R v Clare [1993] QCA 558

The sole ground of appeal advanced in relation to the appellant's conviction asserts that the trial judge misdirected the jury. It is convenient to quote one passage from the summing-up which adequately encapsulates the effect of his Honour's directions to the jury of which complaint is made:

"The charge is that he had possession of a dangerous drug as distinct from some white powder substance. So, the accused must be shown to have known that it contained a dangerous drug or he knew it was likely to have contained a dangerous drug and that he was, as it is sometimes put, wilfully blind. He shut his eyes to the probability that it contained a dangerous drug. If an accused person had reason to suspect that the substance was a dangerous drug, then he could not shut his eyes to that fact and refrain from taking proper steps to ascertain the true identity of the substance."

Three different hypotheses are put forward in this passage as indicative of guilt: (i) that the appellant knew that the white powder contained a dangerous drug, (ii) that he knew that the white powder was likely to contain a dangerous drug and was "wilfully blind", i.e. shut his eyes and refrained from taking steps to ascertain the true position, and (iii) that he had reason to suspect that the white powder contained a dangerous drug and was "wilfully blind".

Section 9 of the Drugs Misuse Act 1986 makes it a crime to unlawfully have "possession of a dangerous drug". By section 4 of the Act, "unlawfully" means "without authorisation, justification or excuse by law". Section 57 of the Act contains evidentiary provisions. Sub-sections (c) and (d) provide:

"(c) proof that a dangerous drug was at the material time in or on a place of which [the person charged with having committed an offence] was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in his possession unless he shows that he then neither knew nor had reason to suspect that the drug was in or on that place;

(d) the operation of section 24 of the Criminal Code is excluded unless that person shows his honest and reasonable belief in the existence of any state of things material to the charge;"

Section 24 of the Criminal Code, which is referred to in sub-section 57(d) of the Drugs Misuse Act, provides:

"24. Mistake of fact. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

It is desirable also to set out section 23 of the Code which provides:

"23. Intention: Motive. Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention,is immaterial so far as regards criminal responsibility."

Shortly stated, sub-section 57(d) of the Act places an onus upon the accused person. In this case, the appellant failed to discharge that onus. The jury must not have been satisfied on the balance of probabilities that the appellant honestly and reasonably, but mistakenly, believed that the white powder contained a perfume base. It was nonetheless open to it to have a reasonable doubt as to the appellant's guilt and, more particularly, to have a reasonable doubt as to whether the white powder (or the heroin which it contained) was in the appellant's "possession". Sub-section 57(c) of the Act was not available to the prosecution, and the potential relevance for present purposes of that provision or sub-section 57(d) is limited to any assistance which either provides concerning the statutory meaning of "possession". The foundation of the appellant's case is the proposition that "possession" for the purpose of s. 9 required actual knowledge that the substance which he had was or contained a dangerous drug, and that the other two hypotheses put to the jury were insufficient for guilt.

With one exception, which it is convenient to pass over initially, the decisions relied on by the appellant are principally concerned with offences for which mens rea is necessary. More specifically, the three most important cases, He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523, Bahri Kural v. R. [1987] HCA 16; (1987) 162 CLR 502 and Pereira v. R. (1988) 63 ALJR 1, involve offences against sub-section 233B(1) of the Customs Act 1901 (Cth).

So far as presently material, that sub-section provides:

(b) imports ... into Australia any prohibited imports to which this section applies ...; or (c) without reasonable excuse (proof whereof shall lie upon him) has in his possession ... any prohibited imports to which this section applies which have been imported into Australian in contravention of this Act; or (d) ...is in any way knowingly concerned in ... the importation ... into Australia of any prohibited imports to which this section applies ... shall be guilty of an offence."

"On the prosecution of a person for an offence against the last preceding subsection, being an offence to which paragraph (c) of that subsection applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession ... had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession ... had been imported into Australia in contravention of this Act."

He Kaw Teh was convicted of offences against each of paras. (b) and (c) of sub-section 233B(1) of the Customs Act. His appeal to the Victorian Full Court was dismissed, but the High Court allowed an appeal and remitted the matter to the Victorian Full Court to be decided in accordance with the High Court's judgment.

At pp. 528-529, Gibbs CJ, with whom Mason J. agreed, said:

"The argument presented on behalf of the applicant raised some fundamental questions of the law relating to criminal responsibility. It was submitted that the learned trial judge erred in directing the jury that the prosecution had no need to prove that a person charged under s. 233B(1) acted with guilty knowledge - in particular with knowledge that the baggage he brought into the country contained narcotic goods. Section 233B(1)(b) does not expressly make knowledge an element of the offence. To "import" simply means to bring into the Commonwealth from abroad: see Lyons v. Smart (1908) C.L.R. 143, at p. 150; Reg. v. Bull [1974] HCA 23; (1974) 131 C.L.R. 203, at p. 254. The word "import" does not carry its own connotation of knowledge or intention. If one in fact brings goods into Australia from abroad one imports them, whatever one's intention may be and whether or not one knows their nature or quality. Paragraph (b) does not contain any words - such as "knowingly" - which themselves might reveal that the Parliament intended to make the importation of narcotics an offence only if it was intentionally or knowingly carried out; in that respect it differs from para. (d) of s. 233B(1), which makes it an offence to be "knowingly concerned" in the importation of prohibited imports that are narcotic goods.

However the provision has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v. De Rutzen [1895] 1 Q.B. 918, at p. 921, as follows:

'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.'

There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v. Dayman [1941] HCA 28; (1941) 67 C.L.R. 536, at p. 540; Bergin v. Stack [1953] HCA 53; (1953) 88 C.L.R. 248, at p. 261. However, the principle stated in Sherras v. De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v. The Queen [1963] A.C. 160, at p. 173; Reg. v. Warner [1969] 2 A.C. 256, at p. 272 and Gammon Ltd. v. Attorney-General (Hong Kong) [1984] UKPC 17; [1985] A.C. 1, at pp. 12-13 and in this Court: Cameron v. Holt [1980] HCA 5; (1980) 142 C.L.R. 342, at pp. 346, 348. The rule is not always easy to apply. Its application presents two difficulties - first, in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression."

At pp. 530-531, his Honour described the expression "mens rea" as "ambiguous and imprecise" and stated that "there is no single mental element that is common to all offences".

"... The critical question is whether it is enough that the offender intended to import a bag or parcel, even though he did not know what it contained, or whether knowledge of the nature, and possibly of the quality, of the prohibited thing imported is an element of the offence. Since, as I have indicated, I find it impossible to suppose that the Parliament intended to make the offence one of absolute liability, the only alternative to a requirement of guilty knowledge (by which I include wilful blindness) is that no mental state is an ingredient of the offence, but that an accused is entitled to be acquitted if he honestly and reasonably believed that he was not carrying narcotic goods." (Emphasis added)

This was further discussed at p. 533 to 536. At p. 533, his Honour said:

"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent. However there are a number of questions which have not been clearly answered."

"I have already shown that the offence created by s. 223B(1)(b) is treated by the Parliament in some circumstances as being one of the most serious in the criminal calendar. It seems improbable that the Parliament would have intended that it might be committed as a result of mere carelessness, although that would be the case if guilty knowledge was not an element, and an unreasonable although honest mistake would not be sufficient to exculpate the accused. It is true that the penalty of life imprisonment provided by the statute is a maximum one and that a judge who considered that the accused had brought in narcotic goods in the honest but unreasonable belief that his luggage did not contain them would sentence accordingly. Nevertheless, to provide that a sentence of life imprisonment might be imposed for an offence committed merely through negligence would appear to be exceedingly severe. The gravity of the offence suggests that guilty knowledge was intended to be an element of it.

Moreover, it is by no means clear that the creation of liability for negligence would give added efficacy to the prohibition of the importation of narcotics. On any view of the effect of the section, if the suspicions of an incoming traveller are aroused, and he deliberately refrains from making any inquiries for fear that he may learn the truth, his wilful blindness may be treated as equivalent to knowledge. If he is given a bag or parcel to carry into Australia in suspicious circumstances, or if there is something suspicious about the appearance, feel or weight of his own baggage, and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge. If he is innocent of complicity in any attempt to import narcotics, and there is nothing to arouse his suspicions, it is difficult to see what action he could be reasonably expected to take to prevent a stranger from secreting narcotics in his baggage. It would have little point to make negligence a ground of liability." (Emphasis added)

After an extensive analysis of the material provisions of the Customs Act and reference to authority, his Honour said at p. 537:

"I accordingly conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s. 233B(1)(b) of the Customs Act and that the prosecution on a charge under that provision bears the onus of proving that the accused knew that he was importing a narcotic substance."

It is not clear that his Honour would have concluded that the prosecution had to prove knowledge to establish an offence against sub-section 233B(1)(b) of the Customs Act if the legislation had contained a provision like s. 24 of the Criminal Code or sub-section 57(d) of the Drugs Misuse Act. However, it is unnecessary to pursue that in this case.

His Honour next turned at pp. 537-538 to sub-section 233B(1)(c) of the Customs Act and said:

"The next question that falls for consideration is whether on a charge under s. 233B(1)(c) the prosecution bears the onus of proving that the accused knew that he had the narcotic goods in his possession. The question bears a different aspect from that which arises in relation to s. 233B(1)(b). The words used in s. 233B(1)(c) - "has in his possession" - in their ordinary sense connote a state of mind, in particular some awareness of the existence of the thing that was in fact in the possessor's physical control. In Director of Public Prosecutions v. Brooks [1974] A.C. 862, at p. 866, Lord Diplock said:

"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control."

In Reg. v. Boyesen [1982] A.C. 768, at pp. 773-774, Lord Scarman said:

"Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it."

In Williams v. The Queen [1978] HCA 49; (1978) 140 C.L.R. 591, at p. 610, Aickin J. said:

"It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances."

See also Reg. v. Woodrow [1846] EngR 620; (1846) 15 M. & W. 404, at pp. 415, 418 [1846] EngR 620; [153 E.R. 907, at pp. 912, 913]; Reg. v. Warner [1969] 2 A.C., at pp. 282, 307, 308, 310-311. I may digress by saying that we are not concerned in the present case with the situation in which the accused knows that he has the thing in his custody but says that he does not know its nature - e.g., if he says that he thought heroin was baking soda - or its qualities - e.g., if he knew that he had in his possession a drug, but did not know which drug."

"The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence ("in his possession") themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required. The question then is whether the words of the Customs Act contain a sufficient indication that the Parliament intended that knowledge should not be an ingredient of an offence against s. 233B(1)(c), notwithstanding the prima facie effect of the words "in his possession". The provisions which might be thought to give such an indication are those of the clause "without reasonable excuse (proof whereof shall lie upon him)" and those of sub-s. (1A)."

"... critical question ... is whether the words of s. 233B(1)(c) make knowledge an element of the crime - a question 'entirely different' from whether there is an absence of mens rea when the knowledge is not made an element by the words of the statute themselves: ... In answering this question it must be remembered that it has two aspects: first, what the word 'possession' ordinarily connotes and secondly, whether there is anything in the statute, or its history, which shows that some other meaning is to be given to the word where it appears in s. 233B(1)(c). For the reasons I have already given 'possession' connotes knowledge of the existence of the thing possessed. Further, neither the provisions of par. (c) of s. 233B(1) nor those of sub-s. (1A) contain any indication either that 'possession' is to be given any other than its ordinary meaning or that the onus of proving an element which that meaning necessarily embraces should be cast upon the accused."

Finally, so far as presently material, Gibbs CJ said at p. 545:

"For the reasons I have given I hold that in a proceeding under par. (b) or par. (c) of s. 233B(1) the prosecution bears the onus of proving that the accused knew of the existence of the goods which he brought into Australia, or which were in a suitcase or other container over which he had exclusive physical control, as the case may be. The proper direction of the first charge was that the prosecution had to prove that the applicant brought the suitcase into Australia, knowing that the heroin was in the case. On the second charge the jury should have been told that they could not find that the applicant had the heroin in his possession, unless they were satisfied that he knew that it was in the suitcase. Whether a direction concerning wilful blindness was also necessary depends on the facts, which were not fully before us."

Wilson J. dissented in He Kaw Teh, but Brennan and Dawson JJ. delivered judgments agreeing with the orders proposed by the Chief Justice.

"The general principles which I would apply to the interpretation of s. 233B(1)(b) and (c) may now be summarized:

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."

"Section 233B(1) is clearly a provision in which some form of mens rea is implied. It is necessary therefore to identify the acts respectively involved in the offences defined in pars. (b) and (c) and to ascertain the form of mens rea applicable to them and to the accompanying circumstances (if any) which are prescribed by those paragraphs."

After considering the offence provided for by sub-section 233B(1)(b), his Honour continued at p. 585:

"The offence created and defined in par. (c) can be distinguished from the offence of importing in three significant respects. First, "possession" is a term which implies a state of mind with respect to the thing possessed whereas importing does not. Secondly, the thing possessed must be not only narcotic goods but narcotic goods "which have been imported into Australia in contravention of this Act", an element which is arguably a mere circumstance attendant on possession of narcotic goods. Thirdly, a person who would otherwise be criminally liable for an offence under par. (c) is entitled, on proof by him that he had a reasonable excuse, to be acquitted. These three features warrant separate consideration."

At p. 586, his Honour quoted with approval the statement by Aickin J. in Williams v. R. [1978] HCA 49; (1978) 140 CLR 591 at 610 set out above, and at p. 589, speaking of the offence under sub-section 233B(1)(c), he said:

"More to the point, the requirement of knowledge of the character of the object possessed flows not from a presumption that mens rea is implied in par. (c), but from the inherent requirement in "possession" of knowledge of what is possessed. The exempting phrase does not exclude the ordinary connotation of the term "possession".

I would therefore hold that Bush [1975] 1 N.S.W.L.R. 298; (1975) 5 A.L.R. 387 was wrongly decided. On a count of possession under par. (c) the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt. Again, dependent on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence."

"The other count of which the accused was convicted was that of having in his possession, without reasonable excuse, narcotic goods imported into Australia in contravention of the Customs Act. That offence is created by par. (c) of s. 233B(1). As I have said, the paragraph places the onus of proving reasonable excuse upon the accused. The defence of reasonable excuse is, as pointed out earlier, wider than that of honest and reasonable mistake. It must, however, include honest and reasonable mistake, for in my view it is not possible to envisage an honest and reasonable mistake of the relevant kind which would not at the same time constitute a reasonable excuse for the possession of narcotic goods. The effect of this is to extinguish honest and reasonable mistake as a separate defence and, if it is relied upon as constituting a reasonable excuse within the meaning of the paragraph, to place the onus of proof upon the balance of probabilities upon the accused. Another aspect of the mental element which might otherwise be required by par. (c) is also dealt with by the statute. Section 233B(1A) provides that in any prosecution under par. (c), it is not necessary for the prosecution to prove that the accused knew that the relevant goods had been imported into Australia in contravention of the Act but that it is a defence if he proves that he did not know that the goods had been imported into Australia in contravention of the Act.

In these two respects the legislature has made express provision for the mens rea which is required to accompany the offence of possession of narcotic goods created by par. (c) and it is fair, I think, to draw the inference that it has not sought otherwise to limit the burden upon the prosecution or to impose any additional burden upon the accused. In particular, the paragraph requires proof of possession and there can be no doubt that the onus of proving possession rests upon the prosecution.

As with importation, possession is a concept which contains within it a mental element. As Aickin J. observed in Williams v. The Queen [1978] HCA 49; (1978) 140 C.L.R. 591, at p. 610:

"It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances."

The question arises, therefore of what is sufficient knowledge of the presence of narcotic goods which, when accompanied by custody or control, will constitute possession for the purposes of par. (c). The answer to that question will, I think, complete any inquiry concerning the extent to which par. (c) requires proof of intent because the matter is otherwise expressly dealt with by the defence of reasonable excuse and by sub-s. (1A).

Possession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law. As was observed in Director of Public Prosecutions v. Brooks [1974] A.C. 862, at p. 867, the technical doctrines of the civil law which separate proprietary and possessory rights in chattels are generally irrelevant for the purposes of the criminal law. There the concept is a basic one involving the intentional exercise of physical custody or control over something. Knowledge is the basis of the necessary intent. There may be a sense in which physical custody or control can be exercised over something in ignorance of its presence or existence, but this has never been considered sufficient to amount to possession in law. That is what Griffith C.J. meant in Irving v. Nishimura [1907] HCA 50; (1907) 5 C.L.R. 233, at p. 237, when he said:

"If a man has something put into his pocket without his knowledge, he cannot be charged with having it unlawfully in his possession, if that fact appears."

Although intent must be based upon knowledge, it is the degree of knowledge required which poses the difficult question. When, as in the present instance, the exercise is one of statutory interpretation the answer to the question will in the end depend upon the nature and form of the legislation."

"For the purposes of the criminal law, and for directness and simplicity, it is not possible, to my mind, to think of a better working definition of possession than that given by Lord Diplock in Director of Public Prosecutions v. Brooks [1974] A.C., at p. 866, where he said:

"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control."

See also Reg. v. Boyesen [1982] A.C. 768, at p. 777. But that still leaves the question of the degree of knowledge required and, as the differences of opinion in Reg. v. Warner [1969] 2 A.C. 256 show, it is not a question which is always susceptible of an easy answer. It is particularly difficult where a criminal offence involving the possession of something such as a narcotic substance is concerned.

The difficulty arises because a person may knowingly have custody or control of a receptacle containing a substance but he ignorant of the existence of the substance or its presence in the container. He may, on the other hand, know of the presence of the substance, as when he has custody or control of a package which he knows contains something, but have no knowledge of the physical nature of the contents other than might be suggested by the form of the package. Then again, he may be aware of the obvious physical attributes of the contents but be ignorant of their quality; for example, he may not know that they are a narcotic substance rather than some innocuous substance.

In determining the extent of the knowledge required by s. 233B(1)(c) it is, as I have said, unnecessary to look beyond the concept of possession to some extra mental element which might be implied by reference to general principles of the criminal law. Except to the extent that intent is required by the use in par. (c) of that concept, it has otherwise been expressly dealt with by the defence of reasonable excuse and by sub-s. (1A). In this regard, the problem is not as difficult as that dealt with in Warner's Case because it may, I think, safely be concluded that, having provided the defence of reasonable excuse, the legislature intended that the knowledge required by the paragraph should be no more than is minimally necessary to establish possession, leaving it to the defence to bring forward matters of an exculpatory nature.

Put quite plainly, I think that the proper construction of par. (c) is one which attributes to the concept of possession as it is used there, the bare minimum of knowledge. To construe the paragraph in that way is to recognize that in law knowledge is intrinsic to possession, but that the degree of knowledge required may vary according to context. The context of par. (c) is one in which the legislature has expressly dealt with intent other than by spelling out what is meant by possession and has done so in a way which indicates that it did not intend an extension of that concept beyond the requirements of basic legal principle.

In my view, it comes to this. A person cannot, within the meaning of par. (c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance. If, of course, he does not know what it is or does not know that it is a narcotic substance, he may have a defence of reasonable excuse under par. (c), but to point this out is only to emphasize that the use of the concept of possession in that paragraph was not intended to cover ground which would otherwise be covered by the defence expressly provided.

... If de facto possession means possession without any knowledge of the thing said to be possessed (and that is not the way the expression was used in Williams v. Douglas ...,) then it is a concept which is alien to the notion of possession which has hitherto prevailed, at all events in the criminal law. It has never been the position that a person can be in possession of something of which he knows nothing and par. (c) does not suggest anything different. As I have said, the availability of the defence of reasonable excuse justifies the conclusion that knowledge, admittedly a matter of degree, was intended to be limited to the minimum by the paragraph. But to go further would amount to more than a refusal to read into the paragraph a requirement of knowledge; it would be to read out a requirement which is already there. I do not think that such a result can be justified by any of the accepted principles of construction."

Only sub-section 233B(1)(b) of the Customs Act, not subsection 233B(1)(c), fell for consideration in Bahri Kural v. R. [1987] HCA 16; (1987) 162 CLR 502. Thus, the Court was concerned only with the mens rea necessary for an offence against that section, not the knowledge needed for an offence of having in possession. Nonetheless, there are important dicta in the case which serve to explain the relevance of "wilful blindness" in relation to mens rea.

At pp. 504-505, Mason C.J., Deane and Dawson JJ. said in their joint judgment:

In He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 C.L.R. 523, it was established that, in a prosecution for an offence against s. 233B(1)(b) of the Customs Act 1901 (Cth), the prosecution must prove that the accused has acted with mens rea, that is t say, with a guilty mind. There was,however, a degree of divergence between the majority judgments in He Kaw Teh which makes it desirable that we indicate in succinct terms what will, at least in the ordinary case of a prosecution for such an offence, be necessary to discharge that onus.

Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. 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. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law."

"It was not necessary that the applicant actually knew that there was some unidentified substance in the samovar; the requisite intent may rest upon something less than actual knowledge, such as awareness of the likelihood of its presence. ... the direction was also mistaken in that it would not necessarily suffice for the applicant simply to have closed his eyes to the nature of any substance in the samovar; it was necessary that there be circumstances, such as an awareness by the accused that any such substance might be a narcotic drug, to enable intent to be inferred on the criminal standard of proof."

Notwithstanding that there were misdirections, the majority held that there was no substantial miscarriage of justice and dismissed the application for special leave to appeal. Toohey and Gaudron JJ. dissented.

"It is important to bear in mind that knowledge, in relation to an offence of importation under s. 233B(1)(b) of the Customs Act, is an element of the criminal intent which must be established by the prosecution. The relevant intent is to import a prohibited import, in this case heroin.

In He Kaw Teh (1985) 157 C.L.R., at p. 536 Gibbs C.J., with whom Mason J. agreed, said of the charge of importation of prohibited goods:

"On any view of the effect of the section, if the suspicions of an incoming traveller are aroused, and he deliberately refrains from making any inquiries for fear that he may learn the truth, his wilful blindness may be treated as equivalent to knowledge. If he is given a bag or parcel to carry into Australia in suspicious circumstances, or if there is something suspicious about the appearance, feel or weight of his own baggage, and he deliberately fails to inquire further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that reason should be treated as having the necessary guilty knowledge."

Brennan J. did not expressly address this question, but he formulated the knowledge requisite to establish intention to import prohibited imports when in a container (as is here the case) as knowledge "... at the time when he imported the container, that it contained or was likely to contain narcotic goods, or that it contained or was likely to contain an object that was or was likely to be narcotic goods" (1985) 157 C.L.R., at p. 585. That formulation was preceded by a lengthy examination of the law relating to mens rea. It is helpful to set out a short extract from that examination (1985) 157 C.L.R., at p. 570:

"That is not to say that some state of mind less than knowledge is sufficient to establish intent. Actual knowledge is required (Giorgianni v. The Queen [1985] HCA 29; (1985) 156 C.L.R. 473, at pp. 504-507 but what is generally required to be known is at least the likelihood that the prescribed result of an act will occur (specific intent) or at least the likelihood that the existing circumstances are such as to give an act the character of the act involved in the commission of the offence in question (general intent)."

The formulations by Gibbs C.J. and Brennan J. are suggestive of differences, but are reconcilable if refraining from making inquiry is regarded in appropriate circumstances as an example of knowledge of likelihood sufficient to establish the necessary criminal intent. However, the notion of refraining from making inquiries is sometimes erected into a doctrine of wilful blindness. In that respect it is the subject of an article by Professor Lanham. "Wilful Blindness and the Criminal Law", Criminal Law Journal, vol. 9 (1985), p. 261. In our view there are real dangers, as Professor Lanham recognizes, in seeking to apply some doctrine of wilful blindness to the criminal law and in particular to a prosecution under s. 233B(1)(b) of the Customs Act. The basic question for the jury is whether the Crown has discharged the onus of proving that the accused intended to import a prohibited import, which requires at the least knowledge of the likelihood that what is being imported is a prohibited import. If there was nothing to arouse the accused's suspicion, it is hard to see how the Crown could discharge the onus of proof. If there was evidence from which the jury might reasonably conclude that the accused's suspicions were aroused but that he deliberately refrained from making further inquiries, the jury might properly conclude in all the circumstances that he knew that the goods were likely to be prohibited imports, or where, as here, the goods were in a container, that it was likely to contain narcotic goods. But it would have done so, not by applying a doctrine of wilful blindness, but simply by treating the question as an evidentiary one - and deciding whether the Crown had proved beyond reasonable doubt that the accused intended to bring into the country a prohibited import. That approach is in accord with what was said by Brennan J. in He Kaw Teh, and is not inconsistent with what was said by Gibbs C.J."

The same five judges comprised the Court in Pereira v. Director of Public Prosecutions (1988) 63 ALJR 1, which involved charges of offences against sub-sections 233B(1)(c) and (d) of the Customs Act. The charge against sub-section 233B(1)(d) was one of being "knowingly concerned" in the importation of a prohibited drug. It was again held that there had been misdirections but no substantial miscarriage of justice. Having decided that the application must fail, their Honours nonetheless added certain observations which are of present importance.

At pp. 2-3, the direction with respect to the possession charge was set out, and then, at p. 3, it was explained why it was in error. The Court said:

"On the charge of possession the jury was instructed of the necessity for the prosecution to prove knowledge. The trial judge indicated the matters upon which the prosecution relied to establish knowledge and added:

'Of course, the law knowing how difficult it is to prove knowledge, sometimes does allow a jury to consider the fact that somebody has acted with wilful blindness. So the law says that if the suspicions of a recipient of a parcel from overseas would be aroused and the person refrains from making any enquiries for fear he might learn the truth, then it is wilful blindness and can be treated as equivalent to knowledge of the contents. So if there is something suspicious about the receipt, or of the appearance of the goods, the jury may well be satisfied that if you are so minded beyond any reasonable doubt that the recipient wilfully shut his eyes, or her eyes to the possibility that the parcel was containing narcotics, for that reason you can treat that as being guilty knowledge and the necessary guilty knowledge for possession.'

Although the application must fail it is nevertheless appropriate that some observations be made on the direction relating to "wilful blindness". In Bahri Kural v. The Queen [1987] HCA 16; (1987) 162 CLR 502 it was emphasised (at 505 and 511-512) that in this area it is important not to transform matters of fact into propositions of law. That case was concerned not with what constituted "knowledge" as a distinct element of an offence but with the unspecified requirement that the accused had acted with mens rea or a guilty mind. It was pointed out in the joint judgment of Mason CJ, Deane and Dawson JJ (at 504) that, depending upon the nature of the particular offence, "the requirement of a guilty mind may involve attention, foresight, knowledge or awareness with respect to some act, circumstance or consequence". Their Honours concluded (at 504-505) that actual knowledge or awareness of the presence of the particular substance was not an essential element in the guilty mind required for the commission of the offence involved in that case, namely, the offence of importing a prohibited import.

Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473 at 504-507; He Kaw Teh, at 570. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt."

It is not entirely easy to reconcile the words underlined with what had been said in He Kaw Teh. The two charges in Pereira were as follows:

"(a) between 1 June 1984 and 1 August 1984, in contravention of the Customs Act 1901 (Cth), she was knowingly concerned in the importation into Australia of a quantity of cannabis resin being not less than the trafficable quantity; and

(b) on or about 1 August 1984 she, without reasonable excuse, had in her possession a quantity of cannabis resin not less than the trafficable quantity which had been imported into Australia in contravention of the Customs Act."

The former, (a) charged an offence against sub-section 233B(1)(d) of the Customs Act and involved "actual knowledge" as "a specified element of the offence charged". This suggests that (b), the charge of an offence against sub-section 233B(1)(c), involved "actual knowledge" as "a necessary element of the guilty mind required for the offence". That does not seem to be the way in which knowledge for the purpose of a charge of having in possession was approached in He Kaw Teh. There, knowledge was required not as an aspect of mens rea but as an element of the legal concept of possession. The distinction is important in the present case because the common law requirement of mens rea has no operation in relation to the Drugs Misuse Act, which is required to be read with the Queensland Criminal Code including the provisions of Chapter V of the Code with respect to criminal responsibility: Drugs Misuse Act, s. 44.

Despite the basis upon which the requirement of proof of knowledge to sustain a charge of having in possession was put in Pereira, in my view, knowledge is an element of possession according to its ordinary connotation. Strong support for this is to be found not only in the judgment in He Kaw Teh but in the earlier decisions there referred to and the express approval there by all members of the majority of what was said by Aickin J. at p. 610 in R. v. Williams [1978] HCA 49; (1978) 140 CLR 591.

In that case, the applicant was convicted of having a prohibited plant, cannabis sativa, in his possession, not being licensed or authorised to do so. On the date of the offence charged, a policeman found fragments of "green leaf material" in the pockets of two coats owned by the applicant which were hanging in the wardrobe of a room of which he was the sole occupant. A botanist later examined the coats and found a minute quantity of material which he identified as cannabis, mixed with dust, in the pockets. It would not have been practicable to extract a useable quantity of the plant and it could not be separated from the dust without a microscope. As was his practice with small quantities, the botanist did not bother to weigh the plant. It was green, which normally implied that it was not more than six to twelve months old. Section 130(1) of the Health Act 1937 (Q.) made it an offence for a person to have in his possession a dangerous drug, or a prohibited plant, or to procure for himself a dangerous drug or a prohibited plant or attempt to do so, save under and in accordance with the authority of a licence or other authorization provided by or under the Act. The expression "have in possession" was defined to include "having under control in any place whatever, whether for the use or benefit of the person of whom the term was used or of another person, and although another person has the actual possession or custody of the thing in question": and the expression "prohibited plant" was defined to mean "a plant or species of a genus of plant declared under this Act to be a prohibited plant: the term includes, with respect to a plant so described or a species so declared, the seeds (whether capable or incapable of germination) and all other parts thereof, whether attached thereto or detached therefrom.

The High Court held that the conviction should be quashed. Gibbs, Mason and Jacobs JJ. said that, in creating the offence of having possession of a dangerous drug or a prohibited plant, s. 130(1) contemplated the possession of such a quantity as made it reasonable to say as a matter of common sense and reality that it was the substance of which the accused person was presently in possession. (p. 600). Murphy J. said that possession within the meaning of the Health Act required knowledge that the person had the thing possessed and that knowledge by the person charged that he has the prohibited substance was not enough where the amount of material was so small or so dispersed or mixed up with other material that it could not in practice be used in the way contemplated by the Act: pp. 602-603. The foundation of Aickin J.'s judgment was in the passage at p. 610 quoted above, and turned upon the requirement of knowledge as an element of "possession".

The next question in the present case is whether "possession" is used in its ordinary sense in s. 9 of the Drugs Misuse Act. According to Gibbs C.J. in He Kaw Teh at pp. 541-542, the question to be decided is "... whether there is anything in the statute, or its history, which shows that some other meaning is to be given to the word where it appears ..." in s. 9.

The respondent did not submit that there is anything in the history of the Drugs Misuse Act or its operation or language which requires the conclusion that knowledge is not an element of possession for the purpose of s. 9. In the circumstances, it is unnecessary to consider this question in detail. However, I am satisfied that, in particular, sub-sections 57(c) and (d) of the Drugs Misuse Act do not require a conclusion that knowledge is not an essential element of possession within the meaning of s. 9. Sub-section 57(c) merely operates in specified circumstances to create a presumption of possession, including knowledge, which is rebuttable by an accused by proof that he "neither knew nor had reason to suspect" the presence of a dangerous drug in or on the place where it was found. Sub-section 57(d) of the Drugs Misuse Act (and section 24 of the Criminal Code) are consistent with a concept of possession which includes knowledge as an element. Each has scope for operation after possession, including knowledge, is proved by the prosecutor, especially if the knowledge which the prosecutor must prove is limited in the way stated by Dawson J. in He Kaw Teh at pp. 599-602. In any event, sub-section 57(d) is a general evidentiary provision, and a conclusion that it would have no relevant area of operation in relation to s. 9 of the Drugs Misuse Act if "possession" includes knowledge would be insufficient to displace that ordinary meaning of "possession" for the purpose of s. 9. Further, common sense supports the need for proof of at least some awareness; for example, a person should not be guilty of unlawful possession by reference to his or her "possession" of a thing or substance of which he or she is unaware: e.g. some thing or substance surreptitiously placed in a pocket in clothing or contained in an apparently empty receptacle. While the appellant's argument accepted that knowledge of the existence of the thing or substance is necessary, it was contended that knowledge of its nature or quality is not required. It is convenient to postpone for the moment further consideration of the question of the scope and extent of the knowledge which is required for possession.

The next question is whether the charge given to the jury at trial was a misdirection because it directed the jury that it was sufficient for the prosecution to prove that the appellant (i) knew that it was likely or (ii) had reason to suspect that the white powder contained a dangerous drug and was wilfully blind, i.e., shut his eyes and refrained from taking steps to ascertain the true position.

In my opinion, that was a misdirection which mistakenly converted into a legal proposition what was essentially an evidentiary issue. It was open to the jury to infer that the appellant had actual knowledge of the presence of the dangerous drug in the white powder because he knew that that was likely or had reason to suspect that that was so and in either event "shut his eyes", but, equally, it was open to the jury to decline to draw such an inference from those circumstances. The direction to the effect that knowledge of the likelihood of the presence of the dangerous drug or, more particularly, "reason to suspect" that there was a dangerous drug, in the white powder denied the appellant the opportunity to have the jury consider whether or not to draw the ultimate inference.

It remains to be considered whether, in the circumstances of this case, that misdirection was of any significance. It would have been significant only if, as the trial judge's directions to the jury stated, the knowledge required of the appellant was not merely of the existence of the "white powder substance" but of the presence therein of a dangerous drug. This accords with the view of Brennan J. in He Kaw Teh (p. 589). However, Dawson J. there held that the only knowledge required was of the existence of the thing or substance physically "possessed" and that knowledge of its nature or quality was not required (pp. 599-602). If that is correct, this appeal must fail because the appellant acknowledged that he knew that he had the white powder.

Neither party suggested that there is anything in the history of the Drugs Misuse Act which bears upon the scope and extent of the knowledge which is required to establish possession under that Act.

Further, while all are consistent with a requirement of knowledge as an element of possession for the purpose of the Drugs Misuse Act, neither the material provisions of that Act, nor those in Chapter V of the Criminal Code, depend for their effective or reasonable operation upon either a wide or a narrow view of the scope and extent of the knowledge which is required to establish possession.

The principal practical difference between the wide and narrow views lies in the effect which the respective views have upon the onus of proof, particularly having regard to the evidentiary provisions in section 57 of the Drugs Misuse Act. In these circumstances, it might be legitimate to interpret the Act, which is a penal statute, in the manner which is most favourable to an accused person; that is to say, to determine that possession requires proof of knowledge not only of the existence of the thing or substance but of its nature and even its quality. On the other hand, the clear tenor of the evidentiary provisions in section 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of a thing or substance which is a dangerous drug to prove that his or her "possession" is innocent. The narrow view therefore gives better effect to the legislative intent.

Not without some hesitation, I have concluded that this is the correct approach and that, subject to section 23 of the Code, all that the prosecution needs to show to establish possession is that an accused person has and knows that he or she has a thing or substance which is in fact a dangerous drug.

Since the appeal must therefore be dismissed, reference must be made to the application for leave to appeal against sentence. No argument was advanced on this matter on behalf of the appellant, and I am not persuaded that the sentence is manifestly excessive.

Accordingly, I would dismiss both the appeal and the application for leave to appeal against sentence.

The reasons of the President, which I have had the advantage of reading, set out the relevant statutory provisions, the direction of the learned trial judge which was the subject of this appeal, and the relevant passages from the authorities relied on by the appellant. The charge was one of having in possession a dangerous drug, namely heroin, contrary to s. 9 of the Drugs Misuse Act 1986. The appellant admitted, in effect, to being in possession of a quantity of white powder, which in fact was or contained heroin, but gave evidence that he was told and believed that it was perfume base. When earlier interviewed by police, he had said that when he asked what it was he was told "it's nothing to worry about". He did not then mention being told or believing that it was perfume base.

The learned trial judge directed the jury that, in determining whether the appellant had possession of a dangerous drug, it was sufficient if he knew that it was likely that the substance contained a dangerous drug and shut his eyes to the probability. It was that direction which the appellant submitted was wrong; and he submitted that, if it was wrong, he was entitled to a new trial. That direction assumed that the Crown had to prove that the appellant knew, or was wilfully blind to the fact, that he had heroin in his physical control; that is, that it was not sufficient if he knew he had in that control a white powder and if (whether he knew it or not) that white powder was or contained heroin.

If it was sufficient to prove that the appellant knew he had in his physical control a white powder, and that that white powder was heroin, the Crown had discharged its onus of proof, the direction was too favourable to the appellant and, for the reason referred to later, the appeal must fail.

It is necessary, therefore, to turn first to that question.

I would accept that generally, and in particular in s. 9, the concept of possession includes an element of knowledge. One cannot possess something if one is not aware of its existence or presence. So much was accepted by all members of the Court in He Kaw Teh v. The Queen [1985] HCA 43; (1985) 157 C.L.R. 523. In that case, which relevantly concerned s. 233B(1)(c) of the Customs Act 1901 (Cth), there was a difference of opinion between Brennan J., on the one hand and, on the other, Wilson J. (who dissented) and Dawson J. as to whether possession in that provision involved knowledge of the nature as well as of the existence and presence of the object. Brennan J. thought that it did: at 589. Wilson J. (at 561) and Dawson J. (at 603) thought that it did not. Gibbs C.J., with whom Mason J., as he then was, agreed, left the point open: at 538. It was not necessary to decide that question in that case because the issue was whether the appellant knew of the existence or presence of the substance in a false bottom of his suitcase. If he was believed, he was wholly ignorant that the substance was in his suitcase. That may explain why, notwithstanding that he was prepared to leave that question open, Gibbs C.J. said that the proper direction was that the jury would not be satisfied that the applicant had the heroin in his possession unless they were satisfied that he knew it was in his suitcase: at 545. That direction, in the circumstances of that case, was consistent with both of the above views, it being unnecessary to distinguish between the existence or presence of the substance and its nature.

Although, in concluding that possession under s. 233B(1)(c) required not merely knowledge, on the part of the accused, of the existence or presence of the substance in his physical control, but also knowledge of its nature, Brennan J. said that this flowed from "the inherent requirement in 'possession' of knowledge of what is possessed" (589), his Honour had earlier concluded that mens rea was an element of the offence: at 583-4, 586. Gibbs C.J., with whom Mason J. agreed, thought it unnecessary to rely on any common law presumption of mens rea because the necessary mental element existed in the concept of possession: at 539. Dawson J. thought it unnecessary to go beyond the concept of possession to the doctrine of mens rea because the legislature, having provided the defence of reasonable excuse, intended that the knowledge required by paragraph (c) should be no more than was minimally necessary to establish possession: at 601.

There was also a difference of opinion in that case between Brennan and Dawson JJ. as to whether the concept of importing (in an offence charged under s. 233B(1)(b)) involved a mental element. Brennan J. thought that it did not: at 585. Dawson J. thought that it did: 596, 598. Both were of the view that mens rea was a necessary element of the offence under paragraph (b).

I think that the judgments of Brennan and Dawson JJ. illustrate the difficulty, in criminal cases under the common law, when it is unnecessary to determine what mental element is required in the concept of possession, to separate the notion of possession as an ordinary word from the doctrine of mens rea. In that case, in Bahri Kural v. The Queen [1987] HCA 16; (1987) 162 C.L.R. 502 and in Pereira v. Director of Public Prosecutions (1988) 63 A.L.J.R. 1, the Court held that mens rea must be proved in a charge of an offence under s. 233B(1)(b) and in the last of those cases the court, speaking of charges under s. 233B(1)(c) and (d) said:

"Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence." (at 3)

As actual knowledge is not a specified element of the offence under paragraph (c), the court must have been saying that it was a necessary element of the guilty mind required for that offence.

Mens rea has no relevance to an offence against s. 9 of the Drugs Misuse Act. Section 44 of that Act provides that the Criminal Code shall, with all necessary adaptations, be read and construed with that Act; and Chapter V of the Criminal Code provides an exclusive code with respect to criminal responsibility. See also Criminal Code, s. 36. Sections 23 and 24 of the Code, the latter as modified by s. 57(d) of the Drugs Misuse Act, have particular application to an offence under s. 9.

Freed of the necessity to consider the effect of mens rea on the concept of possession, I do not think that the element of knowledge, which undoubtedly exists in that concept in its ordinary meaning, extends beyond knowledge, by the accused, of the existence and presence within his physical control of the object; it does not extend to knowledge of the nature of that object. There is nothing in the construction of the Drugs Misuse Act which would suggest that "possession" is being used in other than its ordinary meaning.

In the present case, therefore, the learned trial judge should have directed the jury that it was sufficient that the accused knew he had in his physical control a quantity of white powder (which of course he admitted) and that it was then for the accused, pursuant to s. 24 of the Criminal Code as modified by s. 57(d) of the Drugs Misuse Act, to show that he honestly and reasonably believed that it was perfume base. As there can be no doubt that, if his Honour had given that direction, the jury would have convicted, the appeal must be dismissed.

I agree that the application for leave to appeal against sentence should be refused.

I have read the reasons of the President, in which there are to be found the relevant statutory provisions and an explanation of the question which arises. The charge was one of unlawful possession of a dangerous drug, namely heroin. The appellant had possession of heroin, but said in Court that he believed it was perfume base. Counsel submitted on his behalf that the prosecution had to prove that the appellant knew the substance in question was a dangerous drug; counsel complained that the judge had summed-up on the basis that it was enough for the prosecution to show "wilful blindness" on the part of the appellant. The question whether the Crown had to prove the appellant knew he had possession of the relevant object does not arise here.

The statute under which the appellant was charged does not say that there has to be knowledge of the nature of the substance possessed, but it was argued that that mental element must be proved on the basis, principally, of a decision of the High Court in He Kaw Teh [1985] HCA 43; (1985) 157 C.L.R. 523. That case was not decided under a statute prescribing the effect on criminal responsibility of particular mental states.

The present problem may be illustrated by imagining the appellant holding a bag which contains, let us say, talcum powder. He has been told, and believes, that the bag contains heroin. On the theory as to the meaning of the word "possession" put forward on behalf of the appellant, the holder of the bag is not in possession of its contents, because the powder is talcum powder not heroin.

Plainly, this is not the ordinary meaning of the word "possession"; it would be a proper use of language to say: "I have some white powder in my possession, but have no idea what it is". The question then is whether in this context the word "possession" has a special meaning and what that meaning is. The immediate context is that of the statute under which the appellant was charged and the larger context is the statute law of Queensland, in particular the Criminal Code.

Some account must be given of the way in which the issue arose. The appellant was interviewed by the police in January 1993 when he admitted that he had placed two bags containing a white powder in his jacket and put the jacket in the boot of his wife's car. The white powder was in fact heroin, but the appellant said to the police "I don't know what it is, I haven't opened it". When asked to explain the circumstances the appellant told the police that a man he had known slightly for some time asked him to take a parcel to Sydney. The conversation went on, according to the appellant:

According to the appellant's version given to the police, the man asked him to take the parcel down and said that a mate of his would give the appellant a ring the following week and pick it up. The appellant said he put it in his pocket and thought no more about it. When the police asked what he believed the substance was, he said he did not know and told a story to the effect that he had sexual problems and that:

"...if I drop this down this bloke could give me a foil of tablets which are supposed to enhance sexual erections and activity".

The appellant said that he knew the person who had given him the substance by his first name, Barry or Bazza. Discussing what happened when he was handed the substance, the appellant had the following conversation:

"Police: Could you see what was in the plastic bag?

Appellant: All I can see is, is it was white, and I said, I said, 'Oh shit what's this?'

Appellant: He said 'It's nothing to worry about'. I wasn't sure. Um...

Appellant: Well I thought it might have been, you know, something. Er a chemical that they were using er to do something with. Er why would he want me to take it to Sydney.

Police: Do you agree that you were a er policeman in New South Wales?

Appellant: Yes. Er can I clarify that. A probationary constable"

The police asked the appellant where he was supposed to deliver the material in Sydney and he said that he was told he would be contacted. He later explained that he had two funny phone calls asking when he was coming down and he said "Mate look I'm not coming down...".

This improbable story could not have been made to seem more likely when, at the trial, the appellant explained that he had recently recalled that a man called Curry had asked him to take the substance to Sydney, that a friend of Curry's in the perfume business wanted that done, that the purpose of taking it to Sydney was to get it analysed and that the substance was perfume base.

Part II of the Drugs Misuse Act 1986 creates a number of statutory offences relating to dangerous drugs: trafficking, supply, production, possession and other offences. In respect of charges under Part II the evidentiary provisions of s. 57 of the Act apply and the most relevant provisions of that section are paras. (c) and (d):

"(c) proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in his possession unless he shows that he then neither knew nor had reason to suspect that the drug was in or on that place;

(d) the operation of section 24 of the Criminal Code is excluded unless that person shows his honest and reasonable belief in the existence of any state of things material to the charge;"

It will be noted that para. (c) includes the word "possession" and may be thought to throw some light on the meaning of the word in the statute. The bags in question containing white powder were, as has been explained, put in a jacket belonging to the appellant and then placed by him in his wife's car. An unusual result appears to ensue if one reads "possession" as requiring knowledge of the nature of the thing possessed: if the appellant was concerned in the management or control of the car then it would not be enough for him to show that he did not know the drug was in the boot; he would have to show that he did not have reason to suspect that. On the other hand, if he were not so concerned, then on the view put forward on behalf of the appellant the Crown would have to show that the appellant knew the heroin was there.

Prima facie, under s. 36 of the Criminal Code the criminal responsibility provisions of the Code apply to the offence in question; para.(d) of s. 57 modifies their operation. If possession has its ordinary meaning, as not importing knowledge of the nature of the thing possessed, then the Crown will not succeed if it is shown that the accused honestly and reasonably believed that the substance of which he had possession was, as he swore at his trial, perfume base. It should be noted also that s. 23 of the Code covers the circumstances in which someone slips into an innocent person's pocket, or suitcase, a dangerous drug. Difficulties of the kind which, as it seems to me, encouraged consideration of a special meaning of the word "possession" in a different statutory context in He Kaw Teh do not appear to arise here: see e.g. the reference to an "absurdly Draconian" result by Gibbs CJ at p. 529.

Before discussing He Kaw Teh further, it is convenient to mention what was decided in a subsequent application: Pereira (1988) 63 A.L.J.R. 1. There, the applicant had been convicted of two charges, one of which was having cannabis resin in her possession, under the same statute as was in issue in He Kaw Teh - i.e. the Customs Act 1901 (Commonwealth). The Court held that there must be proof of knowledge that the cannabis resin was or was likely to be secreted in the parcel (3L), that there must be "actual knowledge", but "a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge..." (3R).

In conventional use of language, a lawyer would speak of the physical fact of possession as the actus reus and the alleged possessor's mental state as mens rea, in a case of this sort. In He Kaw Teh, in the judgment of Gibbs C J with whom Mason J (as his Honour then was) agreed, the question of the knowledge the offender must possess was held not to depend on the doctrine of mens rea: 539, 541. Brennan J, however, held that the actus reus was not in question (585) and referred with approval to the Privy Council's view in Brooks [1974] A.C. 862 at 866, a case concerning a charge of possession of ganja:

"...when a person has physical custody or control of ganja the actus reus is established and...the mens rea by which that actus reus must be accompanied is knowledge that a thing is in the offender's physical custody or control and that the thing is ganja".

Dawson J regarded the question as depending on whether mens rea is an ingredient of the offence: 590. He Kaw Teh does not, therefore, appear to establish that, with respect to the statute there under consideration, the issue of the mental state which must accompany physical possession is merely a matter of interpreting the word "possession", not of applying the doctrine of mens rea. Even if it had been held in He Kaw Teh that application of the doctrine of mens rea was there irrelevant, that would not conclude the question for the purposes of the present case.

The other issue in He Kaw Teh was whether, assuming the Crown had to prove some mental state in the alleged possessor, it had to go so far as to show that the substance in question was a narcotic. Brennan J held that the Crown had to prove that the accused "knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question..." (589). Dawson J held that the alleged possessor need not know what the thing in his possession is (602) and Wilson J took the same view (560, 561). Whatever was said about it in the judgment of Gibbs CJ was obiter, not part of the ratio, because his Honour remarked:

"...we are not concerned in the present case with the situation in which the accused knows that he has the thing in his custody but says that he does not know its nature - e.g., if he says that he thought heroin was baking soda..." (538)

"...'possession' connotes knowledge of the existence of the thing possessed". (my emphasis)

But at 545 the judge held that on the relevant charge:

"...the jury should have been told that they could not find that the applicant had the heroin in his possession, unless they were satisfied that he knew that it was in the suitcase."

In my respectful opinion it is unclear whether He Kaw Teh should be regarded as establishing the proposition that, for the purposes of the Customs Act provision, it was necessary that the charge of possession be supported by proof that the accused knew that what was possessed was heroin. But more importantly, if it be assumed in favour of the appellant here that He Kaw Teh is authority for that proposition, the case does not support the view that that conclusion arises otherwise than by applying the doctrine of mens rea. It cannot be said that, absent that doctrine, the result the majority favoured would have been held to ensue.

It was said by the principal draftsman of the Code that -

"...under the criminal law of Queensland, as defined in the Criminal Code, it is never necessary to have recourse to the old doctrine of mens rea..."

- Widgee Shire Council v. Bonney [1907] HCA 11; (1907) 4 C.L.R. 977 at 981, a view acted upon by Cooper C J and Lukin J in Thomas v. McEather (1920) St.R.Qd. 166 at 174; by Philp J in Anderson v.Nystrom (1941) St.R.Qd. 56 at 69 and applied daily in Queensland courts. A clear provision is required to exclude the criminal responsibility sections of the Code: Hunt v. Maloney ex parte Hunt [1959] Qd.R. 164 at 183. There is no such provision here and one should read the Drugs Misuse Act as if the criminal responsibility provisions were part of it, except insofar as the latter specifically modifies the former. Courts have emphasised the need to apply the text of the Code: e.g. Brennan [1936] HCA 24; (1936) 55 C.L.R. 253 at 263, Stuart [1974] HCA 54; (1974) 134 C.L.R. 426 at 437. The suggestion presented to us appeared to be that one should read the relevant provisions of the Drugs Misuse Act as if the Code's criminal responsibility scheme were replaced by the principles laid down by the High Court in the cases concerning the interpretation of the Customs Act provisions.

That would not appear to be an orthodox course. The first sentence of s. 24 of the Code reads:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist".

Thus, if the accused has heroin in his pocket, but believes that what is in his pocket is some innocuous substance, then prima facie his guilt depends on whether the Crown can exclude the operation of s. 24 by showing that his belief was either not honest or not reasonable; but as has been pointed out para. (d) modifies the operation of the section, in favour of the Crown. The application of this regime sits awkwardly with one under which, in a case of alleged mistake as to the identity of the substance, one has to ask whether the Crown has proved as the necessary mental element that the allegedly mistaken accused knew the true fact - i.e. was not mistaken, any question of the reasonableness of his state of mind being irrelevant.

Some reference was made during the course of argument to a dictum of Aickin J. in Williams [1978] HCA 49; (1978) 140 C.L.R. 591 at 610, quoted in He Kaw Teh at 537 and at 586. In each instance the dictum was quoted in the course of the discussion of the effect of the reference to possession in s. 233B(1)(c) of the Customs Act, not as relevant to the different statute which was being considered in Williams. The dictum is as follows:

"It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances." (emphasis added)

In my respectful opinion the approving quotation of this dictum in He Kaw Teh was not intended to convey a view that under Queensland criminal law, the provisions of the Criminal Code are irrelevant to the state of mind which must be had by a person charged with possession. Aickin J relied on a decision of the Full Court of this State suggesting the contrary: Molloy v. Hallam (1903) St.R.Qd. 282. His Honour quoted from the judgment of Griffith C J a passage including the following:

"Chubb J. thought that there was no evidence of the hide being in the defendant's possession to his knowledge, and held that a mens rea was necessary. Section 23 of The Criminal Code provides that a person is not criminally responsible for anything that occurs independently of his will. A man cannot therefore be convicted of having possession of property supposed to be stolen if he knows nothing about the possession. "

Here, as I think, s. 23 applies, as does s. 24 of the Code, the latter being subject to a modification.

It follows, in my respectful opinion, that insofar as the trial judge placed any onus on the Crown of proving knowledge that the substance was a narcotic, he erred in favour of the appellant. In the present case, as in He Kaw Teh, there is no question but that the appellant knowingly had possession of the powder; the only issue was as to his knowledge of the nature of the powder and that issue was to be resolved by reference to the provisions of the Criminal Code and in particular by that dealing with mistake. Given the directions of the judge, the verdict of the jury is inconsistent with their being satisfied that the appellant honestly believed that the packet contained, as he said at the trial, perfume base. Further, I think that to be satisfied of that, the jury would have had to act perversely.

In my opinion there was no miscarriage of justice and the appeal should be dismissed. I agree that the application for leave to appeal against sentence should also be dismissed.