243 We refer also to the decision of Boland J in Cahill (No 3) at [241]-[251] where his Honour considered, inter alia, the implications of imprisonment for offences categorised as absolute liability offences and the view taken by the Judicial Committee in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1. Although the maximum penalties for the offences under s 40 of the Buildings Ordinance (Laws of Hong Kong, 1981 rev., c. 123) were 'heavy' (a fine of $250,000 and imprisonment for three years) the safety laws were held to be appropriately regarded as absolute liability offences and the requirement for mens rea had been displaced. It is of some relevance to note that by operation of s 12 of the OHS Act, the option of two years' imprisonment of a director or person concerned in the management of the corporation only arises where the individual has been a previous offender; such an individual shall be open to a fine, imprisonment or both.
244 Returning to the decision in R v Davies, another relevant point made by Tuckey LJ concerned the power of inspectors and the contention for the defendant that as the powers of inspectors were very wide, the prosecuting authority would have the capacity to acquire all information before any decision to prosecute is made including information about when and what steps had been taken by the defendant, thereby making a reverse onus unnecessary.
245 In responding to these propositions, Tuckey LJ stated at [22]:
But this may not be so, even in simple cases, because in practice the authority will have been reliant to a large extent on what information the defendant chooses to provide. It will almost certainly not be so in more complex case (sic) where the activity in question of the duty holder involves state of the art technology or highly sophisticated and complicated processes. Here in reality the defendant will be and remain the only person who really knows when and what he has done to avoid the risk in question.
246 We conclude that the effect of reversing the onus of proof on the presumption of innocence does not invalidate s 26 of the OHS Act 2000. We are not here concerned with any conflict with a charter of human rights, but rather a regulatory offence that the parliament has decided should provide for significant penalties in the event of its breach. As Cory J observed in Wholesale Travel Group, '[I]f the false advertiser, the corporate polluter and manufacturer of noxious goods are to be effectively controlled, it is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. In the regulatory context there is nothing unfair about imposing that onus; indeed it is essential for the protection of our vulnerable society.' There is no logical reason to distinguish employers and others charged with the responsibility for ensuring occupational health and safety in circumstances where workers may be killed or maimed for life.
247 Section 26 presumes the defendant is guilty of the same contravention as that committed by the corporation. Of course, before the presumption operates, the corporation must have been found guilty of the contravention. That is to say, the prosecution must firstly prove the corporation guilty beyond reasonable doubt. The presumption is rebuttable. It does not deem the contravention of the director or person concerned in the management to be proved. Furthermore:
(i) there is a 'lengthy history' of Commonwealth laws creating criminal offences which reverse the traditional onus of proof: Nicholas at [152];
(ii) section 26 does not usurp or infringe on the judicial function. The court is not acting as an instrument of the legislature; it is entirely a matter for the court to determine the facts and to determine guilt or otherwise; and
(iii) section 26 does not require the court to act other than impartially not does it impact on the court's independence. The section does not direct the court as to the manner in which it must decide the case;
(iv) importantly s 26 contains essentially evidentiary provisions and it does not determine whether a charge of an offence against the Act will succeed or fail. The section does not deal with the ultimate issues of guilt or innocence;
(v) in applying s 26, the Court undertakes a genuine adjudicative process.
248 We respectfully agree with Doyle CJ in R v Granger where he stated at [53]:
But, in view of the practices of Australian Parliaments, and the procedures of Australian courts, it is going too far to say that the trial ceases to be fair for relevant purposes, or to be conducted in accordance with accepted principles of the judicial process, if the prosecution is able to call in aid a rebuttable presumption that will establish a significant element or elements of an offence, unless the accused person displaces that presumption on the balance of probabilities.
249 Mr Thangaraj sought to distinguish R v Granger. He submitted:
The Crown relies on the case of Granger and pointed out special leave was refused. Granger was a case of deemed supply. Deemed supply is very different and incomparable to the current charge - s8, s26. In a deemed supply charge the Crown has to proved beyond reasonable doubt that the defendant knew that he was possessing illegal drugs. All of the deemed supply provisions say if it's over a particular quantity it's deemed to be for the purpose of supply and therefore you are exposed to a more serious penalty. Deemed supply is not a case where the Crown does not have to prove anything in relation to an offender.
250 We understand the point counsel was seeking to make, was that in R v Granger the prosecution was still required to prove mens rea beyond reasonable doubt, that is, the Crown had to prove the person knowingly had in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance. The onus was on the defendant to then prove he or she did not have the drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person. It was submitted this was not the case in respect of s 26.
251 As we have sought to explain, there are, as Cory J identified in Wholesale Travel Group, 'persuasive and compelling' reasons why in a regulatory context, which is what we are concerned with in this case, the Crown cannot be required to prove mens rea or, for that matter, actus reus. The Crown is, however, required under s 26 to prove beyond reasonable doubt that the corporation contravened the relevant provision before any presumption operates against a director or person concerned in the management of the corporation. The section, read as a whole, makes it apparent that regardless of the status of the corporation or any proceedings against it, in any prosecution under s 26 against a director of the corporation or person concerned in the management of the corporation, the onus falls on the prosecution to prove the contravention: T & M Industries.
252 Mr Chevalley also sought to distinguish Hookham. It was submitted:
[A]ll the defendant has to establish [under s 8Y of the Taxation Administration Act] is that he was not involved in… the actual contravention, not a failure to establish a system from which the contravention emanated. So it's far far narrower and it's far more reasonable in 8Y because the defendant can simply prove he wasn't involved in that contravention.
253 It seems to us the distinction is merely a question of form and not substance. Under the provision in Hookham (s 8Y) the onus was on the defendant to prove (a) he or she did not aid, abet, counsel or procure the act or omission of the corporation concerned; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission of the corporation. Under s 26(1)(a) and (b) a defendant is required to prove he or she was not in a position to influence the conduct of the corporation in relation to its contravention, or he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.
254 In both cases it is reasonable to assume the legislature reversed the onus because in the circumstances of these two regulatory offences the defendants' 'knowledge of the true facts [would be] necessarily greater than that of anyone else'.