2. By complaint made 6 December 1990 the respondent inter alia alleged that the applicant had committed the offence of trespass, the particulars of which were expressed as being that the applicant "on the 17th November, 1990, at 53 George Street, Hobart in Tasmania, (entered) on the land of another person, being a dwelling house, the property of Martin CARNES, without the consent of the owner or occupier of the land or the person in charge thereof."

3. Upon appearing in the Court of Petty Sessions, the applicant pleaded not guilty to that charge and to the other offence charged by the complaint, which was a breach of s.37(1) of the Police Offences Act. In due course the complaint was heard by a magistrate who reserved his decision and then on 9 August 1991 convicted the applicant of both offences. The conviction imposed for the breach of s.37(1) is not the subject of the notice to review.

4. Mr. Carnes gave evidence before the learned magistrate to the following effect. Mr. Carnes was in bed at his house at 53 George Street, North Hobart on 17 November 1990. At about 3.00am he was woken by the sound of loud banging at the back door of the house. Mr. Carnes rose, went to the back door, opened it and found the applicant there. The applicant asked to be allowed in. Mr. Carnes asked him to leave, but the applicant persisted with his request to enter the house. Having physically prevented the applicant from entering the house, Mr. Carnes managed to manoeuvre him to a side gate, unlock the padlock securing that gate and have the applicant leave through that gate. Mr. Carnes then called the police. Shortly thereafter the applicant kicked the lock off the gate and again went to Mr. Carnes' house. Apparently the back door was then either open or opened by Mr. Carnes. The applicant did not comply with Mr. Carnes' request that he leave the property. Instead he entered the house and sat down in a lounge chair. Mr. Carnes was in the process of attempting to remove the applicant from the house when police officers arrived and took the applicant into custody. It appears that the learned magistrate accepted Mr. Carnes' evidence. Whilst it does not appear that the learned magistrate was so informed, it appears that the case proceeded upon the basis that it was the applicant's entry of the house shortly before the police arrived which was the subject of the complaint.

5. There was evidence from Mr. Carnes, the applicant and others that at all relevant times the applicant was quite intoxicated. The applicant's state of intoxication was self-induced. It appears that the applicant and Mr. Carnes were strangers to one another. There was no apparent reason for the applicant wishing to enter Mr. Carnes' house unless the applicant believed it to be his sister's house which was nearby.

6. Counsel for the applicant submitted to the learned magistrate as follows:

1. That it was for the complainant to establish beyond

reasonable doubt that the applicant intended to be upon Mr.

Carnes' land without the consent of the owner or occupier.

2. That the applicant's intoxicated state was relevant to

the issue of the applicant's intent upon the principles of

the common law enunciated in The Queen v. O'Connor

[1980] HCA 17; (1979-1980) 146 CLR 64.

3. That the common law applied because s.17 of the Criminal

Code dealing with intoxication does not apply to the offence

constituted by s.14B of the Police Offences Act.

4. That by reason of his intoxication, the applicant may

well have believed that he was at a house other than Mr.

Carnes', namely his sister's house. Although counsel did

not develop his argument as to the relevance of the

possibiloity of such a belief, I assume that he intended to

submit that as such a possibility had been raised by the

evidence it was for the complainant to exclude the existence

of such a belief beyond reasonable doubt, the applicant's

state of intoxication being relevant to a consideration of

that question.

7. The grounds upon which the review is sought are as follows:

"1. The Learned Magistrate erred in law in holding that the

defence of self-induced intoxication was not available as a

defence to a charge of Trespass.

2. The Learned Magistrate erred in fact in failing to find

that the Applicant was intoxicated to such an extent that he

was incapable of forming the necessary intent to commit the

offence of Trespass."

8. The first ground challenges the conclusion of the learned magistrate that "the defence of voluntary (sic) induced intoxication provides no defence to any crime or offence in Tasmania unless it is intoxication to the degree ... set out in Section 17 of the Code." What the learned magistrate said did not precisely deal with the submissions made by counsel for the applicant but it is plain that his Worship rejected the submission made to him, and repeated before this Court, that summary offences constituted by an act or omission which does not constitute a crime (of which a breach of s.14B of the Police Offences Act is an example) are unaffected by the principles of criminal responsibility provided for in the Criminal Code. That submission of the applicant is basic to ground 1. Before dealing with that submission, it is appropriate to set forth a number of relevant statutory provisions and to deal with the history of some of those provisions.

9. When enacted, the Criminal Code Act 1924 contained s.4 in the following terms:

"4 - (1) After the passing of this Act every statute shall,

for the purposes of this Act, be read and construed as if

any offence therein mentioned for which the offender may be

prosecuted on indictment or information (however such

offence may be therein described or referred to) were

described or referred to as a crime as defined by the Code;

and all provisions of this Act relating to crimes generally

shall apply to every such offence.

(2) Where in any statute reference is made to proceedings

upon information in the Supreme Court, the same shall be

construed as a reference to proceedings upon indictment.

(3) Nothing herein contained shall be construed to affect

the construction of any statute, or of any provision

thereof, referring or relating to summary proceedings."

10. That section has only once been amended since its enactment. That amendment was effected by s.2 of the Criminal Code Act 1963. That section was in the following terms:

"2 - (1) Section four of the Principal Act is amended by

omitting subsection (3) and substituting therefor the

following subsection:-

'(3) as provided in section thirty-six of the Acts

Interpretation Act 1931, nothing contained in this Act or

in the Code shall be construed to affect the construction

of any statute, or of any provision thereof, creating an

offence punishable summarily or referring or relating to

summary proceedings.'.

(2) This section shall be deemed to have commenced on the

eighteenth day of January 1932."

11. When enacted, the Criminal Code contained the following provisions which have not been amended:

"1. Construction of terms.-In the Code, unless the contrary

intention appears-

...

'criminally responsible' means liable to punishment as for

an offence; and the term 'criminal responsibility' means

liability to punishment as for an offence;

...

'offence' means any breach of the law for which a person may

be punished summarily or otherwise:"

12. The Acts Interpretation Act 1931 commenced on 18 January 1932. That date is significant having regard to the provisions of s.2(2) of the Criminal Code Act 1963. Section 36 of the Acts Interpretation Act (which has not been amended since its enactment) is in the following terms:

"36 - (1) Where an act or omission constitutes a crime under

the provisions of any Act and the like act or omission

constitutes an offence punishable summarily under the

provisions of some other Act, the principles of criminal

responsibility applicable in relation to such crime shall be

applied in relation to such offence, and all terms and

expressions used in relation to such offence shall have the

same meaning and construction as when similarly used in

relation to such crime.

(2) In any such case as aforesaid, the provisions of the

Criminal Code, so far as the same are applicable and to the

extent hereinbefore provided, shall be applied in relation

to any such offence."

13. There had been no section equivalent to s.36 in the Interpretation Act 1906 which was repealed by the Acts Interpretation Act. When the Criminal Code Act was enacted, s.4 thereof operated unaffected by s.36 of the Acts Interpretation Act or any equivalent provision.

14. A consideration of the provisions dealing with criminal responsibility appearing in ss.12-19 of Chapter IV of the Criminal Code without regard to any other statutory provisions suggests that those provisions were intended to be of general application. The frequent use of the word "offence", which is defined in s.1, tends to confirm that view. Section 12 provides that ignorance of the law "is not an excuse for any offence". Section 13(3) deals with criminal responsibility for the unforeseen result of an act or omission done or made "with intent to commit an offence". Section 14 deals with mistakes of fact, the availability of which as a defence is "to be determined on the construction of the statute constituting the offence". Section 17(2) deals with the relevance of intoxication to the formation of a specific intent "essential to constitute the offence" charged. Section 18(1) and (2) provides for the circumstances in which an act or omission done or made by persons of immature age "is an offence". The word "offence" does not appear in ss.13(1) and (2), 16(1) and 19. All those provisions provide that in particular circumstances a person is not "criminally responsible" for his act or omission. A reference to the definition of that expression shows that it means that the person is not "liable to punishment as for an offence" for such an act or omission, so that the reference to "offence" is imported into those provisions. The remaining provisions are complimentary to those to which I have specifically referred. That leads to the conclusion that subject to the effect of any other statutory provisions, ss.12-19 were intended to relate to all offences unless Parliament otherwise provided as to any particular offence. It is appropriate to consider relevant authorities decided before the amendment to s.4 of the Criminal Code Act effected in 1963.

15. Section 4(3) of the Criminal Code Act was considered by Crisp J in Woodruff v. Nolan (1934) 29 Tas LR 127. In that case the applicant had been convicted by a police magistrate of stealing property to the value of (pounds)9.0.0 contrary to s.234 of the Criminal Code. The applicant had claimed that he was entitled to be tried by a jury, which claim was rejected by the police magistrate, who then proceeded to hear and determine the complaint summarily. The matter which fell for determination was whether the mode of trial was determined by s.3 of the Petty Offences Act 1867 (in which event the applicant had no option but to be tried summarily) or by s.5 of the Criminal Code Act (in which event the applicant was entitled to be tried by jury if he so demanded). Some of the provisions of the Petty Offences Act now appear strange. Section 3 operated so that as to certain offences the person charged was not entitled to demand a trial by jury if he had been convicted of an offence of the type therein specified during the preceding period of two years, although he was entitled to so demand if he had not previously been so convicted during that period of two years. By determining the mode of trial by reference to a defendant's previous record, it was implicit from s.3 that a police magistrate was to be informed of relevant prior convictions prior to embarking upon a hearing of the complaint. The Petty Offences Act was not expressly repealed by the Criminal Code Act, although it was later repealed by the Police Offences Act 1935. In considering the applicant's submissions, Crisp J posed the relevant question, at p 129, as being "Has the Code indirectly repealed (the Petty Offences) Act?". With the greatest of respect, I do not consider that to have been a question which required determination. His Honour proceeded upon the basis that if that question was answered in the affirmative the applicant could invoke s.5 of the Criminal Code Act. Yet that could not have been so because in that event the Petty Offences Act would not have answered to the description of being "any unrepealed statute" in the terms of s.5.

16. Notwithstanding what I consider to be the inappropriateness of the question which was posed, there remained the question as to whether s.4(3) of the Criminal Code Act should be construed as limiting the effect of s.5. Parliament provided for such a limitation when s.5(5) was added by the Criminal Code 1934 shortly after Woodruff v. Nolan (supra) was decided. Crisp J dealt with s.4(3) quite briefly. At p 130, after setting forth that subsection, he concluded his judgment by making the following observations:

"So, in the forefront of the Code there is, in effect, a

declaration that summary proceedings taken according to

statute are not to be affected by the Code, for one cannot

deal with a statutory offence without first construing the

statute. Its construction may be simple and beyond doubt,

but you must construe it before acting on it. The

sub-section, I think, says substantially this: 'Hands off

summary proceedings under statute.'

When we read the very next Section (S. 5) how can we say

that, notwithstanding Section 4, it repeals a statute the

construction of which the Code itself declares it does not

touch?

What I believe Sec. 5 of the Code to mean is that it does

not abstract from the existing jurisdiction of Justices:

rather, it aims at minor offences not otherwise provided

for.

In short, here is 'The Petty Offences Act' dealing with nine

specific offences only. Then the Code is passed and it

leaves this Act alive, though repealing many others. And

the language of Sec. 5 is capable of an interpretation which

does not touch the former Act."

17. Whilst I consider that his Honour incorrectly stated the question for determination, that does not appear to have affected his Honour's construction of s.4(3). Nevertheless Woodruff v. Nolan (supra) was concerned with statutory provisions dealing with a procedural matter, namely the mode of trial, and ought not to be taken as authority for any wider proposition that s.4(3) of the Criminal Code Act in its then form provided that the procedure for dealing with offences triable summarily was so unaffected. I would respectfully agree with what Crawford J said in Hesselman v. Reid (No.2) (1974) Tas SR 1 at p 7, namely that Woodruff v. Nolan "is an authority only as to a procedural matter where there was a conflict between s. 5 of the Criminal Code Act and s. 3 of the Petty Offences Act." The expression "statute ... referring or relating to summary proceedings" suggests a reference to procedural statutes. The expression did not purport to deal with statutes referring or relating to summary offences.

18. The Acts Interpretation Act 1931 was enacted before Woodruff v. Nolan (supra) was decided but the reasoning in that case did not in any way rely upon s.36 of that Act. Section 36 in part proceeds upon an assumption that the principles of criminal responsibility contained in the Criminal Code had no application to offences punishable summarily prior to the enactment of the Acts Interpretation Act. For the reasons I have expressed, and also expressed in the cases to which I am about to refer, that was an erroneous assumption. The first substantive provision of s.36(1) was otiose at the time that it was enacted in that upon a proper construction of the Criminal Code Act and the Code as in force at the time of the enactment of the Acts Interpretation Act the principles of criminal responsibility to be found in ss.12-19 of Chapter IV of the Code already applied, not only to summary offences of the type referred to in s.36(1), but to all summary offences, unless, upon a proper construction of statutory provisions creating or relating to particular summary offences, any one or more of those principles were modified or negated, e.g. where there was disclosed a statutory intent to create an offence of strict liability.

19. The same view was expressed by Crisp J in Reg. v. Vallance (1960) Tas SR 51. Although his Honour was not there concerned with any summary offence and therefore insofar as his observations related to summary offences, they were obiter, what that very learned judge said is very persuasive. At p 81, his Honour said:

"One of the several matters therein dealt with is the

general topic of criminal liability considered in relation

not to any one crime or group of crimes, but to criminal

offences in general. For the Code is no mere collection or

catalogue of crimes. i.e., offences punishable on

indictment, or is it even restricted to crimes strictu sensu

in the application of many of the general principles that it

enunciates. The chapter with which we are concerned - Ch.

IV of Part I - relates not to specific crimes at all but to

general matters of criminal responsibility, and in this

regard the definition of 'criminally responsible' in s.1 of

the Code should be particularly noted. It means, 'liable to

punishment as for an offence,' and the term, 'criminal

responsibility' means 'liability to punishment as for an

offence.' The emphasis is mine. And 'offence' is defined

by the same section as 'any breach of the law for which a

person may be punished summarily or otherwise.' So that

when we turn to Ch. IV, which is headed 'Criminal

Responsibility' and s. 13 (the second section of the same

chapter) which says no person shall be criminally

responsible for an act unless it is voluntary etc., there

can be little doubt but that the draftsman here intended to

deal with the subject of criminal responsibility in its

widest possible application, i.e. both in relation to

indictable crimes which are the particular subject of the

Code and to summary offences, which are not. (Cf. s. 36 of

the Queensland Criminal Code, which is to the same effect)."

20. Whilst his Honour primarily directed his mind to s.13 it is clear that he was speaking of the whole of Chapter IV as applying to offences generally. That his Honour was not restricting his observations to s.13 is confirmed by his conclusions expressed at p 86:

"In all these circumstances I am unable to doubt but that

the Tasmanian Criminal Code (influenced in this regard by

the Queensland model) 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. As to mens rea, it goes even further in its

application to summary offences, as I have already pointed

out."

21. Although again obiter, that conclusion was expressly approved by Burbury CJ and Cox J in their joint judgment in Snow v. The Queen (1962) Tas SR 271, at p 278. In Young v. Bryan (1962) Tas SR 323 Burbury CJ followed the dicta in Reg. v. Vallance (supra) and Snow v. The Queen (supra) to which I have referred and expressly held that ss.12-17 (inclusive) of the Criminal Code applied to summary offence so that s.13 of the Criminal Code applied to the offence created by s.6 of the Police Offences Act 1935 so as to require the prosecution to prove that the defendant intended to associate with reputed thieves.

22. A different view was taken by Crawford J in Vallance v. The Queen (supra). At p 125 his Honour observed that if Chapter IV of the Criminal Code applied to summary offences, it was unnecessary for Parliament to pass s.36 of the Acts Interpretation Act. I do not entirely agree with that observation. Even if it was unnecessary to import principles of criminal responsibility into certain summary offences, s.36 still effected an alteration in the law in that it provided for a particular meaning and construction for certain terms and expressions not previously provided for. Nevertheless the proper construction of an Act cannot be affected by an erroneous understanding by Parliament as to its effect. Crawford J's conclusion that Chapter IV of the Criminal Code did not apply to summary offences, except as provided for by s.36 of the Acts Interpretation Act, appears to have proceeded upon the basis that if prior to the enactment of s.36, Chapter IV was of general application, s.36 operated so as to impliedly limit that effect to the circumstances referred to in s.36. His Honour expressed those views, at p 127, in the following terms:

"One matter at least seems clear, - s. 36 of the Acts

Interpretation Act 1931 was not designed to remove possible

doubts as to whether summary offences were within any of Ch.

IV of the Code, because the section would not have been

restricted to offences which are also crimes. Both Acts are

statutes on the same subject, criminal responsibility. In

the circumstances of Grain Elevators Board (Vict.) v.

Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70, at p 86, Dixon J

(as he then was) said: 'Although the provision was passed

too late to apply to the present case, I think that it may

be considered on the question of interpretation. It would

be a strange result if we were to interpret the prior

legislation as giving a wider exemption than that conferred

by the provision so that the express exemption it makes

would prove unnecessary and the qualifications it places

upon that exemption would be futile.'

That is what the position is here. If we are to interpret

s. 13 of the Code as applying to all offences we are giving

a wider exemption from criminal responsibility than that

conferred by s. 36 of the Acts Interpretation Act 1931 so

that the express exemption it makes (in effect) would prove

unnecessary. Latham CJ [1946] HCA 13; (1946) 73 CLR 70, at p 77 referred

to 'the limited character of the exemption from rates

created by the Grain Elevators Act 1942' (a later Act) and

said that it tended 'to show the Board was not, by reason of

its constitution and function, entitled to the immunity

which it now seeks to establish.' As at present advised, I

see no objection to the proposition that if Parliament can

pass an Act expressly to remove the doubts and declare the

meaning of an earlier Act, it can pass an Act having the

same effect by necessary implication. However, in the view

which I have taken of s. 13(3) there is no need for me to

decide now whether s. 13 applies to simple offences."

23. Prior to expressing those conclusions, his Honour dealt with a number of earlier cases. (Brown v. Clark (1935) 30 Tas LR 3; Dowling v. Higgins (1945) Tas SR 32; Peterson v. Curran (1950) Tas SR 9; Boxhall v. Cook (1952) Tas SR 15; Tremayne v. Cook (1955) Tas SR 100; Cosgrove v. T. M. Lipscombe and Co. (1956) Tas SR 7; O'Rourke v. Boxhall (1958) Tas SR 8; Reg. v. Cripps (1958) Tas SR 24; and Reg. v. Lucas (1958) Tas SR 97). However, none of those cases squarely dealt with the issue of the applicability of Chapter IV of the Criminal Code to summary offences generally. It may be said that in some of those cases the question was appropriate for determination, but that assumptions were made that Chapter IV did or did not apply.

24. I find the reasoning of Crisp J in Vallance's case persuasive, albeit that it was reasoning which did not expressly have regard to the provisions of s.36 of the Acts Interpretation Act. I do not understand the reasons expressed by Crawford J as leading to any different conclusion, except that his Honour construed the effect of s.36 as being to modify the provisions of the Criminal Code Act and the Code so that thenceforth the applicability of Chapter IV would be limited to those summary offences which came within the meaning of s.36(1). With respect I do not consider that s.36 can be so construed.

25. I next deal with the amendment of s.4(3) of the Criminal Code Act effected by s.2 of the Criminal Code Act 1963. The substituted subs.(3) effected the following alterations:

1. Subsection (3) was made subject to s.36 of the Acts

Interpretation Act.

2. The word "herein" formerly appearing in subs.(3) was

replaced by the words "in this Act or in the Code".

3. No longer was the subsection expressed to merely relate

to statutes relating to summary proceedings. It also

expressed to relate to statutes creating an offence

punishable summarily.

26. The effect of the new s.4(3) does not appear to have received any judicial consideration. In Onn v. Dakin No.112/1965, at p 3, Crawford J said that the amendment might have had "the effect of no longer requiring a consideration of the provisions of the Criminal Code relating to criminal responsibility" in dealing with an offence under s.6 of the Police Offences Act, but found it unnecessary to decide the question. In Kringle v. Lowe No.46/1986, Cox J, dealing with an application to review convictions for breaches of ss.4(1)(b), 12(1)(c) and 34B(1)(a)(i) of the Police Offences Act, said that those "charges are not subject to the principles of criminal responsibility set out in Chapter IV of the Criminal Code", but it does not appear that that question was in any way argued in that case.

27. Even without calling in aid any special rule of construction, I consider it to be reasonably clear that the effect of s.4(3) in its present form is to limit the applicability of the principles of criminal responsibility contained in Chapter IV of the Criminal Code insofar as summary offences are concerned to those summary offences answering to the description contained in s.36(1) of the Acts Interpretation Act. I have come to that conclusion for the following reasons:

1. Section 4(3) is expressed to be subject to s.36(1). That

is indicative of Parliament having proceeded upon the basis

that by s.36(1) it has made certain provisions which relate

to certain offences punishable summarily which override

general provisions to contrary effect contained in s.4(3).

2. Parliament extended the operation of s.4(3) as applying

not only to statutes "referring or relating to summary

proceedings", but also to statutes "creating an offence

punishable summarily." As a provision dealing with

criminal responsibility affects the construction of a

statute creating an offence, the operation of ss.12-19 of

the Code has been excluded from summary offences unless they

come within s.36(1) of the Acts Interpretation Act.

28. The second of those propositions requires some further consideration. A wide meaning should be given to the word "construction". It is an expression which "embraces not only the interpretation of the words used but also the ascertainment of the true intent of the statute, considered in relation to the branch of the law with which it is dealing." (per Devlin LJ in Berry v. British Transport Commission (1962) 1 QB 306, at p 326). Similarly, the word "affect" is a word of wide import. It means "touch, relate to, concern or have effect upon" (per Neasey J in Reid v. Hesselman (1975) Tas SR 95, at p 102). Where one statute creates a summary offence and defines the ingredients thereof and another statute deals with criminal responsibility in general terms applying to such an offence, the latter statute touches, relates to, concerns and has effect upon the former statute. A consideration of whether a person is criminally responsible for an act or omission which by a statute is declared to constitute an offence is part of the construction of such a provision. It forms part of the process of ascertaining the true intent of such a provision.

29. Even if it could be said that the effect of s.4(3) was uncertain, an application of the mischief rule of construction would lead to the same conclusion. By the amendment of s.4 of the Criminal Code Act Parliament intended to reverse the situation whereby ss.12-19 of the Code applied generally to summary offences regardless of whether those offences were the subject of s.36(1) of the Acts Interpretation Act. It ought not to be regarded as coincidental that the amendment to s.4(3) of the Criminal Code Act was effected not long after Reg. v. Vallance (supra), Snow v. The Queen (supra) and Young v. Bryan (supra) were decided. As a result of those cases, it could be said that the law had been held to be that the principles of criminal responsibility contained in Chapter IV of the Criminal Code had general application to summary offences. The fact that the amendment of s.4 of the Criminal Code Act was expressed to operate from the date upon which the Acts Interpretation Act commenced and the fact that s.4(3) was made subject to s.36 of the Acts Interpretation Act are indicative of a legislative intent that the two provisions were intended to have complimentary operation. At the time that the Criminal Code Act 1963 was enacted, Parliament is to be taken as having known that the law had been declared as being that the provisions as to criminal responsibility appearing in Part IV of the Criminal Code applied to summary offences generally. If there is any doubt about the proper construction of s.4(3) of the Criminal Code Act in its amended form, then it is appropriate to seek to identify the mischief sought to be remedied by the 1963 Act as perceived by the Parliament. In the words of Lord Simon of Glaisdale in Associated Newspapers Group Ltd. v. Fleming (Inspector of Taxes) (1973) AC 628 at p 646:

"... it is very much part of the duty of the courts, in

their task of statutory interpretation, to ascertain as best

they can what was the mischief as conceived by Parliament

for which a statutory remedy was being provided; nor is it

necessary nowadays for courts to effect ignorance of what is

notorious."

30. It so recently having been declared to be the law that the principles of criminal responsibility contained in Chapter IV of the Criminal Code applied to summary offences generally, I am led to the conclusion that the mischief which Parliament was intending to remedy was the legal requirement to apply those principles to all summary offences. Whether such a rule might be considered by others to be of mischievous effect is beside the point. Parliament perceived it as being a rule which required modification by statute. It enacted s.3 of the Criminal Code Act 1963 for that purpose. The plain effect of that section is, or if contrary to my view it is ambiguous, is to be taken by application of the mischief rule to be, that retrospectively to the date referred to in s.2(2) of that Act those principles are to be taken as applying to summary offences only if they are of the type referred to in s.36(1) of the Acts Interpretation Act.

31. The respondent relied upon s.3(3) of the Police Offences Act in support of his argument that the Code principles of criminal liability apply to offences created by that Act. That subsection is in the following terms:

"(3) The definitions set forth in the Criminal Code, so far

as the same are applicable and except where inconsistent

with this Act, shall be applied in the construction of this

Act."

32. I do not consider that that provision is of any assistance to the respondent. It is only the definitions contained in the Criminal Code which are to be applied in the construction of the Police Offences Act. That means that if a word or expression which is defined in the Criminal Code is used in the Police Offences Act, then, unless inconsistent with the Police Offences Act, that word or expression is to be construed in accordance with the definition contained in the Criminal Code. For example, s.37 of the Police Offences Act deals with various offences relating to "property". That word is not defined in that Act so that s.3(3) would import the relevant definition contained in s.1 of the Criminal Code. Section 3(3) has no further operation. Whilst s.1 of the Criminal Code defines the expressions "criminally responsible" and "criminal responsibility", those expressions do not appear in the Police Offences Act so no occasion arises to apply the definitions contained in the Criminal Code.

33. It was correctly conceded that the offence created by s.14B of the Police Offences Act is not one which is the subject of s.36(1) of the Acts Interpretation Act. Accordingly, it follows from the reasons which I have expressed that s.17 of the Criminal Code had no application to the offence allegedly committed by the applicant in breach of that section. It follows that the applicant's criminal responsibility fell to be determined by reference to the common law. The learned magistrate fell into error when he held that to the contrary. However, it is necessary to consider the relevance of self induced intoxication to the offence created by s.14B at common law. Counsel for the applicant submitted that the offence of trespass created by that section has two mental elements, namely that the entry was voluntary and intentional and that the applicant knew or was aware that he had entered the land of another. As to the first of those, the respondent (in my view, correctly) conceded that it was incumbent upon the prosecution to establish that the act of entry was voluntary and intentional (Ryan v. R. [1967] HCA 2; (1967) Argus LR 577). The fact that the land entered is the land of another is a purely external element. The question is whether Parliament intended that proof of knowledge that the land entered was the land of another be a prerequisite before guilt can be said to have been established.

34. In He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523, the High Court reaffirmed the general principle of the common law governing criminal responsibility expressed in Sherras v. De Rutzen (1895) 1 QB 918, at p 921, in the following terms:

"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."

35. The principles were expressed by Brennan J at p 582 in terms not inconsistent with any of the reasons expressed by any other members of the court forming part of the majority. His Honour expressed those principles as follows:

"1. There is a presumption that in every statutory offence,

it is implied as an element of the offence that the person

who commits the actus reus does the physical act defined in

the offence voluntarily and with the intention of doing an

act of the defined kind.

2. There is a further presumption in relation to the

external elements of a statutory offence that are

circumstances attendant on the doing of the physical act

involved. It is implied as an element of the offence that,

at the time when the person who commits the actus reus does

the physical act involved, he either - (a) knows the

circumstances which make the doing of that act an offence;

or (b) does not believe honestly and on reasonable grounds

that the circumstances which are attendant on the doing of

that act are such as to make the doing of that act innocent.

3. The state of mind to be implied under (2) is the state of

mind which is more consonant with the fulfilment of the

purpose of the statute. Prima facie, knowledge is that

state of mind.

4. The prosecution bears the onus of proving the elements

referred to in (1) and (2) beyond reasonable doubt except in

the case of insanity and except where statute otherwise

provides."

36. All the members of the court proceeded upon the basis that the state of mind required to be proved will vary upon the nature of the offence charged, but the majority of the members of the court referred with approval to the dictum of Jordan CJ in R. v. Turnbull (1943) 44 SR(NSW) 108, at p 109, in the following terms:

"... assuming his mind to be sufficiently normal for him to

be capable of criminal responsibility, it is also necessary

at common law for the prosecution to prove that he knew that

he was doing the criminal act which is charged against him,

that is, that he knew that all the facts constituting the

ingredients necessary to make the act criminal were involved

in what he was doing."

37. In determining whether the presumption has been displaced regard must be had to a number of matters including the words of the statute creating the offence, the subject matter of the statute and whether the imposition of strict liability assists in the enforcement of the statute (per Gibbs CJ in He Kaw Teh (supra) at pp 529-530).

38. In Gibbon v. Fitzmaurice [1986] TASSC 55; (1986) Tas R 137 the Full Court was required to consider whether the presumption that guilty knowledge is to be proved had been displaced by reg.4(1) of the National Parks and Reserves Regulations 1971 which provided that except with the permission of the managing authority, no person being the owner or immediate keeper of any dog or horse shall provide the same to be in or remain on any reserved land within the meaning of the National Parks and Wildlife Act 1970. The respondent had been charged with a breach of that regulation. When the matter came before a magistrate, he dismissed the complaint upon the basis that it was incumbent upon the complainant to establish that the respondent knew that the land concerned was such reserved land. The Full Court concluded that the language and subject matter of the regulation displaced the presumption of mens rea at least to the extent of not requiring proof of knowledge that the land was reserved land. In considering whether or not the effect of the regulation was to exclude mens rea at least to that extent, Underwood J expressed himself, at p 158, in the following terms:

"1. The prohibited acts 'are not criminal in any real sense

but acts which in the public interest are prohibited under a

penalty': see Sherras v. De Rutzen (1895) 1 QB 918, at

p 922.

2. It is now widely recognised that reserved lands

constitute a valuable and irreplaceable community asset

which enhances the quality of life. The ecology of these

areas is often fragile and the preservation of native fauna

and flora can truly be said to be a matter of social

concern, not only for the present generation but for those

which follow.

3. In general terms keepers and owners of animals are

expected to ensure their animals do not stray or trespass.

It is likely that Parliament intended to cast an obligation

upon those who permitted their animals to be in or remain on

land not in private ownership to make enquiry to ascertain

the status of that land and any statutory restrictions on

its use.

4. The maximum penalty for an infringement of the

regulations is $2,000. Whilst not a trifling amount it

cannot be said to be a heavy penalty.

5. In the absence of an admission, knowledge that the land

was reserved land would be difficult to prove and the

creation of such difficulty is inconsistent with the social

purpose of the legislation.

6. The provisions of the National Parks and Wildlife Act

1970 provide in effect, that land becomes reserved land upon

a proclamation made by the governor. Thus the existence and

boundaries of reserved land are capable of being ascertained

by any member of the public.

I reach the conclusion that upon a proper construction of

reg.4 knowledge that the land is reserved land is not an

element in the offence. Such construction is consistent

with the social purpose of the legislation and in accordance

with the ordinary and natural meaning of the words used."

39. Both counsel were agreed that the principles applied and the considerations had regard to by Underwood J are appropriate in considering whether knowledge on the part of the applicant that he was entering the land of another was required to be established. I agree.

40. I consider that the act prohibited by s.14B, at least insofar as it relates to a dwelling house, is criminal in a very real sense. The unauthorised intrusion of a trespasser into the dwelling house of another would generally be considered to be a criminal act. By providing for the possibility of a sentence of imprisonment of up to twelve months, the legislature has taken a similar view. I reject the submission made by the respondent that a prosecution under s.14B based upon the entry of a dwelling house is merely criminal in form and amounts to no more than a summary mode of enforcing a civil right. Section 14B insofar as it relates to dwelling houses is not dealing with a matter of social concern such as the protection of an endangered environment. None of the other relevant considerations tend to persuade me that it is not an ingredient of the offence that the relevant knowledge be established. The use of the expression "enter or remain" obviates many of the difficulties suggested in the submissions made for the respondent. It may well be that in many cases where the requisite knowledge may not be capable of being established insofar as an entry is concerned, it will be capable of being established insofar as remaining is concerned when an offender remains upon land after his mind has been properly informed as to the ownership of the land.

41. Even in Gibbon v. Fitzmaurice (supra) the court did not suggest that if there had been evidence that the respondents might have held a mistaken belief honestly and on reasonable grounds that the land was not reserved land that the requirement that the prosecution exclude the existence of such a belief was to be taken as having been abrogated by the terms of the regulation. If that issue could be said to have been raised on the evidence in the present case (and I think that it was) then it was incumbent upon the prosecution to exclude the existence of such a belief beyond reasonable doubt. There was some material before the learned magistrate which might have suggested the existence of such a belief, but as the matter was not debated before the court, I express no final view on the matter beyond saying that if on a reconsideration of the matter it appears that this defence was raised, it will need to be dealt with and the question of the applicant's intoxication will be relevant to that issue.

42. It follows from what I have said that the learned magistrate was in error when he determined that the case was governed by s.17 of the Criminal Code and that the learned magistrate has not relevantly considered the evidence of the applicant's intoxication. The applicant's conviction cannot stand.

43. I do not see that there is any occasion to consider the second ground upon which the review is sought. Certainly, as is asserted by that ground, the learned magistrate did not find that the applicant was intoxicated to the extent therein referred to. However, the learned magistrate proceeded upon the basis that because of the provisions of s.17, intoxication was only relevant to the question of specific intent (except for s.17(1) which it is not suggested had any application) and that because no specific intent formed part of the ingredients necessary to establish the commission of an offence under s.14B of the Police Offences Act, intoxication was entirely irrelevant. The failure to make any requisite finding was made in the light of the learned magistrate's conclusions as to the applicable law. If, as is my opinion, that conclusion was erroneous, it requires findings of fact to be made before the complaint can further be dealt with. It is inappropriate and unnecessary for this Court to reach any view as to what was or might have been established by the evidence.

44. The Motion to Review should be allowed and the conviction quashed.

COX J The appellant was convicted in the Court of Petty Sessions of one count of unlawfully injuring property contrary to s.37(1) of the Police Offences Act 1935, and one count of trespass contrary to s.14B(1) of the same Act. The evidence adduced at the trial showed that while in an advanced state of intoxication he had entered upon the land of the complainant at about 3.00am and had hammered on the back door. The property in question was situate in a street in North Hobart almost opposite the house occupied by the appellant's sister and in which he was temporarily staying. The complainant opened the door and the appellant sought admission. He was asked to leave and taken out a side gate which was locked after him. The complainant then rang the police. Before they came, the appellant had kicked the lock off the gate, thereby damaging it, re-entered the yard and again entered the house where he "flopped" on a couch and refused to leave. When the police arrived he was again asked to leave the premises, again refused, and was arrested for trespass. The parties were total strangers, and there was no apparent reason why the appellant should wish to enter the complainant's house.

2. The learned magistrate, addressing the question whether self-induced intoxication provided a defence to either charge, held that it provided no defence to any crime or offence in Tasmania unless it was intoxication to the degree discussed in Palmer v. The Queen [1985] TASSC 53; (1985) Tas R 138 and set out in the Criminal Code, s.17. He then proceeded to conviction. The appellant, by his Notice to Review, seeks a review of the conviction for trespass contending that in respect of such an offence, it not being one with a Code equivalent, the common law defence of intoxication as expounded in The Queen v. O'Connor [1980] HCA 17; (1980) 146 CLR 64 should have been considered by the learned magistrate. He concedes that by virtue of s.36 of the Acts Interpretation Act 1931 in respect of the charge of unlawfully injuring property, the provisions of s.17 of the Code apply so as to deny him any defence based on intoxication. When the Notice to Review came before me I directed that it be heard by the Full Court as it raised questions of considerable importance as to the extent to which the principles of criminal responsibility and a number of matters relating to defences and matters of justification all contained in Ch. IV of the Code were applicable to summary offences.

3. When first enacted in 1924 and until its amendment in 1963, the Criminal Code Act, s.4, provided as follows:

"4.- (1) After the passing of this Act every statute shall,

for the purposes of this Act, be read and construed as if

any offence therein mentioned for which the offender may be

prosecuted on indictment or information (however such

offence may be therein described or referred to) were

described or referred to as a crime as defined by the Code;

and all provisions of this Act relating to crimes generally

shall apply to every such offence.

(2) Where in any statute reference is made to proceedings

upon information in the Supreme Court, the same shall be

construed as a reference to proceedings upon indictment.

(3) Nothing herein contained shall be construed to affect

the construction of any statute, or of any provision

thereof, referring or relating to summary proceedings."

4. In Woodruff v. Nolan (1934) Tas LR 127, Crisp J (as he then was) was concerned with the question whether the Code, by s.5 of the principal Act, had indirectly repealed an earlier procedural Act, the Petty Offences Act, which required trial by magistrate without the option of a jury trial of certain crimes of dishonesty where the offender had previously been convicted of similar crimes. Ruling that it did not, he said, at pp 129-130:

"Now the first thing one notices here is that the Criminal

Code does not purport to deal with every branch of the law

creating offences. By Sec. 2 it provides that, after the

passing of the Act, the provisions contained in the first

schedule should be the law of the State 'with respect to the

several matters therein dealt with.' Then, Section 3 refers

to the second schedule, which contains a list of Acts

repealed, and, although that schedule embraces a large

number of penal statutes theretofore existing, it yet does

not repeal, in terms, 'The Petty Offences Act.'

The question is: Has the code indirectly repealed this Act?

In Seward v. 'Vera Cruz,' 10 AC 59, Lord Selbourne said:-

'Now if anything be certain it is this, that where there are

general words in a later Act capable of reasonable and

sensible application without extending them to subjects

specially dealt with by earlier legislation, you are not to

hold that earlier and special legislation indirectly

repealed or altered merely by force of such general words,

without any indication of a particular intention to do so.'

It seems to me that this argument might be put with even

greater force in such a case as this now under appeal, where

the Code, though killing many penal statutes, has allowed

this particular statute to survive.

If the appellant's contention is correct, not only has

Section 5 of the Code indirectly repealed 'The Petty

Offences Act,' but it has attenuated the jurisdiction of

Justices of the Peace to an alarming degree, and for every

petty statutory offence involving at most a short term of

imprisonment a jury might be demanded.

Surely if Parliament had intended so great a change, it

would have used language about which there could be no

doubt.

When one considers the hundred and one offences under, e.g.,

'The Police Act,' or 'The Licensing Act,' one finds it hard

to believe that such a thing was ever in the minds of the

legislators.

We have, however, to construe the Code; if its language is

plain and clear, there is no more to be said, despite the

consequences. Is it so plain and clear?

By Sec. 4 (3) 'Nothing herein contained should be construed

to affect the construction of any statute, or of any

provision thereof, referring or relating to summary

proceedings.'

So, in the forefront of the Code there is, in effect, a

declaration that summary proceedings taken according to

statute are not to be affected by the Code, for one cannot

deal with a statutory offence without first construing the

statute. Its construction may be simple and beyond doubt,

but you must construe it before acting on it. The

sub-section, I think, says substantially this: 'Hands off

summary proceedings under statute.'

When we read the very next Section (S. 5) how can we say

that, notwithstanding Section 4, it repeals a statute the

construction of which the Code itself declares it does not

touch?

What I believe Sec. 5 of the Code to mean is that it does

not abstract from the existing jurisdiction of Justices:

rather, it aims at minor offences not otherwise provided

for.

In short, here is 'The Petty Offences Act' dealing with nine

specific offences only. Then the Code is passed and it

leaves this Act alive, though repealing many others. And

the language of Sec. 5 is capable of an interpretation which

does not touch the former Act."

5. In 1931 the Acts Interpretation Act was passed and s.36 thereof provided as follows:

"36 - (1) Where an act or omission constitutes a crime under

the provisions of any Act and the like act or omission

constitutes an offence punishable summarily under the

provisions of some other Act, the principles of criminal

responsibility applicable in relation to such crime shall be

applied in relation to such offence, and all terms and

expressions used in relation to such offence shall have the

same meaning and construction as when similarly used in

relation to such crime.

(2) In any such case as aforesaid, the provisions of the

Criminal Code, so far as the same are applicable and to the

extent hereinbefore provided, shall be applied in relation

to any such offence."

6. The Criminal Code contains a number of important definitions. Section 1 provides:

"Unless the contrary intention appears-

...

'crime' means an offence punishable upon indictment;

'criminally responsible' means liable to punishment as for

an offence; and the term 'criminal responsibility' means

liability to punishment as for an offence;

...

'offence' means any breach of the law for which a person may

be punished summarily or otherwise;"

7. Chapter III (ss.7-11) deals unequivocally and exclusively with crimes and not summary offences. In Ch. IV, under the title "Criminal Responsibility", there are a number of provisions prima facie dealing with both crimes and summary offences for they relate to "offences". Hence s.12 provides that ignorance of the law is not an excuse "for any offence"; s.14 deals with mistake of fact and provides that

"Whether criminal responsibility is entailed by an act or

omission done or made under an honest and reasonable, but

mistaken, belief in the existence of any state of facts the

existence of which would excuse such act or omission, is a

question of law, to be determined on the construction of the

statute constituting the offence";

8. s.17(2) deals with intoxication in as much as it may negative the existence of a specific intent essential to constitute "the offence" with which the accused is charged; ss.18(1) and (2) render acts of persons of immature age incapable of being offences; and s.20 provides for compulsion in certain circumstances being an excuse for the commission of offences other than certain named serious crimes.

9. Section 13 on the other hand does not deal with offences eo nomine but prima facie suggests that offences are within its ambit for it deals with certain matters said to be indispensable to the rendering of any person criminally responsible, that term, as we have seen, being defined as meaning "liable to punishment as for an offence". It provides initially that no person shall be criminally responsible for an act unless it is voluntary and intentional nor except as thereinafter expressly provided, for an event which occurs by chance, and likewise that except as thereinafter expressly provided, no person shall be criminally responsible for an omission unless it is intentional.

10. Thus on the one hand s.4 of the Act as originally drafted says that nothing "herein" (which must mean the Act and the Code which is a schedule to the Act) shall be construed to affect the construction of any statute or of any provision thereof referring or relating to summary proceedings, while on the other hand s.13 prima facie deals with (inter alia) summary offences in a way which directly affects the construction of the statutes creating or relating to them and many other sections contained in Ch. IV of the Code, while not affecting their construction as such, do affect the parameters of criminal responsibility for such offences.

11. In Reg. v. Vallance (1960) Tas SR 51 Crisp J, after noting the definitions to which I have referred, said (at p 81):

"... when we turn to Ch IV, which is headed 'Criminal

Responsibility' and s. 13 (the second section of the same

chapter) which says no person shall be criminally

responsible for an act unless it is voluntary etc., there

can be little doubt but that the draftsman here intended to

deal with the subject of criminal responsibility in its

widest possible application, i.e. both in relation to

indictable crimes which are the particular subject of the

Code and to summary offences, which are not. (Cf. s. 36 of

the Queensland Criminal Code, which is to the same effect)."

"... that the Tasmanian Criminal Code (influenced in this

regard by the Queensland model) 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. As to mens rea, it goes even further

in its application to summary offences, as I have already

pointed out."

13. Crawford J said, at p 121, that he did not find it necessary to decide whether summary offences are affected by ss.12, 13 and 14 or by the later sections of Ch. IV, but did set out a number of difficulties as they appeared to him, especially (at p 125) the proposition that "it is plain that, if the Ch.IV on Criminal Responsibility does apply to summary offences, it was never necessary for Parliament to pass s.36 of the Acts Interpretation Act 1931".

14. Not long thereafter in Snow v. The Queen (1962) Tas SR 271, at p 278, Burbury CJ and Cox J expressed their concurrence with Crisp J's conclusion in Vallance (at p 86) that:

"As to mens rea, it goes even further in its application to

summary offences, as I have already pointed out."

15. In Young v. Bryan (1962) Tas SR 323 Burbury CJ had to consider the ingredients of the offence of habitually consorting with reputed thieves contrary to s.6 of the Police Offences Act 1935. In an earlier decision that year, Gibson J had addressed the question whether the prosecution was required to prove that the defendant knew the persons with whom he was associating were reputed thieves and answered it affirmatively relying on common law principles (Bryan v. White (1962) Tas SR 113). Burbury CJ said, in Young v. Bryan (supra) (at pp 324-325):

"It is however clear from the definition of the terms

'criminally responsible' and 'offence' in s.1 of the

Criminal Code that the provisions of ss. 12 - 17 inclusive

of the Criminal Code apply to summary offences and in Snow

v. The Queen (supra) Cox J and myself in our joint judgment

adopted Crisp J's opinion in Vallance's Case that Chapter

IV of the Code - '... 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. As to mens rea, it goes even further in its

application to summary offences, as I have already pointed

out'.

We added that - 'We think that ss. 12 - 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)'.

It is therefore unnecessary to resort to the cases on the

common law doctrine of mens rea in relation to this offence.

Under s. 13 of the Code the prosecution upon each of these

charges must prove that the appellant intended to associate

with reputed thieves."

16. The following year by Act No.38 of 1963 Parliament amended s.4(3) of the Criminal Code Act 1924 by substituting for it the following subsection:

"4 - (3) Except as provided in section thirty-six of the

Acts Interpretation Act 1931, nothing contained in this Act

or in the Code shall be construed to affect the construction

of any statute, or of any provision thereof, creating an

offence punishable summarily or referring or relating to

summary proceedings."

17. It was further enacted that the section effecting the amendment "shall be deemed to have commenced on the 18th day of January 1932" (i.e., the day upon which the Acts Interpretation Act received Royal assent).

18. There is an interesting editorial note at the conclusion of the report of Young v. Bryan (supra) (at p 336). It reads:

"NOTA: Neither in this case nor in the cases of Vallance,

(1960) Tas SR 59, and Snow, (1962) Tas SR 271 did counsel

argue the question whether Ch. IV of the Criminal Code

applied to summary offences, for which reason Woodruff v.

Nolan (1934) 29 Tas LR 127, was not cited to the court.

After this case Mr. Bingham, PM, stated a case for the

determination of this question. The legislature then by the

Criminal Code Act 1963 (No. 38 of 1963) amended s.4 of the

Criminal Code Act 1924 (14 Geo.V No.69) retrospectively to

the date of commencement of the Acts Interpretation Act 1931

(22 Geo.V.No.59), which is mentioned in the amendment, so

that to cover the period between the commencements of 14

Geo.V No.69 and 22 Geo.V. No.59 would have required a

separate amendment commencing and expiring both

retrospectively. When the case stated came on before

Burbury CJ counsel for the Crown withdrew it."

19. It is not clear what form the case stated took.

20. In Onn v. Dakin No.112/1965 Crawford J had again to address the ingredients of the offence of consorting. At p 3 he said:

"Mr. Dale conceded that the prosecution must establish that

the appellant knew that the persons with whom he associated

were reputed thieves. Burbury CJ in Young v. Bryan

(supra) so held on the basis that the Criminal Code, Section

13 applied to these offences. The Criminal Code Act 1963

has since been passed and Section 2 of that Act amending

Section 4 of the principal Act may have the effect of no

longer requiring a consideration of the provisions of the

Criminal Code relating to criminal responsibility. It is

unnecessary for me to decide this matter in the facts of

this case. If the Criminal Code does not apply, the

position is that '"some blameworthy condition of mind" was

an essential ingredient of the offence, but that guilty

knowledge would ordinarily be inferred from habitual

consorting with reputed thieves.' Bryan v. White (supra) at

p 114."

21. I think the key to the resolution of the problem is that s.4(3) in both its original and amended forms emphasises that the provisions of the Act and Code are not to affect the construction of any statute dealing with summary proceedings. That is not to say that some matters specifically dealt with by such statute and construed independently of the Act and Code may not be affected by a provision of the latter, but the Act and Code may not dictate or affect the construction of that statute.

22. The first step in determining the mental elements in a crime under the 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 of the general provisions of Ch. IV of the Code relating to criminal responsibility. This was the approach taken by Burbury CJ and Cox J in construing the elements of the crime of rape in Snow (supra), at p 275, as it was the approach of Taylor J in construing the crime of wounding in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56, at pp 66-69. Neasey J in Arnol v. The Queen (1981) Tas R 157, at p 168, characterised it as a

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

Crisp J used in Vallance's Case (supra), at p 86, cited

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

Queen (supra), 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.'

23. 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 principals of criminal

responsibility relating to the mental element in crime

(including insanity and intoxication).'"

24. See also the decision of the Court of Criminal Appeal in Bennett v. The Queen No.15/1991 where Green CJ adverted to these and a number of other references relating to the supplanting of the common law doctrine of mens rea by s.13.

25. It was the intention of its draftsman that the parameters of the acts and omissions made criminal by the detailed sections crafted by him in Parts II to VIII of the Code should be determined by the fusion of the general principles of criminal responsibility crafted by him in s.13 with the external elements set out in those later sections. In this way a comprehensive system of criminal jurisprudence was sought to be established, each section being interdependent. Such a plan was inappropriate for the myriad pieces of legislation creating summary offences. For the situations covered by the Code the draftsman saw as an (almost) indispensable pre-requisite the need for a voluntary and intentional act or an intentional omission, but such a pre-requisite may be quite incongruous in many situations covered by summary proceedings provided for in existing or future statutes not drafted within the framework of the same comprehensive plan. The construction of offences such as being drunk and incapable (s.4, Police Offences Act 1935), being a person without sufficient lawful means of support (s.5, Police Offences Act), being the owner of a dog which causes bodily injury to any person (s.35, Dog Control Act 1987), or failing to vote (s.122A, Electoral Act 1907), to say nothing of hosts of omissions such as a failure to move parked cars after the lapse of some permissible time under Municipal By-Laws or Traffic Regulations, cannot be systematically or satisfactorily essayed by reference to a provision such as s.13 of the Code. But once the relevant statute is construed independently of the Act and Code and provided that upon that independent construction it does not appear that such defences excuses or justifications are intended to be modified or negated, it is not inappropriate that such general principles as are adverted to elsewhere in Ch. IV, or at the very least in those sections which specifically purport to deal with "offences", should be prayed in aid so as to admit of the defences, excuses or justifications, or the exception of them, being applied to the statute in question. Thus the principle that ignorance of the law is not an excuse for an offence (s.12) is applicable to a summary offence although it plays no part in the construction of the statute creating the offence. In the same way I am of the opinion that s.17(2) and (3) as interpreted in Snow v. The Queen and Palmer v. The Queen (supra) are applicable to any summary offence, while playing no part in its construction. Section 17, both in original form and as amended to its present form in 1946 (10 Geo.VI No.14), was indubitably based on the decision of the House of Lords in Director of Public Prosecutions v. Beard (1920) AC 479 (see Snow at p 280; Palmer at p 153) which bears out, at least in part, the claim of the Attorney-General in his 2nd reading speech as reported in the "Mercury" newspaper of 29 February 1924 that

"the provisions dealing with criminal responsibility and

matters of justification and excuse have been framed in the

light of the most recent decisions of the English Courts and

with a view, whenever possible, to settling doubts which

have arisen from time to time in questions relating to these

matters".

26. It would be extraordinary if Parliament having determined an immutable test for intoxication as an excuse for criminal conduct triable on indictment should have intended to preserve the possibility that the ever evolving Common Law might develop a different test for offences triable summarily. The same comment can be made in respect of any other defence or justification, whether it be insanity, duress or whatever. The practical difficulties of administering different tests are manifest in the present case where a Code equivalent and a simple offence not having a Code equivalent were both triable summarily as separate counts on the one complaint. The adoption of different tests of responsibility is prone to bring the law into disrepute. With respect, s.36 of the Acts Interpretation Act from its inception did serve a purpose, notwithstanding the doubt as to its necessity expressed by Crawford J in Reg. v. Vallance (supra) at p 125. But for that section, acts constituting an offence punishable summarily, which also constituted a crime under the Code, would have been required, as would the statute creating the offence, to be construed without reference to the Code and especially to the prime characteristic contained in s.13 and underpinning criminal responsibility thereunder, namely the voluntary and intentional character of the act or omission in question. The purpose of s.36 was to apply that principle of criminal responsibility to offences having a Code equivalent and to import into their parent statute Code terms and expressions without the need for repetition. The fact that specific reference was made to "the principles of criminal responsibility applicable to such crime" applying in relation to such offences does not, in my view, expressly or by implication, deny to offences without a Code equivalent the application of those other principles of criminal responsibility specifically provided for in respect of "offences" (e.g. ignorance of the law, immature age, intoxication or compulsion).

27. Whether the draftsman of the amending Act of 1963 deliberately sought to reverse the trend of applying s.13 to such summary offences as consorting embarked upon in Young v. Bryan (supra) we can but speculate. But the effect of the amendment, in my view, was to make it clear that in construing the summary offence in question recourse could not be had to such a section, but the statute creating the offence or referring or relating to summary proceedings was itself to be construed independently of the Code. The same concept is repeated in s.14 of the Code where the availability or otherwise of a defence of honest and reasonable mistake of fact must be determined by reference only to the statute creating the offence. On the other hand, once the ingredients of the summary offence are construed then unless the statute creating it otherwise provides (expressly or by implication), those matters of defence or justification dealt with by the Code and expressly said to apply to "offences" may be prayed in aid.

28. Only those offences which had a Code equivalent were to be construed in the same way as crimes created by the Code. Being of the same nature they fitted into the comprehensive plan I have mentioned and lent themselves to that method of construction. The 1963 amendment was, it would seem, designed to reinforce this. If Parliament by the 1963 amendment intended to render the sections dealing with defences and the like contained in Chapter IV of no application to summary offences other than those with a Code equivalent it thereby deprived the word "offence" of any effectual meaning.

29. The question before us is not whether all or none of the provisions of Ch. IV of the Criminal Code apply to summary offences. The question rather is whether any part of s.17 applies to the summary offence of trespass so as to afford the appellant a possible defence of intoxication. In the process of my reasoning, I have come to the conclusion that some of the provisions of Ch. IV apply to some summary offences while others clearly do not. In my view such an offence is not one where the prosecution is required to prove that the offender had a specific intent and in consequence s.17(2) does not afford a defence. The offence is one of basic intent only and for the reasons advanced in Snow v. The Queen and Palmer v. The Queen (supra), s.17(3) operates to deny any exculpatory effect in respect of the offence charged to the evidence of drink taken. While I agree with my brethren that upon its proper construction the offence under the Police Offences Act 1935, s.14B, requires proof of the element that the person charged knew that the premises entered belonged to another, where as here there was ample evidence from which the inference could be drawn beyond reasonable doubt that the offender was, but for any obtuseness due to his intoxication, informed that the land in question did indeed belong to another, the court was entitled to be so satisfied and was obliged to put aside as irrelevant to that issue the evidence of drink taken. In my opinion, the learned magistrate rightly convicted the appellant and the motion should be dismissed.

SLICER J The applicant was convicted of an offence contrary to the Police Offences Act 1935, s.14B. There was ample evidence that at the time of his entry on to property he was severely intoxicated. Earlier in the evening of 16 November 1990 he had visited the house occupied by his sister at 46 George Street, North Hobart, that house being opposite to the one unlawfully entered by the applicant. At approximately 8.00pm he was described by a witness as being drunk, manifested by staggering of movement, slurring and spitting with his speech. He continued to consume alcohol until at approximately 9.00pm he collapsed into a comatose state. At about 11.00pm his sister, with the assistance of a friend, removed his shoes and placed him on a bed thinking him to be safe for the night.

2. Some time around 3.00am on 17 November Mr. Martin Carnes, a stranger to the applicant, asleep at his residence at 53 George Street, was awakened by a hammering on his back door. On opening the same he discovered the applicant. Quickly discerning "that he's been drinking, he was falling around and he smelled of alcohol", Mr. Carnes said to him "You're obviously drunk and I think you've got the wrong address so would you please leave". The applicant attempted to gain entry, repeating "Let me in, let me in". Mr. Carnes managed to eject the applicant onto the street, locked his gate and telephoned the police. The applicant, forcing the lock from the gate, gained entry to the house. Constable Wilkes, on attending the scene, found the applicant shoeless and slumped against the wall of the porch. He requested the applicant, whom he believed to be intoxicated, to leave the premises. The applicant refused and attempted to re-enter. Understandably he was arrested for trespass, conveyed to Police Headquarters, charged and detained. Constable Wilkes deposed that had he found the applicant in a public place, he would have had cause to arrest him for the offence of being drunk and disorderly.

3. The applicant had little, if any, memory of the events of the evening. He deposed that his house at New Norfolk had an outside toilet and he surmised that he may have woken up, attempted to go outside to go to the toilet and by mistake found himself at the wrong house. That was a not unreasonable inference to be drawn from the evidence.

4. The complaint alleging that the applicant had entered "on the land of another person" did not specify which of the two entries made by the applicant grounded the charge and no findings made by the learned magistrate were dependent upon this matter. I will assume that the offence arises out of the second entry. Some questions posed by this appeal may be different if the offence alleged was one of "remaining", although in real terms the difference is likely to be one of "evidence and knowledge".

5. On the hearing of the complaint the applicant's counsel contended that the intoxication of the applicant could be taken into account in the determination of the responsibility for the offence of trespass. The learned magistrate rejected the contention and ruled:

"... that the defence of voluntary induced intoxication

provides no defence to any crime or offence in Tasmania

unless it is intoxication to the degree discussed in Palmer,

and set out in Section 17 of the Code ... the law (is) that

self induced intoxication provides no defence ..."

6. On the motion to review, Cox J caused the matter to be referred to the Full Court.

7. At issue is whether the Criminal Code Act 1924 is intended to define criminal responsibility with respect to summary offences which involves, in turn, consideration of intent, knowledge and intoxication and their effect, if any, on an offence contrary to s.14B.

8. The Police Offences Act 1935, s.14B, states:

"A person shall not, without reasonable or lawful excuse

(proof of which lies upon him), enter or remain on the land

of another person, without the consent of the owner or

occupier of the land or the person in charge thereof."

9. This section does not represent the common law of trespass, it going beyond the concept of compensation between citizens. See Wilkinson v. Condell (1940) SASR 139.

10. The question is whether the offence requires knowledge that the land entered was "the land of another person"; such question being separate from any state of mind or belief pertaining to "reasonable or lawful excuse".

11. It has long been established that in cases involving statutory offences it is necessary to show:

"... he knew that all the facts constituting the ingredients

necessary to make the act criminal were involved in what he

was doing." He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 CLR 523 at

p 531. See Sherras v. De Rutzen (1895) 1 QB 918, and is

best expressed in modern terms as: "Nowadays, a presumption

is made that mens rea is an element in a statutory offence

though the offence is defined only by reference to its

external elements" Brennan J in He Kaw Teh v. The Queen

(supra) at p 565, and at p 569:

"In statutory offences, general or basic intent is an intent

to do an act of the character prescribed by the statute

creating the offence; special or specific intent is an

intent to cause the results to which the intent is expressed

to relate. Both general intent and specific intent may be

established by knowledge: the former by knowledge of the

circumstances which give the act its character, the latter

by knowledge of the probability of the occurrence of the

result to which the intent is expressed to relate."

12. This approach is consistent with that taken by the Full Court in Gibbon v. Fitzmaurice and Ors. [1986] TASSC 55; (1986) Tas R 137. That case concerned the interpretation of the juxtaposition of "permit" and "reserved land". As Neasey J stated, at p 150:

"Knowledge of the thing permitted is inherent in the word

'permit'. But what is permitted? The act of permission

extends to allowing or countenancing the prescribed animal

to be on a given area of land. That the land should be

reserved land so as to make the regulation relevant is a

qualification which is external to the act of permission.

... use of the word 'permit' is not decisive of the question

of whether some form of mens rea must be proved by the

complainant in order to establish the offence. It is a case

where, since the regulation is silent as to whether or not

mens rea must be proved, wider considerations must be taken

into account in order to decide the question."

13. In one sense the term "reserved land" could be regarded as a question of law, i.e. by virtue of regulation it has been declared to be "reserved land" and is independent of any question involving intent, its status as "reserved land" being external to the ingredients of the offence. As such then its determination is by way of proclamation which requires public notice to the community. See Williams v. Law Unreported No. B28/1987 (Nettlefold J) and Underwood J in Gibbon v. Fitzmaurice and Ors. (supra) at p 158:

"The provisions of the National Parks and Wildlife Act 1970

provide in effect, that land becomes reserved land upon a

proclamation made by the Governor. Thus the existence and

boundaries of reserved land are capable of being ascertained

by any member of the public."

14. The Police Offences Act, s.14B, differs in two important respects from the regulation at issue in Gibbon v. Fitzmaurice and Ors. (supra). The first is that s.14B is criminal and not merely regulatory, providing as it does for a penalty of a term of imprisonment not exceeding twelve months where the land entered is a dwelling house, and six months for other land. Powers ancillary to the offence include the grant of warrant (s.14B(3)), the use of force (s.14B(4)), and powers of arrest (s.55(2B)). The second distinction is inherent to the wording of the section. It does not state that a person shall not enter on land without consent, but that no person "shall enter or remain on the land of another person". The addition of the word "remain" may connote an acceptance by the Parliament of inadvertent entry. "Reasonable or lawful excuse" may not necessarily encompass inadvertent entry.

15. The view that an offence contrary to s.14B is of a criminal character is consistent with the approach taken by the High Court in Barker v. R. [1983] HCA 18; (1983) 153 CLR 338 where Gibbs CJ stated at p 341:

"The word 'trespasser' is a basic legal term with an

established legal meaning. It should be understood in that

sense unless the context reveals that it bears a different

meaning (Attorney-General (NSW) v. Brewery Employees Union

of NSW [1908] HCA 94; (1908) 6 CLR 469, at p 531). The context - the

creation of a serious criminal offence - unquestionably

requires an additional element, mens rea."

"It may be accepted that mens rea in regard to entry as a

trespasser is an implied element of the offence, so that the

prosecution must prove that the accused intended to enter as

a trespasser. ... If the wide view is adopted, a case

involving entry for other than a limited purpose in which

issues of honest claim of right arise may well present

questions more suitable for metaphysics than for a criminal

trial."

17. In a recent decision of the Supreme Court of South Australia in Gunn v. Thompson (1990) 54 SASR 1, Duggan J accepted that an offence contrary to the Crimes Act (Cth), s.89(1), which states:

"A person who, without lawful excuse (proof whereof shall

lie upon him), trespasses or goes upon any prohibited

Commonwealth land shall be guilty of an offence"

required proof of mens rea in accordance with the reasoning of the High Court in He Kaw Teh v. The Queen (supra).

18. Indeed, in cases dealing with entry for unlawful purpose the common law goes further requiring some mental element to be associated with the permission of the owner or occupier. R. v. Collins [1972] EWCA Crim 1; (1973) 1 QB 100.

19. Thus in order to prove its case in accordance with the test outlined by He Kaw Teh, proof of the general intent must be established by proof of knowledge of the circumstances which gave the act (entry) its character. The character of the act (which makes it unlawful) is that the land belonged to another. Proof of that knowledge is required. In most cases this would not be difficult to show. In cases such as this (where intoxication is concerned) the test is not whether the effect of alcohol is relevant to the issue but whether as a matter of policy the law precludes the reception of such evidence.

20. The provision "without reasonable or lawful excuse (proof of which lies on him)" requires a different approach. The distinction was adverted to by Neasey J in Gibbon v. Fitzmaurice (supra) when he said at p 152:

"It is not necessary to examine in this appeal the questions

whether some alternative or lesser form of knowledge may

constitute required mens rea, or whether an honest and

reasonable belief in a state of affairs which if true would

make the act innocent would provide a defence. The

established tendency of the law in Australia, however, seems

to leave little doubt that to hold such an honest and

reasonable belief would be exculpatory".

21. It has been said that "the absence of lawful excuse" forms part of the mens rea, but there remains a distinction (if only because of the statutory requirement as to onus).

"It may be that little turns on the question whether honest

and reasonable mistake should be regarded as a special

defence available only in cases not requiring mens rea...

On either view the statute and the nature of the offence

must be considered in deciding what mental state is

required, and whether an objective test of reasonableness is

to be applied together with the subjective test of whether

there was a mistaken belief." Gibbs CJ in He Kaw Teh v.

The Queen (supra) at p 534.

22. But, in this case, "reasonable or lawful excuse" could include matters of "claim of right", defence of property or a belief that permission had been granted by the owner or occupier. A belief that he or she was on another's land need not come within the ambit of a "reasonable or lawful excuse" since it forms part of the ingredients of the offence as defined by its external ingredients, i.e. the land of another.

23. The consent of the owner or occupier is altogether external to the issue of intent. See Snow v. R. (1962) Tas R 271.

24. Both aspects require knowledge but the way in which the test of knowledge is approached differs. Thus:

"'Lawful excuse' is not synonymous with 'legal right' for

present purposes, for an honest and reasonable belief by the

accused in the existence of a state of things which, if

true, would have justified his entry is also sufficient to

exculpate him." Roffey v. Wennerbom (1965) QdR. 41 at

p 43.

25. On either test enunciated (knowledge that the land belongs to another or a belief that one is on non prohibited land) it nevertheless remains one of awareness or consciousness. The question then becomes whether or not, on either proposition, evidence of intoxication can be received as a factor in the determination of knowledge.

26. The question whether evidence of intoxication can be received in relation to the presence of knowledge was raised by Brennan J in He Kaw Teh v. The Queen (supra) at p 571:

"Analysis of the external elements of an offence as a step

in the ascertaining of the mens rea required is manifestly

necessary when the effect of intoxication arises for

consideration..."

and

"... the ascertainment of the criminal responsibility of a

partially intoxicated offender depends on a proper

identification of the mental state to which the partial

intoxication is relevant."

27. Applying the reasoning adopted by the House of Lords in D.P.P. v. Majewski [1976] UKHL 2; (1977) AC 443 intoxication only went to a specific or ulterior intent.

28. That approach, grounded on the principle of public policy, is not strictly logical. As Lord Salmon stated in Majewski at p 483:

"... I accept that there is a degree of illogicality in the

rule that intoxication may excuse or expunge one type of

intention and not another. This illogicality is, however,

acceptable to me because the benevolent part of the rule

removes undue harshness without imperilling safety and the

stricter part of the rule works without imperilling justice.

... Absolute logic in human affairs is an uncertain guide

and a very dangerous master."

29. Barwick CJ acknowledged that some of the law relating to intoxication may be historically anomalous when, in The Queen v. O'Connor [1980] HCA 17; (1979-1980) 146 CLR 64, he stated, at p 86:

"It is proper at this point to acknowledge that the

reduction of murder to manslaughter by reason of a state of

intoxication is so far an entrenched anomaly. In the first

place, murder does not fit the definition of a crime of

specific intent: but yet it is consistently so treated.

Secondly, manslaughter for its part is very much affected by

its definition as unjustifiable homicide. The anomaly has

not been the subject of critical judicial examination."

30. The application of the decision in The Queen v. O'Connor (supra) to summary offences is set out by Barwick CJ, at pp 87-88:

"Further, in my opinion, such evidence tendered to raise a

doubt as to the actual intention with which the physical act

involved in the crime charged, if done, was done is

admissible on the trial of an accused for any offence,

whether at common law or by statute, with the exception of

such statutory offences as do not require the existence of

an actual intent, the so-called absolute offences."

31. The Criminal Code, s.17(3). provides that evidence of intoxication (unless coming within the exception of subs.(2))

"shall not rebut the presumption that a person intends the

natural and probable consequence of his acts".

32. As Crawford J in Snow (supra) stated, at p 291:

"The inclusion of sub-s.(2) (of s.17) provides the exception

referred to in sub-s.(3) - evidence of intoxication not

amounting to the incapacity referred to in sub-s.(3) is said

not to rebut the presumption that a person intends the

natural and probable consequences of his acts. I prefer not

to express any final opinion on the meaning of this

subsection but it obviously creates great difficulty..."

and having referred to one of the propositions expressed in

Beard's case (1920) A.C. 479, continued: "Probably what the

proposition means is that drunkenness alone is not a

defence, and that it was not intended to be taken to mean

that evidence of drunkenness is not relevant to the various

aspects of mens rea, intent, mistake or knowledge."

33. On a literal reading of the section it would only operate to exclude evidence from the determination of the existence of an intent of the first characterisation formulated by Brennan J in He Kaw Teh, at p 569, namely:

"... a decision to bring about a situation so far as it is

possible to do so - to bring about an act of a particular

kind or a particular result".

34. That reading may not have the effect of precluding evidence of knowledge which forms the second characterisation given by Brennan J:

"Intent, in another form, connotes knowledge. ... intention

is, for all practical purposes, established by knowledge

that another person is, or is likely to be, in the path of

the movement".

35. However, that situation may be covered by s.17(2) and in this case there is no necessity to pursue that line of analysis.

36. A basis on which evidence of intoxication can be admitted in relation to an offence such as s.14B was outlined in the English decision of Jaggard v. Dickinson (1980) 3 All ER 716, at p 718, which involved the question of whether a person honestly believing that she had a lawful excuse for damaging property could adduce evidence of intoxication to show that she wrongly believed she was entering the house of a friend who permitted her to treat it as her own. In fact she had attempted to break into a nearby identical house. The prosecution contended that the offence was one of basic intent and on the authority of Majewski (supra) that intoxication could not be taken into account, and further that the words "without lawful excuse" formed an element of mens rea. The court rejected this contention on the following basis:

"... the argument transfers the distinction between offences

of specific and of basic intent to a context in which it has

no place. The distinction is material where the defendant

relies on his own drunkenness as a ground for denying that

he had the degree of intention or recklessness required in

order to constitute the offence. Here, by contrast, the

appellant does not rely on her drunkenness to displace an

inference of intent or recklessness; ... Her defence is

founded on the state of belief called for by s 5(2). True,

the fact of the appellant's intoxication was relevant to the

defence under s 5(2) for it helped to explain what would

otherwise have been inexplicable, and hence lent colour to

her evidence about the state of her belief. This is not the

same as using drunkenness to rebut an inference of intention

or recklessness. Belief, like intention or recklessness, is

a state of mind; but they are not the same states of mind.

Can it nevertheless be said that, even if the context is

different, the principles established by Majewski ought to

be applied to this new situation? If the basis of the

decision in Majewski had been that drunkenness does not

prevent a person from having an intent or being reckless,

then there would be grounds for saying that it should

equally be left out of account when deciding on his state of

belief. But this is not in our view what Majewski decided.

The House of Lords did not conclude that intoxication was

irrelevant to the fact of the defendant's state of mind, but

rather that, whatever might have been his actual state of

mind, he should for reasons of policy be precluded from

relying on any alteration in that state brought about by

self-induced intoxication. The same considerations of

policy apply to the intent or recklessness which is the mens

rea of the offence created by s 1(1) and that offence is

accordingly regarded as one of basic intent (see R v

Stephenson). It is indeed essential that this should be so,

for drink so often plays a part in offences of criminal

damage, and to admit drunkenness as a potential means of

escaping liability would provide much too ready a means of

avoiding conviction. But these considerations do not apply

to a case where Parliament has specifically required the

court to consider the defendant's actual state of belief,

not the state of belief which ought to have existed. This

seems to us to show that the court is required by s 5(3) to

focus on the existence of the belief, not its intellectual

soundness; and a belief can be just as much honestly held if

it is induced by intoxication as if it stems from stupidity,

forgetfulness or inattention.

... Once the words (without lawful excuse) are put in

context, so it is maintained, it can be seen that the law

must treat drunkenness in the same way in relation to lawful

excuse (and hence belief) as it does to intention and

recklessness, for they are all part of the mens rea of the

offence. To fragment the mens rea, so as to treat one part

of it as affected by drunkenness in one way and the

remainder as affected in a different way, would make the law

impossibly complicated to enforce."

37. That approach would have application to an offence of the nature prescribed by s.14B.

38. From the above, the following propositions can be extrapolated:

1. Common law permits the use of evidence of intoxication in

the determination of whether there was knowledge of the

identity of the land in question.

2. Section 17(3) is evidentiary and operates to effect the

law of basic intent in so far as it relates to probable

consequences.

3. Section 17(3) would not preclude the admission of

evidence of intoxication in relation to the question

"without lawful excuse".

39. Although both the Tasmanian and Griffith Codes drew heavily on the report of the Royal Commission (UK) of 1879, they differ in significant respects. One of those differences concerns the approach taken to the inter-relationships of the Code with summary offences. Although as Townley J said in Martyr v. R. (1962) QdR. 398, at p 416: "At the outset I may say with the greatest respect to Sir Samuel Griffith that I deprecate the practice of referring to his notes to his draft of the Code as though they were judicial pronouncements: they are nothing of the sort." it is useful to examine, in general terms, the issue which each draft or enactment sought to address. The 1897 explanatory letter of Sir Samuel Griffith illustrates the process whereby the issue was addressed. He stated at p 9:

"... an attempt has been made to cover the whole ground of

what may be called the living Criminal Law, including

Procedure, with the exceptions just stated, and with the

further exceptions of (1) offences against Statutes which

may be regarded as in the nature of police regulations,

having no analogy with or relation to indictable offences

..."

40. The 1879 Royal Commission report stated, at p 12, that its recommended draft bill did not include certain statutory offences, in part because:

"The bill referred to us and the Draft Code appended to our

report deal only with indictable offences ... The object is

to frame a Code, including as far as practicable, all those

crimes, whether at common law or created by statute, which

in the ordinary course of affairs come to be tried in the

Courts of criminal justice."

and at p 13:

"... if it is found expedient to incorporate any of these

provisions in the general criminal law of the country, this

can be done by legislation from time to time as occasion

arises."

41. Consistent with the above, the Queensland Code, s.36, states:

"(1) The provision of this Chapter apply to all persons

charged with any criminal offence against the Statute Law of

Queensland.

(2) Except for sections 22(3) (knowledge of statutory

implements) 29 (immature age) and 31 (justification by law

or compulsion) of this Code, this Chapter does not apply to

regulatory offences."

and in a note to this section of the Draft Code, Sir Samuel

Griffith stated: "So far as the rules declared in this

Chapter differ from the common law, they would not apply to

persons charged with offences committed against Imperial

Law."

42. This provision has been held to extend the provisions of the Code to a wide range of statutory offences; see Hunt v. Maloney (1959) QdR. 164, West v. Perrier (1962) Qd WN 5 and has been extended to the civil law: see White v. Connolly (1927) St.R.Qd 75, Love v. Egan (1971) 65 QJPR 102 and see also other cases discussed by O'Regan in 1990 vol.16 University of Queensland Law Journal, at p 117. The Queensland provision was considered by the Tasmanian Court of Criminal Appeal in R. v. Vallance (supra) where Crisp J, at p 81, made reference to s.36 and equated its effect with that of ChIV of the Tasmanian Code.

43. The Western Australian Criminal Code has been interpreted in a similar manner. See West v. Suzuha (1964) WAR 112.

44. Canadian law comprises a combination of the Criminal Code (Can) and the Interpretation Act 1970, s.27(2), which states:

"All the provisions of the Criminal Code relating to

indictable offences apply to indictable offences created by

an enactment, and all the provisions of the Criminal Code

relating to summary conviction offences apply to all other

offences created by an enactment, except to the extent that

the enactment otherwise provides."

45. The question for the Canadian courts was in what circumstances does s.27(2) oust the application of the Code from federal legislation. Conflicting decisions have been made by courts of different jurisdictions. In two instances - Re Krassman and The Queen (1972) 8 CCC (2d) 45 and In Re Adelphi Book Store Ltd. and The Queen (1972) 8 CCC (2d) 49 the Code was held to apply; whilst a third Re Purdy et al and The Queen (1972) 8 CCC (2d) 52 held that the provisions of a Code did not apply to provisions of the Broadcasting Act. In Purdy (supra), at p 58, the court held:

"Only those provisions of the Criminal Code are to be

applied by virtue of s-s. (2) of s. 27 of the Interpretation

Act which relate to indictable offences or which relate to

summary conviction offences and which are applicable without

any change in the wording thereof."

46. A fourth decision reviewing the earlier three decisions favoured the Krassman and Adelphi decisions on the basis that the particular legislation did not purport to constitute "a complete and exhaustive procedure". Regina v. Byers and Mueller (1975) 28 CCC (2d) 466.

47. The Canadian approach has been to first examine the statute and then to determine whether it purported to exclude the operation of the Code, that is, one looks at the wording of the legislation and compares it with the Code. In a similar manner, one could look at the offence set out in the legislation and if it differs in substance from the Code, then the Code test has no application. That approach has some similarity with the effect of the Acts Interpretation Act 1931 (Tas),s.36, namely that in order to determine applicability one commences with an analysis of the statute sought to be affected and only then is a comparison made with the relevant Code provision.

48. The Tasmanian position was stated in the Criminal Code Act, s.4, which originally provided:

"(1) After the passing of this Act every statute shall, for

the purposes of this Act, be read and construed as if any

offence therein mentioned for which the offender may be

prosecuted on indictment or information (however such

offence may be therein described or referred to) were

described or referred to as a crime as defined by the Code;

and all provisions of this Act relating to crimes generally

shall apply to every such offence.

(2) Where in any statute reference is made to proceedings

upon information in the Supreme Court, the same shall be

construed as a reference to proceedings upon indictment.

(3) Nothing herein contained shall be construed to affect

the construction of any statute, or of any provision

thereof, referring or relating to summary proceedings."

49. An apparent ambiguity in the wording of the section creates difficulty in determining whether the "general" provisions of the Code apply to any offence which was to be tried or determined outside of the procedural forms required by the Code. The problem is compounded by the use of the words "information" and "offence".

50. The Australian Courts Act 1828, s.4, gave jurisdiction to the Supreme Court of Van Diemen's Land in terms that it "shall and may enquire of, hear, and determine all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences of what nature or kind soever, ...", and s.5 provided that the Attorney-General may proceed by information "Until further provision be made as ... directed for proceeding by juries". Section 6 permitted persons by leave of the court to exhibit a criminal information (such referring to private criminal prosecutions).

51. Stephen, in his Commentaries on The Laws of England, 21st ed. vol.4 at p 200, stated:

"The King's Bench Division has, and alone has, an original

jurisdiction in regard to criminal informations filed by the

Attorney-General, which are an alternative method of

initiating prosecutions."

At p 243:

"A criminal information is a complaint by the Crown filed ex

officio by the Attorney-General in the King's Bench Division

of the High Court. It can only be used in cases of

misdemeanour. If this procedure is adopted, no previous

examination is held by the Justices. ...

The Attorney-General has the right ex-officio to file

informations in the case of such misdemeanours as threaten

more particularly the stability of the State; as in cases of

sedition, libels upon the King, his Ministers or Judges, and

misconduct by public officials. ...

The procedure on the trial of a criminal information in the

King's Bench Division is the same as on the trial of an

indictment by a Court of Assize."

52. The Criminal Law Procedure Act 1873 (Tas.), s.5, (37 Vict., No. 6.), provided for two forms of information - one exhibited by leave (private), the other laid by the Attorney-General - and defined how the separate forms of information were to be endorsed. It continued:

"... and in every case not otherwise provided for, every

such criminal information, and all proceedings in relation

thereto, shall, as far as may be practicable, be subject in

all respects to the same rules as would be observed in

England with respect to a similar criminal information in

the name of the Master of the Crown Office; ..."

53. The Criminal Law Procedure Act remained in force until the date of commencement of the Criminal Code.

54. Earlier Tasmanian legislation had maintained a distinction between an information, a charge and a complaint. Act 8 Vict., No.13 (a consolidating Act for Courts of General Sessions) concerned the powers of justices and referred, in s.18, to "the charge" and the form prescribed in Schedule A required the words "make charges".

55. The Magistrates Summary Procedure Act 1855 (19 Vict., No.8) (an Act relating to the performance of duties of Justices of the Peace) distinguished, in s.1, between an information (resulting in liability to imprisonment or fine) and complaint (liability for the payment of money) and the subsequent issue of a summons. By virtue of s.10 a warrant at first instance could be issued only by an information made on oath.

56. Corresponding legislation (19 Vict., No.9), was referred to as The Magistrates Criminal Procedure Act. Section 27 stated:

"This Act shall extend only to crimes, misdemeanours and

offences which are to be prosecuted by information in the

name of Her Majesty's Attorney-General, or other Officer."

57. The Act provided in general terms for procedures required of magistrates in dealing with matters which ultimately were to be tried in the Supreme Court. Section 4 required the filing of a prescribed form "Where any information for any crime or misdemeanour shall be filed", and in the Schedule, Form "A" contained the words "charge for a crime or misdemeanour", which Form "F" entitled "Certificate of Information being filed" was worded "I hereby certify that an Information was filed ... by His Majesty's Attorney-General".

58. That certification was repeated in identical wording in Form 3 of the Second Schedule of the Justices Procedure Act 1919 which appeared under the heading "Certificate of Indictment being found".

59. The Magistrates Criminal Procedure Act was repealed by the Criminal Law Procedure Act 1873 which established a scheme for the conduct of criminal proceedings. Section 2 defined information as including "any plea, replication or other pleading". All proceedings were to be commenced by way of information. Formal objections to the information were to be taken before the jury was sworn (s.18) and provision was made for alternative convictions for offences other than those set out in the "information" (ss.35-38).

60. The meaning of the term "information" was maintained in the Justices Procedure Act, 1919. This legislation (which repealed, inter alia, the Magistrates Criminal Procedure Act) introduced a scheme whereby all proceedings were commenced by way of complaint and thereafter the two categories of cases within the jurisdiction (simple offences which included indictable offences punishable summarily and indictable offences) were to be dealt with by different procedures. Section 7 defined "complaint" as "Complaint includes the terms 'information', 'information and complaint', 'charge' and 'charge of an indictable offence' when used in any Act, including this Act, and unless the contrary appears means an information or complaint before justices".

61. But within the Act the word "information" is used with one exception (s.63 - arrest for breach of bail in both indictable and summary offences) only in relation to proceedings within Ch.IV, i.e. matters being processed through a summary court preparatory to their determination by the Supreme Court. Section 67 referred to the filing of an information in the Supreme Court; s.68 to the issue of a warrant upon the production of a certificate that an information had been filed; and the ancillary consequences of "an information" are set out in ss.69 and 70. It would appear that the term was preserved in the strict sense to cover the ex-officio commencement of proceedings by the Attorney-General.

62. The scheme of the legislation maintained the identification of the document "information" as being the form of commencement of a proceeding which referred to a kind of prohibited conduct which could only be tried by the Supreme Court, either by way of committal by justices or ex-officio proceedings taken by the Attorney-General.

63. Although the term "information" has come to be used to describe the form commencing summary offences, there can be little doubt that in the Tasmanian context it referred to a document which was either the equivalent of or preparatory to an indictment. Further it had been used to commence proceedings which alleged the commission of a crime or misdemeanour which was triable only by the Supreme Court. Its nature was still recognised in 1931 when the Acts Interpretation Act, s.46, provided:

"and where in any Act any offence is declared to be a felony

or is made punishable upon information, the same shall be

deemed to be a crime".

64. The use of the word has an import to the meaning of the Criminal Code Act, s.4.

65. A similar approach can be discerned in relation to the use of the word "offence". Act 34 Vict., No.3 (entitled An Act to Remove Some Defects in the Administration of the Criminal Law) s.1 states

"... offence shall mean any treason, felony or misdemeanour

cognizable in the Supreme Court".

66. Section 3 applied certain provisions of the Magistrates Criminal Procedure Act, which had been entitled "An Act to facilitate etc. with respect to persons charged with criminal offences".

67. The Criminal Law Procedure Act 1873, s.2, defined offences as "mean(ing) and includes any crime, misdemeanour or offence cognizable in the Supreme Court". That legislation used the term "felony" to describe particular named prohibited conduct, "offences" for others (including rape and sodomy) and the term "misdemeanour" was given its common law meaning. However, when the statute described matters of general application (e.g. powers of amendment s.19, right to counsel s.32, insanity s.44 and powers of apprehension s.77) the word "offence" was used as an all encompassing term.

68. The Criminal Code Act did not come into existence in vacuo. It derived much of its structure from other sources but nevertheless was designed to codify the criminal law for the State of Tasmania. Its schedule contains seventy-nine Acts of Parliament including the Criminal Law Procedure Act 1873 either partially or wholly repealed. Given the above, s.4(1) could then be understood if the words "indictment" and "information" were used in their historical context and were derived from prior usage. The word "information" contained in the provision appearing in s.4 "for which the offender may be prosecuted on indictment or information" could only refer to either an ex-officio proceeding instituted by the Attorney-General or a category of prohibited conduct limited to one stated in the Code (even if it came within the jurisdiction of a summary court). On either interpretation, s.4(1) limits the application of the Code and does not permit its application to any other offence. Subsection (2) is illustrative of that approach, referring simply to the institution of prosecution by way of "information to the Supreme Court" as being equated to an indictment. It defines the process of commencement rather than the description of the prohibited conduct prescribed by the Parliament.

69. Subsection (3) (unamended) excluded summary offences (not being indictable) from the application of the Code.

70. The meaning of s.4(1) would be to apply the Code only to those forms of conduct which by definition could be prosecuted by alternate forms and procedures. The reference to "information" or "indictment" is conjunctive, i.e. the offence possesses the characteristics which could result in prosecution in both forms - the distinction being one of jurisdiction only. On that reading, only an offence subject to either form of prosecution contained in a statute could be subject to the application of the Code.

71. The provision "however such may be therein described or referred to" would then require an analysis of the substance rather than the description of the offence.

72. The word "offence" described prohibited conduct which if contravened in a statute (however described) as being punishable in the Supreme Court is deemed to be a crime and thus subject to the Code. (For example, the Conspiracy and Protection of Property Act 1889, s.8, which remained in force and provided for trial by indictment or by a court of summary jurisdiction. See also Contravention of Statutes Act 1889, s.2, and the Traffic Act, s.32, and Poisons Act, s.47.) In addition, the Poisons Act 1971, s.57, provides:

"The provision of sections 8 and 9 of the Criminal Code

apply to and in relation to offences against this part that

are punishable summarily as if those offences were crimes

within the meaning of that Code."

73. This section would be unnecessary if the Code provisions applied generally to summary offences.

74. If that approach is correct then the word "offence" is simply a compendium used to describe forms of conduct which attract the application of the law in a particular way, i.e. it has the characteristics of a crime (no matter how described) irrespective of the statute which creates it (e.g. Poisons Act,) or where because it is dealt with in a court of summary jurisdiction it does not lose that characteristic. That approach is consistent with the one adopted in the Acts Interpretation Act 1931, s.46, which provided:

"'Crime' shall mean any offence punishable upon indictment

as provided by the Criminal Code, and where in any Act any

offence is declared to be a felony or is made punishable

upon information, the same shall be deemed to be a crime."

75. In relation to the approach taken to the word "offence" by the Parliament, it is of assistance to consider the provisions of the Code, s.421. As originally framed, that section read:

"A Crown Law Officer may, without leave, file an indictment

(herein called an ex officio indictment) against any person

for any crime alleged to have been committed by such person,

although such person has not been committed for trial."

and was amended by the Criminal Code Act No.38 of 1963,

s.11, to become:

"421. Where an indictment is filed by a Crown Law Officer

against a person who has not been committed for trial for

the offence charged in the indictment, the Crown may ..."

76. It could not be said that Parliament was intending to use the word "offence" to describe anything other than a crime punishable on indictment.

77. The effect of the Criminal Code Act, s.4(3), was to apply the Code's definition of criminal responsibility to those crimes or offences which matched the corresponding crime which could only be dealt with by a jury in accordance with the provisions of the Code, i.e. to achieve conformity irrespective of the mode of trial. The provision imposed the same test of responsibility for offences which were to be tried by jury.

78. The Code did not, itself, purport to have application to any other category of prohibited conduct. It is only applicable by virtue of the Acts Interpretation Act, s.36, which requires an examination of the particular statute, and dependant on the analysis of its terms, decide whether its characterisation is of such a nature that it comes within a corresponding provision of the Code. The process is similar to that conducted by the Canadian courts in their treatment of the Interpretation Act 1970, s.27(2).

79. The Criminal Code Act, s.5(5), provides support for this interpretation since it limited the application of s.5 (provision for trial in cases involving unrepealed statutes) to offences which were intended "to be prosecuted upon information or indictment, and in respect of which no other mode of proceeding is provided by such Act or any other Act".

80. The Code, s.4(3), was considered in Woodruff v. Nolan (1934) Tas SR 127.

81. Although Crisp J posed the question as to whether the Code had indirectly repealed the Petty Offences Act, the real question was whether it was determinative of jurisdiction. He regarded the effect of the legal issue as "attenuat(ing) the jurisdiction of Justices of the Peace to an alarming degree", and stated, at p 129:

"Surely if Parliament had intended so great a charge, it

would have used language about which there could be no

doubt."

and having referred to s.4(3) continued, at p 130:

"So, in the forefront of the Code there is, in effect, a

declaration that summary proceedings taken according to

statute are not to be affected by the Code, for one cannot

deal with a statutory offence without first construing the

statute."

82. The Petty Offences Act contained only nine characterisations of offences but in the following year the Police Offences Act 1935 was passed which significantly increased the range of offences which were to be dealt with summarily. Of some significance is the definition contained in s.3(3) of that Act, which reads:

"The definitions set forth in the Criminal Code, so far as

the same are applicable and except where inconsistent with

this Act, shall be applied in the construction of this Act."

83. The effect of s.3 is simply to provide for a uniform definition of technical terms.

84. Crisp J did not need to have recourse to the Acts Interpretation Act 1931, s.36. That section states:

"36-(1) Where an act or omission constitutes a crime under

the provisions of any Act

('crime' shall mean an offence punishable upon indictment as

provided by the Criminal Code, and where in any Act any

offence is declared to be a felony or is made punishable

upon information, the same shall be deemed to be a crime;

s.46)

and the like act or omission constitutes an offence

punishable summarily under the provisions of some other Act,

the principles of criminal responsibility applicable in

relation to such crime shall be applied in relation to such

offence, and all terms and expressions used in relation to

such offence shall have the same meaning and construction as

when similarly used in relation to such crime.

(2) In any such case as aforesaid, the provisions of the

Criminal Code, so far as the same are applicable and to the

extent hereinbefore provided, shall be applied in relation

to any such offence."

- a requirement that the offence concerned contains "like"

ingredients;

- the same test of responsibility for only such offences;

- a process for the definition of terms used in the

description of such offences, i.e. the ingredients, e.g.

assault, stealing, etc.

86. Part IV of the Code was to have application only to those offences which met the above criteria.

87. The issue raised in Woodruff's case (supra) received no further attention for some years.

88. Knibbs v. Turner, an unreported decision of Crisp J No.4/1958, dealt with the question whether a defendant was entitled to have a plea of autrefois acquit upheld in a prosecution brought under the Racing and Gaming Act 1952. His Honour expressly did not take into account the Acts Interpretation Act 1931, s.32, since, as he said, it had not been raised by the appellant. His Honour, having quoted from a common law authority, stated, at p 3:

"As this passage perhaps indicates it may be a solecism to

refer to this defence in a summary Court as a plea of

autrefois convict or acquit, such being the technical names

of the written pleas found only in the Supreme Court in

proceedings on indictment..."

Crisp J did not seek to apply the Code.

89. Burbury CJ, in O'Rourke v. Boxall (1958) Tas SR 8 held that the Code applied to a complaint made under the Police Offences Act of "disturbing the peace by fighting". The defendant had contended that he was acting in self-defence. His Honour said, at p 12:

"Section 46 does not merely afford a defence to a charge of

assault, unlawful wounding, murder or some other crime

against the person under the Criminal Code itself. It is of

general application and makes lawful acts done in

self-defence falling within the terms of the section ...

That I think follows from the terms of s. 46 itself without

the necessity of invoking s. 36 of the Acts Interpretation

Act 1931 relied upon by counsel for the appellant."

90. The question was considered by the Full Court in Vallance v. The Queen (1960) Tas SR 51. Burbury CJ determined that because the word "offence" was defined in the Code, s.1, as meaning "any breach of the law for which a person may be punished summarily or otherwise" that the section was, prima facie, one of wide application extending to crimes and summary offences. Thus when s.12 "an act or omission which would constitute an offence if accompanied by a certain intention or state of mind" was considered, the combined effect would be for s.13 to be applicable to offences. However, s.1 also states "'criminally responsible' means 'liable to punishment as for an offence'; and the term, 'criminal responsibility' means 'liability to punishment as for an offence".

91. Crisp J adopted the approach that the Code was an Act to declare the criminal law and to criminal offences in general and stated, at p 81:

"... the draftsman here intended to deal with the subject of

criminal responsibility in its widest possible application,

i.e. both in relation to indictable crimes which are the

particular subject of the Code and to summary offences,

which are not. (Cf. s. 36 of the Queensland Criminal Code,

which is to the same effect)."

92. No disagreement could be made to that proposition but his Honour was not considering whether the Code applied to all offences. The question is which type of characterisation of offences are affected by the Code. Crisp J continued, at p 82:

"Therefore, from the terms of the Code itself, I would

conclude that its intention was to cover the field in

relation to the particular topic with which we are concerned

not only in regard to crimes or indictable offences but in

regard to summary offences as well - a fact which is not

sufficiently appreciated."

93. Crawford J, at p 114, commenced with the proposition that "Prima facie, therefore, s.13 does apply to summary offences", but then raised the question of how s.13 would apply in relation to a speeding case, and continued, at p 115: "The definition of criminally responsible and criminal responsibility are curious in so far as they refer to liability for punishment as for an offence and not to conviction for an offence ... proper interpretation of those phrases connotes 'liability to be convicted as for an offence'." and, at p 121, "As I have said prima facie by virtue of s. 1 'offence' includes a summary offence" yet as he pointed out no one had sought to apply s.13 in Brown v. Clark (1935) Tas LR 3 (a case concerning the unlawful branding of sheep).

94. His Honour referred to a decision of Morris CJ in Dowling v. Higgins (1944) Tas LR 32 where the Chief Justice applied the Code in the determination of the respective rights of a constable and defendant in a case involving an assault on a constable in the execution of his duty, and continued, at p 121:

"However, it is proper to have regard to the Criminal Code

in cases of assault (and in my opinion even if the offence

has engrafted onto it 'in the execution of his duty')

because assault is also a crime. See Acts Interpretation

Act 1931, s. 36..."

95. That approach corresponds with the proposition that it is only when the crime and offence have corresponding characteristics that the provisions of the Code relating to criminal responsibility apply. Crawford J continued, at p 122:

"But, with respect, if the Code does apply to simple

offences, the first consideration was whether s. 13 of the

Code was applicable. I have already held that in my view it

would not be, because a section such as s. 11 of the

Tuberculous Act 1949, provides for its own standard of

criminal responsibility, that is 'wilfulness' which in my

opinion provides for a specific intent..."

96. He went on to consider the case of R. v. Cripps (1958) Tas SR 24 in which Burbury CJ had considered the question of mens rea in relation to dangerous driving but did not advert to the Code. Crawford J continued, at p 123:

"With respect, I think that this was wrong because by s. 36

of the Acts Interpretation Act 1931 the Code applies to

offences which are also crimes and the approach should have

been through s. 13(1)."

and continued

"At least as far as reported and otherwise accessible

judgments are concerned no Tasmanian judge has adverted to

ss. 12 to 14 of the Code when dealing with criminal

responsibility for a simple offence (except one which is

also a crime) and this after a lapse of thirty-six years

since the Code became law. The reasoning in these cases (or

perhaps I should say the lack of reference to the Criminal

Code) may be compared with the reasoning of the Full Court

of Queensland in Brimblecombe v. Duncan, ex p Duncan (1958)

St R Qd 8... (but note s. 36 of their Code and compare

with s. 36 of our Acts Interpretation Act 1931)."

97. In discussing the application of s.36, his Honour stated, at p 125:

"Nevertheless, I think that the proper answer probably is

that it is a general section providing for the criminal

responsibility as a necessary element in offences which can

also be a crime, e.g. assault ..."

and continued, at p 127:

"... s.36 of the Acts Interpretation Act 1931 was not

designed to remove possible doubts as to whether summary

offences were within any of Ch. IV of the Code, because the

section would not have been restricted to offences which are

also crimes."

98. A further question was that if the Code applied generally then why was s.8 limited to "charges upon indictment".

99. In Snow v. The Queen (supra) at p 271, Burbury CJ and Cox J adopted the decision of Crisp J in Vallance.

100. Burbury CJ in Young v. Bryan (1962) Tas SR 323 discussed the application of ss.12 - 17 of the Code and stated, at p 325:

"Under s. 13 of the Code the prosecution upon each of these

charges must prove that the appellant intended to associate

with reputed thieves."

101. However, he did not expand upon the original proposition set out in Vallance.

102. The above cases do not affect the substance of the earlier interpretation suggested. Crisp J did not advance the proposition that the Code applied to summary offences generally and dealt only with examples where the characteristics were co-incidental. Burbury CJ did purport to apply the Code in general terms but in his decisions in O'Rourke v. Boxall (supra) and Young v. O'Brien (supra) could as easily have applied common law principles relating to self-defence and knowledge. Crawford J's reasoning required that the characteristics be co-incidental.

103. Even if my analysis of the judgment is erroneous, the amendment to s.4 by the 1963 legislation gives, in my opinion, the meaning to the section which I ascribe.

104. Section 4(3) was amended by Act No.38 of 1963 by the repeal of the old ss.(3) and the substitution therefor of:

"(3) Except as provided in section thirty-six of the Acts

Interpretation Act 1931, nothing contained in this Act or in

the Code shall be construed to affect the construction of

any statute, or of any provision thereof, creating an

offence punishable summarily or referring or relating to

summary proceedings."

105. In my opinion, the amendment confined any application of the Code to only those acts or omissions encompassed by s.36. It is of significance that the amending legislation (s.2(2)) stated that the above amendment "shall be deemed to have commenced on the 18th day of January 1932".

106. Irrespective of whether the approach taken by the majority in Vallance and Snow was correct, then as of the date of the amendment the interpretation I have sought to give to the provisions would apply.

107. Crawford J in Hesselman v. Reid (1974) Tas SR 1 held that s.9 of the Code (preservation of civil remedies) operated to prevent the application of s.18 of the Code to an issue raised in affiliation proceedings and added, at p 9:

"Moreover, I hold that, if I am wrong and s. 18(3) did apply

to affiliation proceedings, it nevertheless ceased to apply

to them on the passing of the Maintenance Act 1967. It is

in this respect that s. 4(3) of the Criminal Code Act 1924

may have some effect; but whether it does have effect or not

is, I think, irrelevant."

108. His Honour went on to hold that the effect of the Maintenance Act would have been to impliedly repeal s.18.

109. The Full Court, in determining the appeal in Reid v. Hesselman (1975) Tas SR 95, dealt with the issue on the basis of the application of s.9 of the Code and no reference was made to the question raised in Vallance (supra).

110. However, in a subsequent case of Onn v. Dakin Unreported No. 112/1965, Crawford J, referred to the Criminal Code Act 1963, and stated that the amendment to s.4:

"... may have the effect of no longer requiring a

consideration of the provisions of the Criminal Code

relating to criminal responsibility."

111. Cox J in Kringle v. Lowe No. 46/1986, in referring to a charge of "resisting a police officer in the execution of his duty", stated it to be "both an offence against the Act and at the same time a crime against the Criminal Code (s.114)" and consequently the charge was subject to the application of the Acts Interpretation Act, s.36, and Ch.IV of the Code. In relation to two other offences (drunk and disorderly and indecent language) he found them not "subject to the principles of criminal responsibility set out in Chap 4 of the Criminal Code". I would agree with his conclusion.

112. No Tasmanian Court has since the amendment to s.4 determined that Chap IV of the Code has application to summary offences in general. CONCLUSIONS

1. An offence under s.14B requires proof of the element that

the person charged knew that the premises entered belonged

to another.

2. Evidence of intoxication is relevant and admissible to

the determination of such intent at common law.

3. Evidence of intoxication is relevant and admissible at

common law to the determination of the question "without

lawful excuse".

4. The provisions of the Criminal Code only apply to those

breaches of the criminal law which are common to the

definition of "crime" and "offence", i.e. possessing the

same characteristics.

5. An offence contrary to s.14B is not subject to the

provisions of the Criminal Code.

113. The learned magistrate was obliged to receive and pay regard to evidence of intoxication.

114. The Motion to Review should be allowed and the conviction quashed.