat. It was submitted that since the boat was
not
the property of the master and the master had not been convicted of an
offence, the boat could not be forfeited. The High Court
rejected the
submission.
101. In his judgment Barwick C.J. observed that the court was not concerned
with the validity of the conviction
of the master (p 295). He then said pp
295-6:
"The section is universal in its scope as to the
persons upon whom its prohibitions
are placed. It opens with the
words 'a person', without qualification. Its specification of
what may not be done clearly
includes acts which need not
necessarily and indeed usually will not be done by the owner of a
foreign fishing boat. Such
a boat is by definition a boat owned
by a person not resident, or a company not incorporated, in
Australia or in a territory
of Australia. The evident purpose of
the section is to protect Australian fishing grounds from
exploitation by the use of
foreign boats without the permission of
an Australian official.
For the offence the section creates to have been committed,
the
foreign boat must have been intruded into and used for fishing in
the proclaimed waters on a declared fishing zone. If
that
intrusion and use is deliberate the likelihood of it being done
without the complicity of the owner of the boat must be
small. If
it is accidental the circumstance will be weighed in the exercise
of any available discretion."
102. The last sentence
seems clearly enough to suggest that His Honour felt
that accidental intrusion was no defence.
103. See also Hwang Ming Huei v Mellon
(1980) 5 NTR 9 where Muirhead J. was
dealing with appeals against severity of sentence for offences of fishing in
proclaimed or restricted waters.
In the context of his reasoning in which he
observes (p 14) "there was nothing accidental or casual about the offences
with which
I am dealing", it seems plain that His Honour regarded the question
of accident as a matter to be considered in mitigation of penalty
but not as a
defence to the charge itself.
104. It is true that in Fang Chinn Fa v Puffett (1978) 22 alr 149 (another
case of appeal
against sentence) Gallop J. at one point (P 153) referred to
the "defence of accident"; but since he then reduced penalties because
of
another type of accidental intrusion into Australian waters, and referred to
"the accidental aspect of the offences" I take him
to be using the phrase as
an element of mitigation rather than a real defence.
105. In Ostle v Lahoya (1983) 14 ACR 315 the appellant was charged with two
offences under the Western Australian Fisheries Act. Those offences consisted
of in Western Australian
waters using a foreign boat for taking fish and in
Western Australian waters using a foreign boat for carrying fish taken with
the
use of the boat. The Full Court of Western Australian did not
specifically advert to the concept of mens rea but it is clear in
their
judgments that their Honours considered the offence established when the
ingredients contained in the statute were made out.
In dealing with the 2
offences Rowland J. said at pp 320-1:-
"Subsection (2)(b) is also in exceedingly wide
terms and it seems
to be of no moment that the fish therein
referred to may have been taken outside Western Australian waters.
The offence is
using a foreign boat for carrying that category of
fish in Western Australian waters.
Subsection (3)(a) gives a hint of the
width of the words used in
subs (2)(a) becuase it provides that it is a defence to a
prosecution if there is a licence authorising
'the use of the boat
for that purpose'.
In my view, from the use of the words themselves, supported as
they are by the other
provisions in the section, the purpose for
which the boat is being used is relevant and if the purpose is for
taking fish then
any use of a foreign boat that accommodates that
purpose offends against the section.
The second appeal relates to the respondent
being acquitted of an
offence against s. 29A(1)(b). This offence occurred at a
different time to that of the first offence.
No defence under
subs (3) was available to the respondent. Once it is established,
as it was in this case, that a foreign
boat is within Western
Australian waters carrying fish that have been caught or captured
with the use of that boat, then the
offence is established."
106. I am therefore satisfied that the general purpose of the Act requires an
interpretation which does
not import mens rea in the sense I have mentioned
into the two offences with which the appellant was charged. Although it
might
seem that that conclusion should be the more easily drawn from the terms
of s. 13AB, because specific defences are mentioned in s.
13AB(3), an
examination of those defences indicates that they are provided only as
incidental to the general licensing provisions
of the Act and to allow foreign
fishing boats rights of passage in Australian waters provided that permission
is obtained from the
authorities and the fishing equipment is properly
secured. Such a limited exception would not in itself exclude other defences.
107. Accordingly I am satisfied that both offences are offences at least of
strict liability. In accordance with the principles
previously stated I am,
however, unable to see that they should be regarded as offences of absolute
liability. The fact that monetary
penalties only are provided as neutral to
this examination. So is the dictum of Barwick C.J. apparently negativing
accidental circumstances;
for I take His Honour to use the term in the sense
which the O.E.D. gives of "happening by chance", "undesignedly",
"unexpectedly".
In this sense a ship straying accidentally into the
Australian Fishing Zone and there fishing without a licence would, on the
principles
of both strict and absolute liability be guilty since it is
sufficient for the prosecution to prove he did the prohibited act. If
the
defendant, however, was acting under an honest and reasonable mistake he would
not be acting undesignedly and what he was doing
would not be by chance. He
would intend to do what he was doing acting on his honest and reasonable
belief that what he was doing
was lawful or permitted.
108. The purpose of relieving the difficulties of prosecution is adequately
achieved by strict liability
and it would not become necessary for the
prosecution to rebut honest and reasonable mistake unless circumstances were
raised making
that appropriate. It would normally, I expect, be difficult to
raise such circumstances. For instance, as I have already suggested, to stray
accidentally into
the Australian Fishing Zone would not create such
circumstances. Honest and reasonable mistake created by failure or
malfunctioning
of navigation instruments may occur. But in these days of
cross-checking and alternative instruments one would hardly expect the
Court
to be particularly impressed by a mere assertion of that nature. Similarly an
honest and reasonable mistake that the accused
had the appropriate licence
could no doubt occur in very special circumstances. (c.f. Kidd v Reeves
[1972] VicRp 64; (1972) VR 563). The adoption here of the concept of strict liability would
still recognise the policy of the Act, still facilitate what would otherwise
be a difficult task for the prosecution but still allow the occasion for an
innocent person to escape conviction for an offence in
circumstances where no
questions of morality or policy could justify a conviction. Furthermore it
recognises that before the full
rigour of absolute liability is imposed an Act
must indicate so expressly or by very strong implication and I am not
persuaded that
the Fisheries Act demands that interpretation.
THE FORMAL PROOFS and GROUNDS 2(c) and (d)
109. In the present case, pursuant to
s. 16, certificates were tendered to
the effect that:-
(a) during the period in which the Ming Yang
21 was arrested it
was not an Australian boat.
(b) that the area of waters in which the Ming
Yang was found was during the relevant period
part of the
Australian fishing zone.
(c) that such area was part of proclaimed waters.
(d) that the appellant was
not the holder of a
licence to be in charge of a boat for fishing in the area of
proclaimed waters.
(e) that no person
was the holder of a licence
authorising Ming Yang 21 for the purpose of taking fish in the
area of proclaimed waters.
110.
Pursuant to s. 16(4) these certificates were prima facie evidence of the
matters specified in them; and no challenge was made to
them in the
proceedings before the learned stipendiary magistrate, or in the present
proceedings.
111. It follows that ground 2(c)
which submits that the Magistrate was in
error in finding that the appellant's vessel was not at the relevant time
within proclaimed
waters of the Australian Fishing Zone cannot be sustained.
112. Insofar as ground (d) submits that the Magistrate admitted evidence
of
an entirely hearsay nature in relation to the position of the boundaries of
the Zone that ground is not appropriate because of
the formal proofs. The
balance of that ground is dealt with in the remarks relating to grounds 2(g)
and (h).
THE CASE PROVED
113.
These certificates, coupled with the proofs given by the witnesses
called for the prosecution established -
- that on or
about 24 March 1985 the
appellant did in an area of proclaimed waters comprised in the
Australian fishing zone have in his
charge and without a licence a
foreign boat equipped for fishing.
- that on or about 24 March 1985 the
appellant in
an area of proclaimed waters comprised in the
Australian fishing zone did without a licence use a foreign boat
for processing
fish.
- Having established those matters without contest it would seem
inevitable that the prosecution should succeed unless
the Magistrate would
entertain some reasonable doubt about the proof of those matters. Nothing
appears to suggest that; and I am
certainly not persuaded that anything the
appellant said to the prosecution witnesses raised any real suggestion of
honest and reasonable
mistake. All that appears is that the appellant first
told Mr Morris that his radar and satellite navigator were in working order,
admitted that his ship had come to its present position on 24 March at 3am
when he had set lines and said he had caught a thousand
kilograms of fish. He
admitted marking the position on a chart but when he was asked if he knew his
ship was fishing in Australian
waters he said he did not and then became
perturbed and said his engines were very bad. (Transcript p 53-4). He noted
on a chart
a position of one of the areas he had fished which was within the
Australian fishing zone (p 54-6). At some stage after he had been
asked if he
had been fishing in Australian waters he said something to the effect that he
had navigation problems (p 50). Mr Morris
says that "once I indicated to the
captain that he was fishing in the Australian fishing zone he became very very
agitated indeed.
He became very unco-operative.
- Now, while the prosecution bears the onus of proof throughout, it does
not have to meet non-existent cases. Until circumstances could be shown to
raise the
possibility of honest and reasonable mistake the prosecution did not
have to rebut that. Kidd v Reeves [1972] VicRp 64; (1972) VR 563. In the present case it does
not seem to me that honest and reasonable mistake was ever seriously raised.
But if I am wrong about
this, and the appellant's rather vague remarks that
his engines were bad and he had navigation problems and did not know he was in
Australian waters - remarks which were contradictory of his earlier statements
and actions, - if those remarks sufficiently raised
honest and reasonable
mistake then, in my view, the prosecution proved beyond reasonable doubt that
the appellant did not have an
honest and reasonable mistake as to his
whereabouts. It seems plain that he knew where he was and in view of his
earlier answers
his later ones seem no more than a rather feeble attempt to
exculpate himself after he realised he was in trouble. Furthermore at
no stage
did he elaborate on these remarks or explain how his engines or navigation was
at fault. I would have no doubt that he
was not labouring under any honest
and reasonable mistake.
- and to boundary delimitation are not perfectly clear.
Indonesia's view is that every country is entitled
to a
continental shelf of at least 200 nautical miles (nm) if no other
country's interests are affected (regardless of whether
or not the
shelf actually extends that far), so that where the adjacent or
opposite coastlines are less than 400 miles apart,
as in the case
of Timor and Australia, a median line would be appropriate.
Australia does not accept that view, maintaining,
on the contrary,
that there are two separate propositions embodied
in Article 76 of the Law of the Sea Convention. The first
is that
the coastal state is entitled to exercise jurisdiction over its
continental shelf throughout its natural prolongation. The second
is
that where the continental shelf does not extend out to 200 nm,
the coastal state is entitled to exercise jurisdiction over the
seabed, regardless of its nature, out to 200nm."
He then summarises the provisional fishing agreement of 29 October 1981.
"A
Provisional Fisheries Arrangement was negotiated
with Indonesia also in 1981 to overcome the practical problems of
overlapping
fisheries jurisdictions. The fisheries delimitation
roughly follows the median line, except in the west where it comes
close
to Ashmore and Cartier Islands. This arrangement was
expressed to be without prejudice to the position of either
Government
in on-going seabed delimitation negotiations.
Jurisdiction over sedentary species is governed by the 1971 and
1972 seabed boundary
agreements."
- The basis of this agreement for the purposes of the present case is the
understanding as set out in paragraphs
1 and 2 of Memorandum of Understanding
between Indonesia and Australia:-
"(1) It is accepted by both Governments that a