Poole v Wah Min Chan [1947] HCA 37

Poole v Wah Min Chan [1947] HCA 37 - HCA 1947 case summary — Zoe

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a The Parliament intended scienter to be part and parcel of the offence. ' Sub-section (2) of s. 233 creates a substantive and separate offence e This view is assisted by sub-s. (3). Section 233 (1) (d) is not impin ; ged; the draftsman has provided a new offence. He got rid of tl word " unlawfully" and he got rid of the need for scienter as par of the Crown case, but he has left the escape for the defendant in- the words " without reasonable excuse." The onus is upon the prosecution of proving that the defendant was in fact in possession of goods which goods were in fact prohibited imports, or in lai prohibited imports, and that he knew that they were prohibit imports. Lyons v. Smart (1) decided that s. 233 meant that defendant had to have the goods in his possession knowing them | 0 be prohibited imports and that he must have partipatadal in tl importation in substance. The section as amended provides for the retention of all the words and that it was not necessary that 2 defendant should have been a participant in the importation of the prohibited goods. The amendment deals only with one of the two elements in Lyons y. Smart (1). Section 2338, inserted by the 1910 Act, is notable for the absence of the word " unlawfully " for the fact that it provides for a precise set of circumstances th would be covered by s. 233 (1) (d) if the word " unlawfully " does not involve scienter. There is some difference between s, 233 | (d) and s, 2338, Alternatively, on the footing that sub-s. (2) of s. 233 provides a full dictionary for the word " unlawfully " in 233 (1) (d), there is no difference. Hill v. Donohoe (2) is a preci and distinct decision that scienter is a necessary ingredient of offence, that guilty knowledge is an essential ingredient of offence. Reasonable excuse is not directed to the mental clement. Maher v. Musson (3) was decided, in one sense, on the narrow ground that the Court was justified in construing the statute there under consideration as involving mens rea. The statute was hi to be a revenue statute im stricto sensu and because of that one co be warranted in not requiring mens rea. The expression in sub-. (2) of s. 233 " without reasonable excuse" must mean " with reasonable excuse in relation to the Customs Act," that is to say there must be some Customs' excuse for the possession. There is _ nothing in the Act which makes want of knowledge a reasonabl Cosine excuse. ene BOC of the legislature is to make it

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_ "knowingly" was there held to be part of "unlawfully." The cases where mens rea is said not to be an essential ingredient of the offence are summarized in R. v. Turnbull (3). The fact that s. 2338 was inserted in the Act at the same time as s. 233 (1) was amende and that there was no repetition of the word " unlawfully _ 233n, is an additional aid to the view that there is some significance left in the word " unlawfully " beyond mere contravention of the Act. This is particularly so having regard to the fact that s. (1) (c) may cover some part of the same ground. If the words "without reasonable excuse" mean, as it is submitted they do, that knowledge is a necessary ingredient of the offence under s.

233n, then " without reasonable excuse" cannot be directed to knowledge. There is no room for that view of s. B. The Customs (Import Licensing) Regulations are ultra vires. Those regulations, which were promulgated after the decision in Radio Corporation Pty. Ltd. v. The Commonwealth (4) do not specify a list of prohibited goods but are in general terms. The regulations are repugnant to the Customs Act because they cover in part, and severally cover, classifications covered by the statute. Regulation ~ $ of those regulations covers all the goods specifically referred to in _ s, 52 of the Act and subjects them to licence. _In effect it provides that goods prohibited by s. 52 may be imported subject to a licence 'therefor being granted under the regulations. This effect is not cured by reg. 5 of the regulations. The whole of the law which ~ operates in the case of prohibited imports is to be found in the Customs Act. The reference to " any other law" in reg. 5 must refer to something outside s. 52, because s. 52 is the law on the subject (Baxter v. Ah Way (5)). The regulations are not in themselves ~ the law, they are simply part of s. 52. 'The effect of the regulations is to supersede all the classifications in s. 52 and supplant them
with a statement, " any goods except under licence." The regu- lations make goods which are absolutely prohibited in s. 52 impor-

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magistrate that the defendant gave an untrue account as to ho came to be possessed of the diamonds. The magistrate dismi: the information on the ground that the cases of Hill v. Donohoe and Lyons v. Smart (2) showed that it was a necessary element the offence charged that the defendant should know that diamonds found in his possession were prohibited imports. magistrate adds, in his statement of the grounds upon whic dismissed the information : - * That whilst from the untrue account and evasive answers given by the defendant when questioned to his possession it could be implied that his possession of th diamonds was unlawful, there was, in my opinion, no eviden which a knowledge could be imputed to the defendant as to specific character of the said goods that is that they were prohibit imports." The charge was laid under the Customs Act 1901-19 s. 233, which provides as follows : - '" (1) No person shall smuggle any goods; or (b) import any prohibited imports ; (c) export any prohibited exports; or (d) unlawfully convey have in his possession any smuggled goods or prohibited imy or prohibited exports. Penalty: One hundred pounds. ( shall not be lawful for any person to convey or have in his posse without reasonable excuse (proof whereof shall lie upon him) smuggled goods or prohibited imports. (3) It shall not be la for any person to convey or have in his possession any prohibit exports with intent to export them or knowing that they intended to be unlawfully exported." When Lyons v. Smart (2) was decided in 1908 s, 233 was im very different form. Section 233 of the Customs Act 1901 'then provided as follows : - * No person shall smuggle or unl y import, export, convey or have in his possession any goods. The Court held that the word " unlawfully " attached to the acts described in this provision. A provision, however, no person should unlawfully have in his possession any g construed according to the simple and natural meaning of the wi could not be supported as legislation with respect to customs. Court interpreted the section as not purporting to impose a pe on a person who is in possession of goods which had been unk; imported if that person was in no way connected with their in tation, although he knew that they had been so imported. Se 233 of the 1901 Act, however, was repealed by Act No. 36 of I! and the section as it now appears (amended by Act No. 12 of is in a very different form. 'The difficulties with which th dealt in Lyons vy. Smart (2) do not arise in connection with

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with the few simple and innocent-looking words of par. (7) of s. 52 the entire importing trade of the Commonwealth has been placed a under direct ministerial control without the intervention of the Parliament.

Our standpoint in matters of interpretation is doubtless affected by what we have grown accustomed to and after two wars, during which the, Executive Government necessarily took over a great part of the legislative function, we can hardly be expected to have " the same sensibilities as formerly in defining a power of subordinate legislation. But the provisions were passed in 1901 and, with the 'unimportant change of the word " proclamation " to " regulation " 'made to bring the instrument within the requirement that it should mi laid before the Houses of Parliament, and with an immaterial alteration in par. (a), they have remained in the same form. Can it really be supposed that in the first year of the Parliament, islation was consciously framed enabling the Executive Govern- ~ ment to forbid all importation except by licence from the Minister ? 'The licence indeed is only a qualification or condition ; to support 'it the power conferred by par. (y) must authorize the 'absolute _ suppression by the Executive of all importation into the Common- wealth, Imagine such a meaning being attached in 1901 to par. (9) ! Yet, however much we may have changed, the meaning of the "paragraph has not. The four judges who decided Bazter v. Ah Way (1) did not dream of it. Griffith C.J. treated the provision in s. 52 (y) as remitting to the Executive the duty of deciding a question fact, viz., "The expediency of admitting particular goods into e Commonwea'th at a particular time " and another question of fact, " Whether it is desirable or reasonable that goods in a certain condition should be excluded " (2). O°Connor J. spoke of the pro- vision as leaving " the filling up of the blank, and the naming of the article in each contingency that may happen in the future . . . to the absolute discretion. of the Governor-General in Council " (3). Isaacs J. said: - " The sub-section . . . empowers the overnor-General to prohibit goods by proclamation, and read with 56 enables him to do so subject to conditions or restrictions. But nothing more, The proclamation stands per se as a mere notification to the world that specified goods are prohibited. The nation is a mere fact" (4). In a rhetorical question Higgins J. shows his view of the para- "graph : - * Why should not a provision be valid to the effect that

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