MJ Bennett v R [1991] TASSC 5

Supreme Court of Tasmania|1991-03-26|Before: Green CJ, Crawford JJ

1. Application for leave to argue that the decision in Snow

GREEN CJ This is an appeal against the appellant's convictions on two counts of rape and one count of abduction. The trial judge had directed the jury as to the mental elements of the crime of rape in accordance with the decision of the Court of Criminal Appeal in Snow v. The Queen (1962) Tas SR 271. Pursuant to the decision of the Court of Criminal Appeal in Gardenal-Williams v. The Queen 23/1989 the appellant applied for leave to argue that the decision in Snow's case should not be followed. This Court refused the application and indicated that reasons would be published later. Following the court's refusal of his application the appellant presented no further argument and his appeal was dismissed. I now publish my reasons for concluding that the application for leave to argue that Snow's case should not be followed should be refused.

3. The appellant submitted in essence that the decision in Snow's case was wrong or should be regarded as having been overruled because the court did not approach the interpretation of the Criminal Code and in particular Chapter IV of the Code which relates to criminal responsibility in accordance with recent decisions of the High Court including in particular Cameron v. Holt [1980] HCA 5; (1980) 142 CLR 342 and He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523 which decisions counsel for the appellant submitted have changed the way in which penal statutes should be interpreted. Counsel submitted that those cases re-affirm the principle stated in Sherras v. De Rutzen (1895) 1 QB 918 at p 921 that

"There is a presumption that mens rea, an evil intention, or

a knowledge of the wrongfulness of the act, is an essential

ingredient in every offence; but that presumption is liable

to be displaced either by the words of the statute creating

the offence or by the subject-matter with which it deals, and

both must be considered."

4. Counsel also referred to the observations made by Gibbs CJ in He Kaw Teh v. The Queen (supra) at pp 528 and 529 that although "there has in the past been a tendency in Australia to regard this presumption as only a weak one, ... it has recently been re-affirmed in the Judicial Committee and the House of Lords ... and in the (High Court) in Cameron v. Holt." Counsel submitted that the decision in Snow's case was erroneous because the Court did not approach its determination of what is the mental element of rape in accordance with the principles stated in He Kaw Teh (supra) by starting with the presumption that a particular form of guilty intent is required and then considering whether the Code had displaced that presumption but instead held that "the first step in determining the mental elements in the crime of rape under the Tasmanian Criminal Code is to consider the statutory definition of the crime itself and then to consider the application to the elements of the crime so defined the general provisions of Chapter IV of the Code relating to criminal responsibility." Per Burbury CJ and Cox J at p 275.

5. The approach adopted by Burbury CJ and Cox J in Snow's was in accordance with what Neasey J characterised in Arnol's case (supra) at p 168 as a:

"... basic tenet of the Code; namely that, in the words of

Crisp J used in Vallance's Case, (1960) Tas SR 51, at p 86,

cited with approval by Burbury CJ and Cox J, in Snow v.

The Queen, (1962) Tas SR 271, at p 278, Ch IV of the Code,

comprising ss. 12 to 55 inclusive, '... is both by design and

in expression comprehensive and authoritative so as to

exclude competing or supplementary common law doctrine in

relation both to the actus reus and the mens rea of every

crime therein provided for.'

Burbury CJ and Cox J went further in the passage cited,

and said, (subject to a qualification not here material):

'We think that ss. 12 to 17 inclusive must be taken to state

exhaustively the general principles of criminal

responsibility relating to the mental element in crime

(including insanity and intoxication)'."

6. Neasey J expressed his agreement with everything said in those passages. The same principle was recognised by Dixon CJ in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56 when he referred at p 60 to "... the plan upon which the Code is conceived and, to some but perhaps to no great extent, drafted. The plan was to provide for specific crimes but to treat the complete definition of them as finally governed or controlled by Ch IV (criminal responsibility)" and by Windeyer J in the same case who at p 78 express ed the opinion that the provisions of Ch IV of the Code were "... obviously intended to have general application and to state fundamental principles of criminal responsibility. The one sentence (appearing in s.13(1)) compresses and comprehends the common law doctrine concerning mens rea. It does more than that. It supplants it. So that now, as Griffith CJ said of a similar provision in the Queensland Code, the aim of which he well understood, 'it is never necessary to have recourse to the old doctrine of mens rea'."

7. In my view acceptance of counsel's submissions would involve a great deal more than merely concluding that Snow's case was wrongly decided. It would involve substantially changing the view which has hitherto been held of the significance of the fact that the instrument which we are construing is a code as opposed to an ordinary statute. Even if the authorities relied upon by counsel for the appellant have effected as radical an alteration to the principles governing the interpretation of penal statutes as he submits they have, which I doubt, there is nothing in those cases to suggest that the common law presumption as to mens rea referred to in them applies to the construction of a code such as the Tasmanian Criminal Code which contains its own provisions as to the mental elements of crimes. In particular nothing in the authorities cited by counsel has had the effect of requiring this Court to abandon or re-examine the "basic tenet" which has informed the way in which this Court and the High Court have approached the interpretation of the Criminal Code for at least the last thirty years.

8. Nothing put by the appellant persuaded me that there was any occasion to reconsider the decision in Snow's case and I therefore concluded that the application for leave to argue that it should not be followed should be refused.

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