Selectrix Pty Ltd v Humphrys [2001] VSC 45

Selectrix Pty Ltd v Humphrys [2001] VSC 45 - VSC 2001 case summary — Zoe

[10]

The proceeding had advanced in a relatively unusual way in that an issue as to the admissibility of some of the evidence (as seems to appear, the contest being on the basis that evidence was illegally obtained) was treated, almost from the outset, as evidence taken on the voir dire. Why that should have to have been so when the tribunal was the judge of both fact, law and admissibility is not clear to me. It led to a debate at that time as to whether or not this offence was one of absolute liability, requiring no intention, this being treated in effect as a discrete and preliminary question. This course was a matter for his judgment. It had the effect of fragmenting the calling of the evidence and treated the absolute liability issue as one separate from a consideration of other possible categorisation of the necessities of proof of the offence. It had, however, the virtue of dealing with that issue which, had it been decided differently, in effect terminated the issue of guilt. The consequence was that this aspect was all dealt with on the first day of the hearing (19 July 2000) and led to the Magistrate on 3 August 2000 making a ruling on this having heard a number of witnesses, whose evidence (notwithstanding the ruling), thereafter enured to form part of the evidence in respect of the charge subsequently considered on the basis of strict liability. In the course of considering whether or not the offence created by s.39(1) was one of absolute liability, regard was had by the Court to all of the arguable issues, including the fact that there was a monetary penalty only for breach of s.39(1) (in respect of an individual maximum $55,000 and, with respect to a company up to a maximum of five times that amount, that is a maximum of $275,000. The submissions in relation to this aspect dealt with the considerations raised by the mainstream cases including Reg. v. Bull & Ors[4]; Proudman v. Dayman[5]; Sherras v. Duratsun[6]; Teh[7]; White v. Ridley[8]; Wilson v. Gahan[9].

[12]

I note that Mr Ross strongly attacked the statement by the Magistrate that it seemed "that opinion in Teh's case was evenly divided on whether there was a mental state involved in the act of importing" he contending that that remark betrayed a misunderstanding of the principles involved. However, in my view the Magistrate's reference to Teh's case was not meant to be specifically related to the act of importing there involved but the act of importing generally, including the importation of prohibited but insignificant goods. His Worship took the view that, under the rubric of the purpose of the legislation and the penalties imposed, the objective of s.13 was to aid in the elimination of the risk to public health and the environment from ozone depletion. It thus fell within the category of provisions which had been traditionally viewed as tending against the necessity to establish against the mens rea. Ultimately, he concluded that these considerations led him to the view that Parliament intended the importation of HCFC without a licence to be an offence of strict, rather than absolute, liability. That is, mens rea was presumed, but if there was evidence which raised the issue, the person charged could not be convicted unless the Crown persuaded the tribunal that the accused did not act under an honest and reasonable mistake as to the facts. It seemed to me, having regard to his exposition of the issues, particularly his statement immediately prior to reaching this conclusion that "a provision which contains a monetary penalty of the size in this case points towards strict or absolute liability", that the Magistrate appeared to be moving to the absolute liability conclusion. He allowed the evidence he had heard to remain in as part of the corpus of evidence, and permitted the calling of defence evidence. This was the witness Mr Stuckey. At the end of the evidence and counsels' submissions, the Magistrate stated that he had formed the view that Parliament intended the offence to be one of strict liability. He stated that the defence had raised the question of honest and reasonable but mistaken belief as to facts. He rejected this, however. He concluded that the mistake was a mistake of law, but went on to consider, assuming that it was a mistaken belief as to facts, whether it was honestly and reasonably held. He stated that he regarded Mr Stuckey as a "blatantly honest" witness although he later used the phrase "patently honest person" but that he had engaged in careless or negligent behaviour (and presumably therefore unreasonable) in relation to his obligations under the legislation.

[14]

"... The relevant state of mind of a defendant is presumed to exist but of the defendant raises on the material, whether it be in the prosecution material or his own, the question as to whether he/she or it had an honest and reasonable belief which was a mistake of fact that if it had existed - that is, if the facts had in reality existed - it would have made innocent the act that the person is charge (of). And it is incumbent on the prosecution to prove the negative of that beyond reasonable doubt. In this case I have no doubt about the honesty of Mr Stuckey, he was blatantly honest, and I have no doubt that a belief of sorts and in my view it's certainly not a mistaken belief of fact. It is a mistaken belief of law ... He did not at the relevant time have any belief as to whether this particular substance that is the subject of the charge contained an HCFC in it. ... when he uses the expression that he "thought the substance was environmentally friendly" that meant to him there were no HCFC in it. If I elevated that into a fact that would make innocent the act that the company through him had indulged in. I would certainly accept that it was honest - that he was honest in holding that belief - but it certainly could not be said that it was reasonable. The basis of his information largely boiled down to this advertising, piece of advertising by a competitor, BOC ... and his reasoning went this way: BOC are the No. 1 in compressed gases in Australia, therefore they knew what they were saying. In this advertising material they say X, Y and Z, therefore I accept that at face value. That seems to me to be a wholly unreasonable way of approaching such an issue as this one, dealing as it is with ozone depleting substances. To rely implicitly upon the claims by a competitor in advertising material, when one well knows that puffery and other sorts of exaggeration occur in advertisements, to rely upon that sort of material explicitly without further ado is in my view an unreasonable way to approach the whole exercise. Even if the issue is properly raised, ... in my view it has been negatived beyond reasonable doubt."

[18]

The gas that the appellant had imported in 1998 (R134A) from Stonehill was innocuous so far as damage to the environment was concerned. It was in 1999 that Stuckey saw the advertisement for FR12 placed by BOC in the trade magazine. The advertisement (which formed part of the evidence) did not state or imply that FR12 contained HCFC and did not contain any specific material to suggest it was other than environmentally friendly. Mr Ross claimed that Mr Stuckey had relied upon the cartoon in the advertisement depicting a frog, claimed to be a recognised indicator of an environmentally-friendly product. Stonehill replaced R134A with FR12 in 1999. It was claimed that the BOC ad continued unchanged for some time, fuelling Stuckey's belief that it was not harmful. The case was also put that engagement of All Freight International as Customs Agents had to be taken into account, as such persons must be eminently qualified. It was argued, relying upon some evidence of Stafford, that notwithstanding contact between Mr Dunsmuir of the Customs Agents and the chemist, Bawden, in the Customs Department, nothing dangerous "was flagged". The claim was that once they were landed and cleared through Customs importation was complete and that at the time of importation Stuckey had no belief that any licence was necessary or alternatively believed that the licence was not necessary. The evidence clearly showed, however, and Mr Ross did not argue to the contrary, that Stuckey was aware that some products that were imported might require a licence. It must also be stated that the evidence showed that transport companies shipping gases are provided with documentary material bearing upon the product and in this case (according to the evidence of the witness Dunsmuir) both a Material Safety Data Sheet and a Hazardous Cargo Declaration had been supplied. These were apparently provided to enable the importer or its agents to satisfy themselves as to the nature of the substance being brought in and, if satisfied about it, this might provide a basis for a defence of honest and reasonable belief that the imported substance was not an HCFC in this case.

[32]

The prosecution argued that Selectrix had not formed a belief one way or the other. If that were true, then it would simply a case of inadvertence to a fact rather than having a mistaken belief about a fact. But the Magistrate specifically addressed the issue that the appellant called upon him to address, namely, that Selectrix had an honest belief as to an exculpatory fact and that that belief was reasonable. The Magistrate found that it was not reasonable and, as the parts of his reasons to which I have referred indicate, he primarily based his conclusion on the BOC advertisement. The Magistrate used the phrase "boiled down to", which seems to me the language of focussing on the main aspect and not necessarily excluding the inclusion by the Magistrate as part of his decision of other connected grounds. Essentially, the Magistrate formed the view that it was unreasonable for Stuckey to have based his conclusions on the advertisement of a competitor and that he should have borne in mind that there might well be misstatements and that the scientific implications were such that he should have exercised more care than that. Mr Ross pressed strongly that the Magistrate appeared to have overlooked the employment of the services of a well qualified Customs Agent and the failure of anything to be raised with his Customs agent by Bawden to suggest any doubt about the imported product. Nevertheless, neither the appellant nor his agent made any direct inquiry of Environment Australia. Selectrix was in possession of the MSDS previously referred to prior to the importation[13] which exhibit contained component information giving sufficient details to enable it to be pursued as to whether FR12 was an HCFC. Although the specifics of it as an HCFC do not appear to me to have been spelled out, there was a reference to "chloro", the key damaging ingredient, which should have rung warning bells. The problem was that Mr Stuckey did not bother to read the document. Moreover, it would appear from the record of interview[14] that there was a family friend who had previously given advice to Mr Stuckey as to the R134A gas that had been imported as not requiring a licence but had not been asked if there any different situation prevailed in relation to R12. The Magistrate 's conclusion that Selectrix, through Stuckey, concentrated wholly on the BOC advertisement and its continued publication appears to me to have been well based on the evidence. In the first place, in the taped record of interview between the federal police officer and Mr Stuckey on 9 December 1999 Mr Stuckey stated that his mistaken understanding that the gas was an ozone friendly gas was "because I'd taken notice of BOC advertising". He did not suggest there was any other source of the belief. Even more significant was his statement when cross-examined before the Magistrate. He stated as follows[15]:

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