2 Section 233BAB(5) provides:

(1) A person is guilty of an offence against this subsection if:

(a) the person intentionally imported goods; and

(b) the goods were tier 2 goods and the person was reckless as to that fact; and

(c) their importation:

(i) was prohibited under this Act absolutely; or

(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.

Maximum penalty: A fine not exceeding 2,500 penalty units or imprisonment for 10 years, or both.

3 "Tier 2 goods" are defined to include items of child pornography.[1] Child pornography is defined as follows:

[A]n item is to be taken to be an item of child pornography if it is a document or other goods:

(a) that depicts a person:

(i) who is, or who appears to be, under 16 years of a age, and

(ii) who is involved in a sexual pose or in sexual activity, whether or not in the presence of other persons; and

(b) that is likely to cause offence to a reasonable adult.[2]

4 On 22 May 2002 Mr Hann had travelled from Adelaide to Bangkok. On 29 May 2002 he returned to Adelaide on a Singapore Airline flight. A search of his baggage by customs officers revealed four video discs. One was labelled "Innocent Girl in Sex - 15 year old". It was accepted that Mr Hann had intended to import the video discs.

5 The Crown led evidence from two customs officers and tendered relevant documentary material. The video disc the subject of the conviction was tendered and shown to the magistrate. At the close of the Crown case the magistrate found a case to answer. Mr Hann and one other witness gave evidence on behalf of the defence.

6 The magistrate found the charge proved. He gave ex tempore reasons. He concluded that the Crown had established that the female depicted in the video appeared under the age of 16 years. He also concluded that the sexual activity of that person depicted in the video was likely to cause offence to a reasonable adult.

7 On appeal there was no challenge to these findings. There was also no challenge to the finding that Mr Hann had imported "tier 2 goods" into Australia. The only issue on appeal was whether the magistrate was correct in concluding that the Crown had proved beyond reasonable doubt that Mr Hann was reckless as to the fact that the video disc was within the category of tier 2 goods.

8 It was submitted by counsel for the Crown that the question of whether the goods were "tier 2 goods" was "a circumstance" within the meaning of section 5.4(1) of the Criminal Code.[3] "Recklessness" is defined in section 5.4 of the Criminal Code as follows:

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances know to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

9 The magistrate concluded that Mr Hann was aware of the substantial risk that he was importing tier 2 goods into Australia:

In my opinion the appropriate inference to be drawn from this answer, which is also, consistent of course with the answer provided by Mr Hann to question 109. Is that there was an awareness, an expressed awareness of the accompanying document that accompanied the CD in question in count two. I refer particularly to the words contained within the complaint and contained within the accompanying literature 'Innocent girl in sex 15 year old'. I repeat it is appropriate in my opinion to find as I do, that on his entry into Australia, that Mr Hann was aware of the accompanying document and as a consequence of his awareness of the accompanying document, it is appropriate referring to Section 5(4) of the Criminal Code to consider the matter. Dealing with this and realising of course that one is required to deal with the matter on a subjective basis, that is from a point of view of the citizen, it is appropriate to find that being in possession and of aware of the accompanying document, referring as it does expressly to the content of the CD contained within the exhibit and referring of course as I do to count two, it is appropriate to find that Mr Hann was aware of a substantial risk that with the language of the code that the circumstances exist or will exist, and further that in those circumstances that were known I find, to Mr Hann, that it was unjustifiable to take that risk. It is appropriate therefore to conclude as I do that the prosecution have established the requisite elements that are required for count two, and accordingly count two in my opinion has been proved. Count one however, for the reasons that I have already referred to should be dismissed.

10 In the course of the trial a dispute arose as to how many items of baggage Mr Hann carried in the cabin of the aircraft on the flight to Australia. It was the Crown case that he carried one bag as well as a duty free bag in the cabin. It was said that the disc the subject of the charge was in the cabin baggage and Mr Hann had taken the opportunity to read the title 'Innocent Girl in Sex - 15 year old' whilst travelling to Adelaide. The defence contended that all four bags were in the luggage hold and were not carried in the cabin of the aircraft. Mr Hann's case was that he only had the duty free bag in the cabin. He claimed not to have looked at the video disc whilst flying to Adelaide. The magistrate concluded:

The inference should in my opinion be drawn from the whole of the evidence including particularly the ticket stubs that accompany the ticket Exhibit P5, that in fact there was a bag packed by Mr Hann which contained personal items which in fact accompanied him within the cabin area throughout the journey, contrary to his evidence on this topic. It is obvious that four bags and three stubs simply do not equate. In my opinion the irresistible inference is that one of those bags accompanied him within the aircraft itself and were not contained within the hold of the aircraft on the journey. That is that not all the bags were in fact checked in at the Bangkok airport not to be seen by him until his later arrival at the Adelaide International Airport. That is a topic, which does go to Mr Hann's credit.

11 On appeal, counsel for the Crown accepted that this finding could not be sustained. The magistrate had misunderstood the evidence relating to the 'stubs'. It was accepted that the erroneous finding adversely affected the magistrate's view of Mr Hann's credit.

12 Counsel for the Crown contended that notwithstanding this error of fact the appeal against the conviction should be dismissed. It was submitted that the Crown had proved the case beyond reasonable doubt on the unchallenged evidence.

13 Dina Maria Marangon, a customs officer gave evidence that she was a supervisor on duty at the Adelaide International Airport on 29 March 2002. A search of Mr Hann's bags was undertaken by Ms Marangon. The search disclosed four video discs. Ms Marangon's evidence included:

Q. Did you find anything in Mr Hann's luggage.

A. Yes I found four CDs.

Q. Do you recall where you found those CDs.

1. Yes I located 4 CDs in the black and red small carry bag they were wrapped in, an elastic band around them, wrapped in plastic.

Q. When you say wrapped in plastic what do you mean.

A. In a plastic bag.

Q. Do you recall there being anything else in that plastic bag.

1. There was other CDs as well but I don't recall the names or anything like that.

Q. Do you recall how the other CDs were packaged.

A. Yes packed in a CD holder.

...

A. I asked Mr Hann -

I said 'What are these?'

He said 'CDs.'

I said 'What sort of CDs?'

He said 'Blue movies, you can buy them anywhere in Australia.'

I said 'I was referring to one of the CDs because it was titled Innocent girl in sex 15 year old?'

I said 'Does this contain minors under 16 years old?'

He said 'No, that's the way they sell them at the markets.'

...

A. I said 'How do you know it doesn't contain minors under 16 years old?'

He said 'As I said that's the way they sell them at the markets.'

14 A short time later Ms Marangon conducted a tape recorded interview with Mr Hann. In the course of that interview the following interchanges occurred:

1. I'll now show you some of the items that we found in your baggage a short time ago, right, mainly being as I said, this CD that says...

A. Yeah, right.

Q. ...'Innocent Girl 15 Year Old in Sex?'

A. Yeah, I know.

1. Well, I'm just going to identify that just for identification purposes. Can you tell me more about these goods?

A. What happened there was that they were on sale...

...

1. A friend asked me if I could get him some CDs. Sex CDs, okay? And they were on sale in packs; in a pack of four like that, right. Four for 200 Baht, right, which is about $10 Australian. With a rubber band around them. I knew...I picked them up, paid the 200 Baht and chucked them in my case. I haven't looked at them.

1. Well, I don't...I needed...they're supposedly porn videos but do they work, well - they're four for 200 Baht. Do they work? What's on them? I don't know what's on them.

Q. Where did you obtain these goods?

A. In Bangkok.

Q. How did you obtain these goods?

A. Off the street in Bangkok.

Q. When did you obtain these goods?

A. When? Yesterday morning. Tuesday. Tuesday morning the 28th.

...

Q. What bag? What bag did you put them in?

1. I don't know they went in; they went in. I just chucked them in with some Thai CDs for my wife. I just chucked them in and as you know, they came out the same bag as the Thai CDs. I didn't even look at them. They were in a plastic bag with some Thai music CDs.

1. ...what I'm saying to you and I'm saying to...true that I didn't even see that and I if I'd seen that, I would never even have bought it. You know, I would...I would...I'm not into that kind of stuff.

...

Q. Now, is there anything else that you would like to tell me about this matter?

1. What I'd like to tell you is that I honestly didn't look at them videos. I didn't know what was on those videos, I just grabbed them - I grabbed the four videos, paid the money and put them in with my CDs for my wife. I didn't even - I wouldn't even know what they called until you read it out a minute ago, that was the first I knew what they were called, you know.

15 Mr Hann gave evidence that shortly before leaving Thailand to return to Australia he went to Chinatown in Bangkok to purchase mobile phone chargers. He was in the company of a Mrs Ausne Toy and a Mrs Pongtip Somerfield. Both his companions were Thai. They went to the Chinatown street markets and purchased mobile chargers. Mr Hann then went to look for karaoke CDs for his wife. He purchased karaoke CDs and placed them in a plastic bag. He then came to a table with a Thai man selling pornographic CDs. His evidence continued:

Q You see this table full of pornographic CDs, what do you do next?

1. I just looked on the table and I pointed to a pack that was there and I said, 'I'll have them ones, thanks'.

Q Can you describe the packet, how many were in it?

1. Well, it had a sign there 'four for 200 baht', so obviously I took it there was four in a pack for 200 baht, and they had a rubber band around them and I just said, 'I'll have them'. The chap picked them up, put them into a small plastic bag. I opened my karaoke bag and just dropped them straight in to my karaoke bag.

Q Can you describe anything else about the CD bundle?

1. The one I pointed to - the bundle I pointed to had - the top CD had nurses and housewives on it.

. . .

Q How much attention did you pay to the bundle?

1. Not a lot, not a lot of attention. I just glanced on the table at first, I looked at the price. I glanced at the table, looked at the price and just pointed to that bundle there, you know.
2. What was your knowledge of the CDs that were contained underneath the top one?

A Well, I didn't have any knowledge.

. . .

Q Whereabouts, to the best of your knowledge, did you place the CDs?

1. I can't remember, I can't remember honestly which bag I chucked the CDs into.
2. From the time you bought the CDs in question until the time that Customs Officer Marangon opened your bag, how much attention did you pay to the CDs?

1. What was your reaction when Customs Officer Marangon showed you a CD that had a title, 'Innocent girl in sex 15 years old'?

A I was just shocked. I didn't know that I had that CD with me.

Mrs Somerfield described Mr Hann's purchase of the CDs:

Q So did you see CDs when you were looking around on that first day?

A Everywhere sell them.

Q Including porn CDs?

1. Yes, and they not show you the - I just understand now cannot bring here and they just, you know, sometime they pack, they put in under. When you say 'Just buy porn CD' they just give you, you know. This - like 100 or 200 in the pack for you.

1. No, no because Thai people and they have no idea about Australian cannot bring this, cannot bring that.
2. So the place that Mr Hann bought the porn CDs, was that like that - it had the CDs under the counter?
3. Some the got on the top already with - with four, five on the top and they got a lot - sometime you know like the police kept - them gone for one, two days, they come back again, then just show and then sometime the police come, they just put in there, only just take the table, go somewhere you know.
4. So the place that Mr Hann bought those CDs had CDs under the counter as well?

A No, they got in the top.

Q In like a compartment or in a cupboard?

1. Like the table like this, they're just pack, pack, pack, pack for 100 or 200 like four five, four five CD but I explain to you in mean in Thailand sometime the police just catch them on then two day they come back again.

Q So they're not really allowed to sell them?

A Not allowed but they give the money to the police.

16 Counsel for the Crown submitted this court should reconsider the evidence and should dismiss the appeal. It was contended that having regard to the unchallenged evidence of the customs officer, Mr Hann's own evidence and that of Mrs Somerfield, the Crown had proved each element of the offence beyond reasonable doubt.

17 The magistrate did not make any finding concerning the circumstances of the purchase of the pornographic compact discs or the discussion between Mr Hann and Ms Marangon before the tape recorded interview. These matters, although not addressed by the magistrate in his extempore reasons, were raised and debated at trial.

18 Counsel for the Crown submitted that the conversation between Mr Hann and Ms Marangon allowed the conclusion that Mr Hann was aware of the title of the compact disc. It was suggested that Mr Hann's response was not one of shock or surprise, but rather a response of some awareness and the provision of an immediate explanation. The explanation proffered was to the effect "This is the way they market these CDs in Bangkok. They do not involve child pornography but they are marketed in that way to attract buyers".

19 Counsel for the Crown submitted that the circumstances of the purchase of the pornographic discs alone were sufficient to give rise to the awareness of a substantial risk on the part of Mr Hann that he was purchasing child pornography. He purchased four pornographic video discs without making any check of the labels, descriptions or contents of three. This circumstance taken together with the statements made to Ms Marangon made out the Crown case.

20 Counsel for Mr Hann submitted that the accepted factual error on the part of the magistrate necessarily meant that the conviction should be set aside and a retrial ordered. It was said that the issue of awareness of substantial risk raised a question about Mr Hann's state of mind. The issue of his credibility was crucial.

21 As earlier observed counsel for Mr Hann acknowledged that all but one of the elements of the offence had been established. It was accepted that one video disc contained child pornography. That video disc was within the statutory meaning of "tier 2 goods". It was accepted that Mr Hann intentionally imported the video disc and that the importation was prohibited. The element that remained to be proved beyond reasonable doubt was whether Mr Hann was reckless as to the fact that the video disc contained child pornography.

22 As earlier noted, section 5.4 of the Criminal Code provides a definition of recklessness. This definition is premised on the proposition that criminal liability should not be imposed unless the accused had knowledge of the substantial risk that his or her conduct was criminal, or knowledge of the substantial risk that his or her conduct would result in a prohibited harm. [4]

23 In order to establish recklessness under the Criminal Code, knowledge of a risk of harm or illegality must be established and that risk must be 'substantial'. The requirement that the risk be substantial gives rise to conceptual problems and may vary depending on the context and gravity of the criminal activity. For example, a finding of recklessness with respect to conduct resulting in death is sufficient to establish the mens rea for murder. But recklessness is also an essential element of many trivial offences under federal law. This 'irreducible indeterminacy of meaning' appears to be a deliberate attempt by the Legislature to provide flexibility having regard to the vast range of offences covered by the Code. [5]

24 The phrase 'substantial risk' raises the same issues of indeterminacy as the terms 'likely' and 'probable' in the common law. Academic and judicial commentary on the meaning of these terms is diverse. Criminal law commentators have suggested that the requirement of substantial risk varies in stringency with the gravity of the conduct that gave rise to the risk. Many agree that 'substantial risk' can include 'possible risk' in offences other than murder.[6]

25 There appears to be no case law directly discussing the meaning of 'awareness of substantial risk' in section 5.4 of the Criminal Code.[7] The term 'substantial risk' does not appear to be defined in Australian legal dictionaries. However Carswell's Words and Phrases,[8] an American legal dictionary, describes the phrase as meaning 'real and apparent on the evidence presented ... not a risk that is without substance or which is fanciful or speculative'. The word 'substantial' has been described in Australian legal dictionaries as 'real or of substance as distinct from ephemeral or nominal'.[9] 'Risk' has been described as 'a possibility, chance or likelihood'.[10]

26 In order to establish recklessness under the Criminal Code it must also be shown that the defendant was aware of the substantial risk. Conscious awareness of risk is required; it is not enough to show that the risk was obvious or well known.

27 In light of these descriptions, it can be said that 'aware of a substantial risk' in the context of this case conveys the meaning that the appellant was actually aware of the real or substantial possibility that that video disc was within the category of "tier 2 goods".

28 Division 9 of the Criminal Code also has application to the present case. It provides a defence to the fault elements of criminal offences covered by the Criminal Code on the grounds of mistaken belief or ignorance of fact. Section 9.1(2) of the Criminal Code provides:

(1) A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

(2) In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.

29 Given the requirement of awareness of risk or intention under the Code, this provision is unnecessary.[11] If mistaken belief or ignorance of a fact is established, it will negate a finding of intention, knowledge or recklessness.

30 To prove that Mr Hann was reckless it was necessary for the Crown to establish beyond reasonable doubt that Mr Hann was aware of the substantial risk the video disc contained child pornography at the time of importation and that it was unjustifiable for Mr Hann to take the risk.

31 On appeal counsel accepted that any case based on actual knowledge of contents would necessarily lead to the need for a retrial given the magistrate's credit findings. However it was said that a finding of recklessness could be pursued on appeal on the basis of the unchallenged evidence.

32 The following facts were established beyond reasonable doubt:

- In May 2002 Mr Hann travelled from Adelaide to Bangkok and whilst in Bangkok Mr Hann formed the intention to purchase pornographic video discs for a friend.

- Mr Hann approached the vendor of pornographic video discs at a table in a street market.

- Mr Hann decided to purchase four video discs that he believed contained pornography. The label on the cover of the top of the four discs suggested pornography. However, the four discs were held together by a rubber band. The labels to the other three video discs could not be observed.

- Mr Hann purchased the four video discs without making any check or enquiry about the nature of the pornographic material in the further three video discs.

- Mr Hann then imported the video discs into Australia by bringing them with him from Bangkok to Adelaide.

- Following a customs search the four video discs were located in Mr Hann's luggage. When asked what they were Mr Hann responded they were 'blue movies' that could be purchased anywhere in Australia.

- When the customs officer drew Mr Hann's attention to the fact that one of the video discs had a cover title indicative that the contents contained child pornography Mr Hann responded that the video disc did not contain child pornography. He asserted "That's the way they sell them at the markets." When he was asked again how did he know that the video discs do not contain child pornography he responded "As I said that's the way they sell them at the markets."

- When interviewed Mr Hann said he obtained the video discs "off the street" in Bangkok. He said "Do they work? What's on them? I don't know what's on them." ... "I just chucked them in with some Thai CDs for my wife .... I didn't even look at them ... What I tell you is that I honestly didn't look at them videos. I didn't know what was on those videos. I just grabbed them - I grabbed the four videos, paid the money and put them in with my CDs for my wife. I didn't even - I wouldn't even know what they called until you read it out a minute ago that was the first I knew that they were called you know."

- Mr Hann did nothing to enquire about or ascertain the contents of three of the four discs. The contents of the top disc may have suggested that the disc contained adult pornography.

- Mr Hann did no more than glance at a bundle of video discs that he believed contained pornography and enquire about the price before purchasing the video discs.

33 The evidence and these findings allow the conclusion to be reached beyond reasonable doubt that Mr Hann was aware there was a risk that the bundle of four video discs contained child pornography. The risk existed because Mr Hann made no enquiry as to the content of the disc. He purchased the video discs in an unregulated market from a street table at a market in Bangkok. He made no enquiry as to content. To purchase pornographic material in these circumstances carried the obvious risk that the pornography may be other than adult pornography and may include child pornography. That risk was not remote or fanciful; to the contrary the risk was substantial. I am satisfied that it was unjustifiable for Mr Hann to take that risk. I am satisfied that the element of recklessness has been established beyond reasonable doubt. The charge has been proved beyond reasonable doubt.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 Section 233BAB(1)(h) of the Customs Act, Regulation 179AA(3) and Schedule 1AAA of the Customs Regulations 1926 (Cth) and Regulation 4A(1) of the Customs (Prohibited Imports) Regulations 1956 (Cth)

2 Section 233BAB(3) of the Customs Act 1926 (Cth)

3 This Code is found in the Schedule to the Criminal Code Act 1995 (Cth)

4. Leader-Elliot 'Elements of Liability in the Commonwealth Criminal Code' (2002) 26 Criminal Law Journal 28 at 33-34

5 Attorney General's Department, The Commonwealth Criminal Code - A Guide for Practitioners (March 2002) at 73

6 Attorney General's Department The Commonwealth Criminal Code - A Guide for Practitioners (2002) at 75. See also Fisse, Howard's Criminal Law (1990) 489-491; S Bronitt & B McSherry, Principles of Criminal Law (2001) 183; R Muragason & L McNamara, Outline of Criminal Law (1997) 126; P Gilles, Criminal Law(4th edn, 1997) 64

7 No case law discussing Section 5.4 of the Criminal Code can be found in either Austlii, Butterworths or Thompson databases; Leader-Elliot did not refer to any case law discussing this section in his article.

8 Carswell's Works and Phrases (US) 1993 Volume 7 p. 1206

9 Butterworth's Australian Legal Dictionary (1997) p. 1128; Butterworth's Words and Phrases Legally Defined (1989) Volume 4 p. 474

10 Butterworth's Australian Legal Dictionary (1997) p. 1035

11 Attorney General's Department The Commonwealth Criminal Code - A Guide for Practitioners (2002) at 173

[1] Section 233BAB(3) of the Customs Act, Regulation 179AA(3) and Schedule 1AAA of the Customs Regulations 1926 (Cth) and Regulation 4A(1) of the Customs (Prohibited Imports) Regulations 1956 (Cth)

[2] Section 233BAB(3) of the Customs Act 1926 (Cth)

[3] This Code is found in the Schedule to the Criminal Code Act 1995 (Cth)

[4] Leader-Elliot 'Elements of Liability in the Commonwealth Criminal Code' (2002) 26 Criminal Law Journal 28 at 33-34

[5] Attorney General's Department, The Commonwealth Criminal Code - A Guide for Practitioners (March 2002) at 73

[6] Attorney General's Department The Commonwealth Criminal Code - A Guide for Practitioners (2002) at 75. See also Fisse, Howard's Criminal Law (1990) 489-491; S Bronitt & B McSherry, Principles of Criminal Law (2001) 183; R Muragason & L McNamara, Outline of Criminal Law (1997) 126; P Gilles, Criminal Law(4th edn, 1997) 64

[7] No case law discussing Section 5.4 of the Criminal Code can be found in either Austlii, Butterworths or Thompson databases; Leader-Elliot did not refer to any case law discussing this section in his article.

[8] Carswell's Works and Phrases (US) 1993 Volume 7 p. 1206

[9] Butterworth's Australian Legal Dictionary (1997) p. 1128; Butterworth's Words and Phrases Legally Defined (1989) Volume 4 p. 474

[10] Butterworth's Australian Legal Dictionary (1997) p. 1035

[11] Attorney General's Department The Commonwealth Criminal Code - A Guide for Practitioners (2002) at 173