MASON C.J., DEANE AND DAWSON JJ.: In He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523, it was established that, in a prosecution for an offence against s.233B(1)(b) of the Customs Act 1901 (Cth), the prosecution must prove that the accused has acted with mens rea, that is to say, with a guilty mind. There was, however, a degree of divergence between the majority judgments in He Kaw Teh which makes it desirable that we indicate in succinct terms what will, at least in the ordinary case of a prosecution for such an offence, be necessary to discharge that onus.

2. Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

3. Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.

4. The applicant in the present case brought into Australia, from Turkey, three plastic bags or sachets of heroin (being more than 200 grams) in powder form. They were concealed in the base of a Turkish samovar or tea urn which was in a parcel in the applicant's suit case. Shortly after the discovery of the substance at Tullamarine Airport in Melbourne, the applicant agreed with (on his own account) or volunteered (on the police account) the suggestion that the powder might be heroin. In his unsworn statement, the applicant claimed that he had been given the parcel containing the samovar and other items by a stranger who had approached him out of the blue at Yalitski Airport in Turkey. This stranger had asked the applicant "which way" he was travelling and had been told by the applicant that he was going "to Australia". According to the applicant, the stranger had then asked him to take the parcel containing the samovar "to Australia" where it would be picked up from him at the airport "as soon as" he arrived in Australia by other strangers, who would have been informed by telephone of "the colour of (his) coat" and that he had a limp. His case was that he was unaware that the samovar contained anything concealed in its base. Indeed, according to the account which the applicant gave the police, he had himself, at the airport in Turkey, when allegedly asked by the stranger to import the parcel into Australia, been concerned about whether it contained drugs or a bomb. Both in that account to the police and in his unsworn statement at the trial, the applicant claimed that he had opened the parcel and examined its contents at the airport in Turkey without detecting the substance in the base of the samovar.

5. In that context, the only issue on the trial went to mens rea. There was no contest that the applicant had brought in the heroin from overseas. The applicant had, according to his own account, been concerned about the possibility that the samovar might contain drugs or a bomb and had actually inspected the samovar without discovering its contents. Plainly, the "real" issue of fact in the case was that which was expressly identified as such by the learned trial judge, namely, whether the applicant was aware that the samovar contained anything concealed in its base. It was not, and could not seriously have been, contended on behalf of the applicant at the trial that there was a reasonable possibility that if, contrary to the whole of his case, he actually knew that there was some substance concealed in the samovar, he was unaware of the likelihood that it was a narcotic drug.

6. On the question of mens rea, the learned trial judge directed the jury that the "third element" in the case, "where the real contest between the Crown and the accused" lay, was the element of "knowledge". His Honour was aware that this Court had reserved judgment in He Kaw Teh and seems to have made an understandable attempt to anticipate what the content of that judgment would be. The essence of his Honour's charge in relation to knowledge and intent was as follows:

"Now, let me relate that third element specifically

something of which he did not know what it was, and

it means he chose simply not to worry as to what it

established, obviously, but the Crown does not have

in that samovar, and you might well think that that

is good sense again, that is good sense, because if

I bring in a samovar from another country, and if I

7. In the light of the subsequent decision of this Court in He Kaw Teh, two comments need to be made about that direction to the jury. The first is that in relation to the central or real issue of fact on the trial, it was unduly favourable to the applicant. It was not necessary that the applicant actually knew that there was some unidentified substance in the samovar; the requisite intent may rest upon something less than actual knowledge, such as awareness of the likelihood of its presence. The second is that the direction was also mistaken in that it would not necessarily suffice for the applicant simply to have closed his eyes to the nature of any substance in the samovar; it was necessary that there be circumstances, such as an awareness by the accused that any such substance might be a narcotic drug, to enable intent to be inferred on the criminal standard of proof. In theory, the direction was in this latter respect unduly unfavourable to the applicant. In fact, of course, there was not, and it is difficult to see how there could feasibly have been, a real issue between the Crown and the applicant about whether, if it were established beyond reasonable doubt that the applicant was aware of the likelihood that there was a concealed substance in the samovar, he was unaware of the likelihood that any such concealed substance was a narcotic drug. As we have said, the burden of his own account of what had occurred was that he had been aware of the likelihood that the parcel handed to him by a stranger might contain drugs or a bomb and had inspected its contents to make sure that it did not.

8. In these circumstances, the overall effect of the learned trial judge's summing up was, in the context of the trial, unduly favourable to the applicant in that, in relation to the only real issue, it required that the jury be satisfied beyond reasonable doubt that the accused actually knew that there was a substance concealed in the samovar whereas, as a practical matter, awareness of the likelihood of the presence of the substance would, in relation to that issue of fact, have sufficed. Indeed, it is not surprising that counsel for the applicant at the trial was at pains to express to the learned trial judge his enthusiastic approval of his Honour's "model" directions on the relevant issue. In this respect, we should mention that it has not been suggested that there would have been any significant difference in the issues raised at the trial by the evidence and the applicant's unsworn statement if it had been appreciated that the law was as laid down by this Court in He Kaw Teh.

9. For these reasons we think that it would be quite fanciful, in the context of the trial and the unmistakable inferences to be drawn from the jury's verdict of guilty, to suggest that there has been a possible miscarriage of justice in that the misdirection of the learned trial judge in relation to intent deprived the applicant of any real chance of acquittal which he otherwise might have possessed. To the contrary, the only practical effect of the learned trial judge's understandable inability to anticipate precisely this Court's judgment in He Kaw Teh was, in the context of the trial, to afford to the applicant a real additional chance of an acquittal to which the law did not entitle him. That being so, the case is one in which the proviso to s.568(1) of the Crimes Act 1958 (Vict.) should be applied in that, as Crockett J. pointed out in the Court of Criminal Appeal, "there has been no substantial miscarriage (of justice) by reason of any misdirection" in relation to the relevant count in the indictment.

10. In the result we would refuse special leave to appeal.

TOOHEY AND GAUDRON JJ.: This is an application for special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria dismissing an appeal by the applicant against his conviction by the County Court of Victoria on 11 June 1985.

2. The charge upon which the applicant was convicted and in respect of which he seeks leave to appeal was that on 10 March 1983 at Melbourne, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth), he imported into Australia prohibited imports to which s.233B of the Act applied, namely narcotic goods consisting of 209 grams of heroin.

3. The applicant was arrested following a search of his suitcase by customs officers at Tullamarine Airport. He had arrived from Turkey and in his suitcase was found a Turkish samovar in which was concealed a quantity of heroin. Questioned about the samovar, the applicant asserted that it had been given to him by an unknown man at the airport in Turkey, to be given by him in turn to two men who would be waiting at the airport in Melbourne. The applicant said that he agreed to do this favour but was unaware that the samovar had anything hidden in it, let alone anything that was a prohibited import. It was part of his defence at trial that he had no knowledge that he was importing heroin.

4. In directing the jury, the learned trial judge told them of the elements necessary to be established by the Crown beyond reasonable doubt. The first element was that the applicant had imported something. The second element was that the thing imported was a prohibited import, namely heroin. There is no complaint about his Honour's direction in these respects. The complaint relates to what his Honour described as a third element, one that he said did not arise from the language of the Customs Act but rather from the fact that the applicant was facing a criminal prosecution. The element, said his Honour, was that of knowledge. At this point it is necessary to set out at some length what the trial judge told the jury:

" Now, let me relate that third element

specifically to the evidence in this case. It is

obvious that he knew that he was bringing in the

samovar; it is obvious, because he told you so

himself. To establish the third element the

Crown has to satisfy you beyond reasonable doubt

that he also knew that there was something in the

samovar, something which he either knew was

heroin or something of which he did not know what

it was, and simply closed his mind to it. Closed

his mind to it means he chose simply not to worry

as to what it was. Now, if he knew it was heroin

well, then, obviously, the third element of

knowledge is established, obviously, but the

Crown does not have to prove that he knew it was

heroin; the Crown only has to prove that he knew

there was something in that samovar, and you

might well think that that is good sense again,

that is good sense, because if I bring in a

samovar from another country, and if I know there

is something in that samovar and I simply close

my eyes to it, I do not want to know - I know it

is in there, but I do not want to know what it

is, well, then, you might well think that it is

only fair that I should take the consequences, if

that something turns out to be a prohibited

import. So there you have the three elements of

the first charge, A, that he brought the powder

in from overseas - bear in mind these are three

elements the Crown has to prove to your

satisfaction beyond reasonable doubt, A, that he

brought the powder in from overseas, B, that the

powder was, in fact, heroin, and C, that he knew

that there was something in that samovar."

5. It is apparent that his Honour directed the jury that, so long as the Crown established beyond reasonable doubt that the applicant was aware that there was something in the samovar, any requirement that the applicant knew he was importing a prohibited import was satisfied. The jury was charged in June 1985. On 11 July 1985 this Court handed down judgment in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523. The Court held that, in a prosecution for an offence against s.233B(1)(b) of the Customs Act, the prosecution bore the onus of proving that the accused knew that he was importing a prohibited import. Views were expressed by members of the Court as to what might constitute the requisite knowledge and that is a matter to which it will be necessary to return. But on any view of the decision in He Kaw Teh, the trial judge's direction to the jury that it was enough that the applicant be aware that the samovar contained something, was a misdirection. Indeed, so much was conceded by the Crown on the hearing of this application.

6. In the end the Crown's primary contention was that, notwithstanding the misdirection, it was a misdirection favourable to the applicant because it spoke of the need for the Crown to prove beyond reasonable doubt that the accused knew there was something in the samovar, wilful blindness being relevant only to what the contents might be. In consequence, it was said, no substantial miscarriage of justice had occurred thereby. We do not accept this contention. The misdirection was a serious one because it diverted the jury from a consideration of what was an essential element of the prosecution's case. Assuming that the jury acted in accordance with his Honour's direction, once they concluded that the Crown had established beyond reasonable doubt that the applicant was aware that there was something in the samovar, they would have thought it unnecessary and irrelevant to give their attention to the applicant's awareness of what the samovar contained and in particular his awareness that it contained a prohibited import. The jury must have concluded that the applicant knew there was something in the samovar; but no inference can fairly be drawn as to what their conclusion might have been had they been told that an essential element of the Crown's case was the applicant's knowledge that the samovar contained a prohibited import.

7. In those circumstances it would be inappropriate to apply the proviso to s.568(1) of the Crimes Act 1958 (Vict.) which authorizes dismissal of an appeal, notwithstanding a misdirection, where the Court is of opinion that no substantial miscarriage of justice has occurred. The misdirection was on a fundamental question and, in the light of He Kaw Teh, it was a serious misdirection. In those circumstances and having regard to the positive case put forward by the applicant at his trial that he knew nothing of the contents of the samovar, the proviso should not be applied.

8. There may be cases in which an accused's unawareness that he was bringing into the country a prohibited import may simply not have arisen as a reasonable possibility. This may have been because the case was fought on other grounds, such as that the accused did not bring anything into the country, in circumstances where if the jury rejected that particular defence it was inevitable that they would conclude that the accused was aware he was bringing into the country a prohibited import. To put the matter in that way may perhaps suggest some alteration of the onus of proof but it is not intended to do so. It is merely to draw attention to those cases where it may fairly be said that, notwithstanding the misdirection, there was no likelihood of a miscarriage of justice. This is not such a case.

9. It is important to bear in mind that knowledge, in relation to an offence of importation under s.233B(1)(b) of the Customs Act, is an element of the criminal intent which must be established by the prosecution. The relevant intent is to import a prohibited import, in this case heroin.

10. In He Kaw Teh Gibbs C.J., with whom Mason J. agreed, said, at p.536, of the charge of importation of prohibited goods:

" On any view of the effect of the section, if the

suspicions of an incoming traveller are aroused,

and he deliberately refrains from making any

inquiries for fear that he may learn the truth,

his wilful blindness may be treated as equivalent

to knowledge. If he is given a bag or parcel to

carry into Australia in suspicious circumstances,

or if there is something suspicious about the

appearance, feel or weight of his own baggage,

and he deliberately fails to inquire further, the

jury may well be satisfied that he wilfully shut

his eyes to the probability that he was carrying

narcotics and for that reason should be treated

as having the necessary guilty knowledge."

11. Brennan J. did not expressly address this question, but he formulated the knowledge requisite to establish intention to import prohibited imports when in a container (as is here the case) as knowledge "... at the time when he imported the container, that it contained or was likely to contain narcotic goods, or that it contained or was likely to contain an object that was or was likely to be narcotic goods" (p.585). That formulation was preceded by a lengthy examination of the law relating to mens rea. It is helpful to set out a short extract from that examination at p.570:

" That is not to say that some state of mind less

than knowledge is sufficient to establish intent.

Actual knowledge is required (Giorgianni v. The

Queen [1985] HCA 29; (1985) 156 CLR 473, at pp 504-507) but

what is generally required to be known is at

least the likelihood that the prescribed result

of an act will occur (specific intent) or at

least the likelihood that the existing

circumstances are such as to give an act the

character of the act involved in the commission

of the offence in question (general intent)."

12. The formulations by Gibbs C.J. and Brennan J. are suggestive of differences, but are reconcilable if refraining from making inquiry is regarded in appropriate circumstances as an example of knowledge of likelihood sufficient to establish the necessary criminal intent. However, the notion of refraining from making inquiries is sometimes erected into a doctrine of wilful blindness. In that respect it is the subject of an article by Professor Lanham, "Wilful Blindness and the Criminal Law", (1985) 9 Crim. L.J. 261. In our view there are real dangers, as Professor Lanham recognizes, in seeking to apply some doctrine of wilful blindness to the criminal law and in particular to a prosecution under s.233B(1)(b) of the Customs Act. The basic question for the jury is whether the Crown has discharged the onus of proving that the accused intended to import a prohibited import, which requires at the least knowledge of the likelihood that what is being imported is a prohibited import. If there was nothing to arouse the accused's suspicion, it is hard to see how the Crown could discharge the onus of proof. If there was evidence from which the jury might reasonably conclude that the accused's suspicions were aroused but that he deliberately refrained from making further inquiries, the jury might properly conclude in all the circumstances that he knew that the goods were likely to be prohibited imports, or where, as here, the goods were in a container, that it was likely to contain narcotic goods. But it would have done so, not by applying a doctrine of wilful blindness, but simply by treating the question as an evidentiary one - and deciding whether the Crown had proved beyond reasonable doubt that the accused intended to bring into the country a prohibited import. That approach is in accord with what was said by Brennan J. in He Kaw Teh, and is not inconsistent with what was said by Gibbs C.J.

13. In our view special leave should be granted, the appeal allowed and a new trial ordered. In these circumstances a jury should be instructed in accordance with the principles to which we have just referred. The matter should not be unduly complicated by converting what is essentially a question of evidence into one of principle.

14. It was argued, against the granting of special leave, that counsel for the applicant at his trial had not objected to the summing up. There are two answers to this argument. The first is that where an appellate court is satisfied that a miscarriage of justice occurred, the appeal will be allowed, despite the failure of counsel to object. The authorities are collected in Chamberlain v. The Queen [1983] FCA 78; (1983) 72 FLR 1, at p 12; [1983] FCA 78; 46 ALR 493, at pp 501-502. The second answer is that, as the law stood before He Kaw Teh and at the time the trial judge directed the jury, his Honour's directions were, if anything, unduly favourable to the applicant. Judgment in He Kaw Teh was then pending and it seems that his Honour gave directions in accordance with what he thought was the likely outcome of that appeal. As it turned out, the directions fell short of the test propounded by this Court. But we do not think counsel can be criticized or his client prejudiced by a failure to ask the trial judge to direct the jury according to a test that was less favourable to the applicant and that, in any event, was not the appropriate test.