P J v The Queen [2012] VSCA 146

55 For the offence to be committed, the Director submits, that destination must have the status (or legal character) of being part of Australia. The Director's case, however, is that the accused need not be shown to have known that the target destination had that character or status.[31] Indeed, as noted earlier, the corollary of the Director's argument is that it would not avail a defendant that he honestly believed that the destination had a quite different status, namely, that it was (or belonged to) another nation altogether, provided that the destination was in law part of Australia.

56 The Code contains a number of provisions in which it is an element of the offence that the object or target or victim of the offence have a particular legal status or character. It is instructive to observe the precision with which the legislature has addressed, provision by provision, the question whether proof of the relevant offence will require proof of the defendant's awareness that the target had that status or character. As will appear, in very many instances - including in the people smuggling offences - express provision is made that no such proof is required.

57 For example, Division 71 of the Code is headed 'Offences against United Nations and associated personnel'. Section 71.2(1) makes it an offence to cause the death of another person who:

• is 'a UN or associated person'; and
• is 'engaged in a UN operation that is not a UN enforcement action'.

Under s 71.2, strict liability applies to both those aspects of the victim's status. In other words, the prosecution need not establish that the accused had any awareness that the victim had that status.

58 A cognate example is provided by s 132.4(6) of the Code, which makes it an offence to enter, as a trespasser, a building which is 'owned or occupied by a Commonwealth entity', with intent to commit an offence. Under s 132.4(8), absolute liability applies to 'the paragraph (6)(c) element of the offence', that is, the circumstance that the building is owned or occupied by a Commonwealth entity. It is sufficient that the accused enters a building which is in fact a building of that character. He need not be shown to have had any awareness that it had that character. [32]

59 In some instances, the element in question is purely a matter of law. For example, s 132.4(3) makes it an offence for a person to enter a building, as a trespasser, with intent to commit an offence in the building that involves causing harm to another person or damage to property, being 'an offence against a law of the Commonwealth'. Section 132.4(3A) expressly provides that it is not necessary to prove that the defendant knew that the offence was an offence against the law of the Commonwealth.

60 Again, s 302.2 makes it an offence to traffick in a quantity of a controlled drug which is a commercial quantity. Under s 302.2(3) absolute liability applies to the element of the offence (the circumstance) that the quantity trafficked is a commercial quantity. It is, of course, a question of law whether a particular quantity of a particular controlled drug is or is not a commercial quantity of that drug. Section 314.1 of the Code specifies the relevant quantities for 15 different controlled drugs.

The paragraph (a) element - legal status of intended destination

61 These examples demonstrate very clearly, in our view, that where the legal status of the target or victim of the prohibited conduct (or the legal character of the conduct) is an element of a Commonwealth offence, the legislature is able to, and routinely does, make express provision relieving the prosecution of any obligation to establish any awareness on the part of the accused that the target or victim had that status or that the conduct had that character.

62 Importantly, s 233C contains one - but only one - such relieving provision. As discussed earlier, the paragraph (b) element requires that the relevant passengers have the legal status of being non-citizens. Section 233C(2) expressly relieves the prosecution of the obligation to show that the accused knew or believed that the passengers had that status.

63 No such provision was made with respect to the paragraph (a) element. The effect of the submission for the Director, however, is that that element should be read as if a similar relieving provision had been included in relation to the legal status of the destination. That is, paragraph (a) should be understood as requiring proof of intentional engagement in the purposive conduct of conveying the passengers to a particular destination, but no proof of awareness on the part of the offender that the target of the purposive conduct - the destination - had the legal status of being part of Australia.

64 Had it been Parliament's intention to relieve the prosecution of that obligation, we have little doubt that provision could, and would, have been made to that effect. A similar conclusion was reached, in the context of a different Commonwealth offence, by the New South Wales Court of Criminal Appeal ('NSWCCA') in R v J S.[33]

65 The offence in question in J S was that created by s 39 of the Crimes Act 1914 (Cth), which provided:

Any person who, knowing that any book, document or other thing of any kind, is or may be required in evidence in a judicial proceeding, intentionally destroys it or renders it illegible ... with intent thereby to prevent it from being used in evidence, shall be guilty of an offence.

At issue was the proper construction, in accordance with the Code, of the phrase 'knowing that [the item] is or may be required in evidence in a judicial proceeding.'

66 The phrase 'judicial proceeding' was defined to mean a federal proceeding, that is, a proceeding before a federal court or a court exercising federal jurisdiction or a court of a Territory. The NSWCCA (Spigelman CJ, with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed) held that

the physical element of 'a judicial proceeding', and the particular character of such proceeding as a federal proceeding, constitute a 'circumstance in which conduct' ie the alleged involvement in the destruction of information, occurred.[34]

67 The question, therefore, was whether the fault element of knowledge applied to 'the characterisation of the proceedings as "federal"'.[35] The Court concluded that it did. Spigelman CJ pointed out that it had been open to the legislature to provide that there was no fault element in relation to that physical element, but that had not been done. His Honour continued:

Furthermore, a similar result could have been achieved by providing in the offence, again expressly, that the offence was one of absolute liability, at least with respect to the particular physical element of the offence constituted by the federal character of the requisite proceedings, for which express provision is made in clause 6.2(2) of the Criminal Code. Again, no such provision was made.[36]

68 His Honour drew attention, by way of contrast, to the legislative treatment of the Crimes Act 1914 offence of conspiracy to pervert the course of justice.[37] Until its amendment in 2001, that offence had been expressed in the following terms:

42(1). Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence.

The amendment in 2001 added the following subsection:

42(2). For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.

The amendment made it clear, Spigelman CJ said, that the drafter

had carefully considered the interconnection between the physical element constituted by the 'circumstance' of 'judicial power' and the fault element to be attached to that particular physical element.[38]

69 In the case of both the s 39 offence and the s 42 offence, it was an element of the offence that the object or target of the prohibited conduct have a particular legal status or character. In the case of the s 39 offence, it was that the proceeding (in which the intentionally-destroyed item might have been required as evidence) have the status or character of being a federal proceeding. In the case of the s 42 offence, it was that the 'course of justice' (which the alleged conspirator(s) had agreed to obstruct or pervert) have the status or character of being the course of justice in relation to 'the judicial power of the Commonwealth'.

70 That the element in question concerned legal status or character did not preclude the 'attachment' to it of a fault element. As Spigelman CJ said:

No provision of the Code states that a physical element which is a question of law for the judge cannot have attached to it a fault element which the jury must decide. The Code makes no direct distinction between questions of law and questions of fact. It does, however, make express provision for decoupling a specific physical element, relevantly a question of law, from any fault element. This can be done by either providing that no fault element applies to that physical element (under s 3.1(2)) or by specifying that strict or absolute liability applies to the offence (under s 6.1 or s 6.2). Neither was done here.[39]

71 So too in the present case. The paragraph (a) element of the offence is only made out if the targeted destination has the legal status or character of being part of Australia. If Parliament had intended to exclude the need to prove the defendant's awareness of the legal status of the destination, this could - and surely would - have been done.[40]

72 The Director submits, however, that the decision in J S is of no assistance in resolving the present question. According to the written submission:

The offence in question in that case contained a physical element of 'circumstance' (the existence of a federal judicial proceeding) with a corresponding fault element of 'knowledge'. It was that combination of elements that meant that the prosecution could not succeed without proving knowledge of a matter of law. There is no equivalent combination of elements in s 233C.

73 The Director is, of course, correct that the structure of s 39 of the Crimes Act 1914, as considered in J S, is different from the structure of s 233C of the Act. The physical element of the s 39 offence in relation to which the accused's knowledge had to be established was 'a circumstance', within the meaning of s 4.1(1)(c) of the Code. As Spigelman CJ said:

In the present case the characterisation of the proceedings as 'federal' must be accepted to be either a component part of the single circumstance of judicial proceeding or a separate circumstance. In either event, the issue has to be determined as to whether or not the fault element of knowledge expressed in s 39 applies to that circumstance.[41]

In the present provision, by contrast, the characterisation of the destination as 'Australia' is to be found in a single physical element, being conduct, to which the fault element of intention applies.

74 It follows, so the Director submits, that - in contrast to J S - the characterisation of the destination as Australia cannot be a 'circumstance'. Otherwise the paragraph (a) element would have to be interpreted as including both a physical element of conduct and a physical element of circumstance. This would mean that - by virtue of s 5.6 of the Code - different fault elements would be applicable to the component parts of paragraph (a). The fault element for the conduct would be intention; and the fault element for the circumstance would be recklessness. It was submitted that the Court should reject such an interpretation, as it would 'significantly complicate' the jury's task. It was also said that the drafting convention (that there be only one physical element in each paragraph) counted against such an interpretation. (As will appear, the Director unsuccessfully advanced a very similar interpretation, of a different Commonwealth provision, in R v Saengsai-Or.[42])

75 The significance of the decision in J S lies not in what was said about the particular provision there under consideration. Rather, its significance lies in the statements of principle about the attachment of a fault element to a matter of legal status or character. On the authority of J S, it is no answer for the Director to assert that the status of the destination as Australia is a question of law. That it has that status is an ingredient of the paragraph (a) element, to which the fault element of intention applies.

76 What must be established is an intention 'to do the whole act that is prohibited'.[43] That means, in our view, that the defendant must be proved to have been aware that what he was organising or facilitating was a conveyance of the relevant persons to, or their (proposed) entry into, Australia.

77 In He Kaw Teh v The Queen,[44] the High Court adopted as a correct statement of the law on mens rea what had been said 50 years earlier by Jordan CJ in R v Turnbull,[45] as follows:

[I]t is also necessary at common law for the prosecution to prove that [the accused] 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. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged.[46]

78 Much more recently, in Ansari v The Queen[47] the plurality judgment said in relation to Code offences:

Proof of intention to commit an offence requires proof of the accused's knowledge of, or belief in, the facts that make the proposed conduct an offence. Fault elements are specified with respect to physical elements of an offence. They are defined in Div 5 of Pt 2.2 in a descending order of culpability: intention, knowledge, recklessness and negligence. The most blameworthy fault element is intention and the least blameworthy is negligence.

79 The fault element of intention was addressed by the NSWCCA in Saengsai.[48] The Court was there concerned with the following provision of the Customs Act 1901 (Cth):

233B Special provisions with respect to narcotic goods

(1) Any person who:

...

(b) imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies;

...

shall be guilty of an offence.

80 The submission for the Commonwealth Director in that case was that

the correct way to analyse the offence created by s 233B(1)(b) in conformity with the provisions of the Criminal Code (Cth) is that it has a physical element of conduct (the act of importing a thing into Australia); and a physical element of circumstance in which the conduct occurs (that the thing imported is a prohibited import to which s 233B(1) applies). The fault element that applies by operation of s 5.6 is intention for the physical element of conduct and recklessness for the physical element of circumstance in which the conduct occurs.[49]

81 The Court (Bell J, with whom Wood CJ at CL and Simpson J agreed) rejected this submission, holding that

the physical element of the offence created by s 233B(1)(b) is one of conduct: the act of importing into Australia any prohibited import to which the section applies. In respect of this physical element, which consists only of conduct, the provisions of s 5.6(1) of the Criminal Code (Cth) apply. Intention is the fault element.[50]

82 In Bell J's view, the Code 'reflects aspects of the analysis of criminal responsibility under the common law found in the judgment of Brennan J in He Kaw Teh.'[51] In that case, as her Honour noted, Brennan J had considered and rejected the contention that 'the act' in importing prohibited imports into Australia (to which s 233B(1)(b) applied) was the act of importing the container or thing alone. Bell J quoted[52] the following passage from the judgment of Brennan J:

Importing simpliciter is not an act nor is it defined to be a prohibited act in par (b). Importing narcotic goods is an act; it is the act referred to in par (b). The character of the act involved in the offence depends on the nature of the object imported. The paragraph thus impliedly requires an intent to do the prohibited act - importing narcotic goods - and thus requires knowledge of the nature of the object imported. It is impossible to divide the act involved in an offence under par (b) into an act and circumstances attendant on its occurrence. The external elements of an offence under par (b), unlike the offence considered in Reynhoudt ((1962) [1962] HCA 23; 107 CLR 381) cannot be divided. An intention 'to do the whole act that is prohibited' - the view of Dixon CJ in Reynhoudt (at p 387) - is, in my opinion, the only view which the language of par (b) permits. The 'prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it' lead to the conclusion that the state of mind required with reference to the object imported is knowledge that it is narcotic goods. If there were no mental element required with reference to the object imported but merely an intent to perform the physical movements involved in importation, many innocent persons could not escape conviction.[53]

83 Her Honour referred also to Kural v The Queen,[54] where the High Court again considered the mental element with respect to the drug importation offence. As Bell J noted, the joint judgment of Mason CJ, Deane and Dawson JJ in Kural explained that actual knowledge was not required to establish the relevant mens rea but that knowledge or belief were relevant to proof of intention. Her Honour cited[55] the following passage from the joint judgment:

So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug.[56]

The distinction between proof that an accused person intended to import narcotic goods and proof that he or she was reckless as to the circumstance that the thing imported contained narcotic goods is to my mind a real one. The joint judgment in Kural contains discussion of how the Crown might prove the existence of the intention to import the prohibited imports by a process of inferential reasoning. The inquiry remains one of proof of intention.[57]

85 So too in the present case. The 'inquiry' in relation to the paragraph (a) element remains one of proof of intention. Intention is the most blameworthy of the fault elements[58] and, as Bell J said, no lesser proof will suffice. This means, in our view, that it must be shown not only that the accused intended to organise or facilitate a conveyance of the relevant persons, but that he intended that they be taken to Australia. As in Saengsai, so in the present case, Parliament intended that the fault element of intention apply to the entirety of the conduct in paragraph (a). As the Director accepts, it is part of the 'conduct' that the destination had the status of being part of Australia. The fault element of intention must therefore apply to that matter of legal status, no provision to the contrary having been made.

86 On this application, as in J S, the Director relied on s 9.3(1) of the Code, which provides:

A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorance of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence.

Here, as in J S, that reliance is misplaced. As Spigelman CJ explained, 'knowledge that a matter has a legal character is not equivalent to knowledge of the law.'[59]

87 We referred earlier to the applicant's alternative (non-preferred) argument, namely, that paragraph (a) should be interpreted as comprising a physical element of conduct and a physical element of 'result of conduct'.[60] As noted, this interpretation would have the consequence that paragraph (a) had two different fault elements, namely, intention for the conduct element and recklessness for the result element.

88 If, contrary to our view, this is how paragraph (a) is to be interpreted, our conclusion would be unchanged. Proof of the paragraph (a) element would still require proof of the accused's awareness (to the level required by the fault element of recklessness) of the legal status of the destination.

89 As noted earlier, the Director relied on the High Court decision in Wei Tang. The foregoing analysis enables us to explain the basis on which that decision is to be distinguished, as follows. In relation to the offence of 'possessing a slave', the victim of the offence did not have the status or character of being a 'slave' independently of the conduct alleged to have been engaged in by the accused. As appears from the passage from the judgment of Gleeson CJ set out earlier,[61] it was the intentional engagement of the accused in conduct of a particular character which constituted the victim a 'slave'. The victim could not, of course, have had that status independently of the accused's conduct because, as the judgments pointed out, Australian law recognises no such status. No question, therefore, arose of any necessity to prove that the accused was aware that the target of her conduct had any particular legal status.

90 We should add, for completeness, that the applicant's submissions initially placed reliance on the decision of the Western Australian Court of Appeal in Bahar v The Queen.[62] It was subsequently conceded - correctly, in our view - that the question which arises on the present application did not fall for decision in that case. Quite different issues were there under consideration.

[1] Section 233C was introduced into the Migration Act by the Anti-People Smuggling and Other Measures Act 2010.

[3] See R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332, 333 [4]-[5] ('Wei Tang').

[4] Migration Act 1958 (Cth) s 4A.

[5] Attorney General's Department (Cth), A Guide to Framing Infringement Commonwealth Offences, Infringement Notice and Enforcement Powers (September 2011).

[10] Code s 4.1(1)(c).

[11] Code s 6.2(2).

[12] Migration Act 1958 (Cth) s 5.

[13] Code s 4.1(1)(c).

[14] Code ss 6.1, 6.2.

[15] Code s 5.4(1).

[17] Code s 5.6(2).

[19] A usage of 'Australia' recognised by Acts Interpretation Act 1901 (Cth) s 2B.

[21] [2008] HCA 39; (2008) 237 CLR 1.

[24] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69] ('Project Blue Sky').

[25] D C Pearce, R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [4.7].

[26] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 264-5 [31]-[32]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].

[27] Which means 'arrange personally; take responsibility for providing (something)': New Shorter Oxford Dictionary (Oxford University Press, 1993) 2020.

[28] Which means 'make easy or easier; promote; help forward (an action result etc)': New Shorter Oxford Dictionary (Oxford University Press, 1993) 903.

[29] The same phrase appears in the people smuggling offence itself: s 233A(1)(a). One of the alternative forms of aggravated people smuggling is committed when the smuggler 'intends that the victim will be exploited after entry into Australia': s 233B(1)(a).

[30] Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355, 381 [69].

[31] Counsel for the Director submitted that the existence of such knowledge would be sufficient, but was not necessary, to establish the paragraph (a) element.

[32] There are, to similar effect, multiple instances of dishonesty offences under the Code, all defined by reference to property which 'belongs to a Commonwealth entity'. In every instance, the offence provision makes it unnecessary to prove that the defendant knew that the property belonged to a Commonwealth entity: see ss 132.1(2A), 132.2(3), 132.3(2A). In s 131.1(3), that element is made a matter of absolute liability.

[33] [2007] NSWCCA 272; (2007) 175 A Crim R 108 ('J S').

[34] Ibid 133 [125] (emphasis added).

[36] Ibid 133 [131] (emphasis added).

[39] J S [2007] NSWCCA 272; (2007) 175 A Crim R 108, 137 [152].

[40] We refer, for example, to s 91.1(3) of the Code. Under that section, it is an offence to make, obtain or copy a record (in any form) of information concerning the Commonwealth's security or defence, and to do so 'intending that the record will, or may, be delivered to another country or a foreign organisation ...' It is expressly provided by s 91.1(5) that 'the person concerned does not need to have a particular country ... in mind at the time when the person makes, obtains or copies the record'.

[41] J S [2007] NSWCCA 272; (2007) 175 A Crim R 108, 133 [128].

[42] [2004] NSWCCA 108; (2004) 61 NSWLR 135 ('Saengsai'). See [80] below.

[43] He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 584 ('He Kaw Teh'): see [82] below.

[44] Ibid 531 (Gibbs CJ), 572 (Brennan J).

[45] (1943) 44 SR (NSW) 108, 109.

[47] [2010] HCA 18; (2010) 241 CLR 299, 318 [59] (Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ) (footnotes omitted).

[48] [2004] NSWCCA 108; (2004) 61 NSWLR 135.

[51] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 ('He Kaw Teh').

[52] Saengsai [2004] NSWCCA 108; (2004) 61 NSWLR 135, 145 [59].

[53] [1985] HCA 43; (1985) 157 CLR 523, 584 (emphasis added).

[54] [1987] HCA 16; (1987) 162 CLR 502.

[55] Saengsai [2004] NSWCCA 108; (2004) 61 NSWLR 135, 147 [67].

[56] Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 505.

[57] Saengsai [2004] NSWCCA 108; (2004) 61 NSWLR 135, 147 [69] (emphasis added).

[58] Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299, 318 [59].

[59] [2007] NSWCCA 272; (2007) 175 A Crim R 108, 137 [154].

[61] See [30] above.

[62] [2011] WASCA 249; (2011) 255 FLR 80.