Walden v Hensler

Walden v Hensler - [1987] HCA 54 - HCA 1986 case summary — Zoe

[18]

The provisions of this Chapter apply to all persons charged with any offence against the Statute Law of Queensland. The application of Ch. V of the Code to a particular statutory offence can be excluded by a special statutory provision. However, in the absence of express words, the provisions of another statute will not readily be construed as implying the exclusion of Ch. V or any of its provisions. Chapter V contains the provisions which substantially correspond with and supplant, in relation to statutory offences under the law of Queensland, the common law requirements of mens rea. In common law States and Territories, the presumption that mens rea is an element of a statutory offence may be displaced not only by the express words of a statute but also - albeit not easily - by considerations relating to the subject-matter or purpose of the statute creating the offence: Lim Chin Aik v. The Queen [3] ; Gammon Ltd. v. Attorney-General (Hong Kong) [4] ; He Kaw Teh v. The Queen [5] . In Queensland, to exclude the application of Ch. V or one of its provisions to a statutory offence, s. 36 must be repealed pro tanto. The test for determining whether Ch. V is excluded has been said to be more rigorous than the test for determining whether the common law presumption relating to mens rea has been displaced: Brimblecombe v. Duncan; Ex parte Duncan [6] ; Hunt v. Maloney; Ex parte Hunt [7] ; and cf. Geraldton Fishermen's Co-operative Ltd. v. Munro [8] . Those cases concerned the exclusion of ss. 23 and 24 of Ch. V, but s. 36 applies equally to all the provisions of Ch. V and there is no reason to adopt a different approach with respect to s. 22. Whether or not there is a difference between the common law criterion for excluding mens rea from application to a statutory offence and the Code criterion for excluding Ch. V or one of its provisions, the latter criterion is not satisfied unless the statute creating the offence effects the exclusion expressly or by necessary intendment. Chapter V is nots excluded merely on the ground that its application would make the object of the statute creating the offence more difficult of attainment. 1. [1963] A.C. 160, at pp. 173-174. 2. [1985] A.C. 1, at p. 14. 3. (1985) 157 C.L.R. 523. 4. [1958] Qd R. 8, at pp. 12, 18-19. 5. [1959] Qd R. 164, at pp. 172, 183. 6. [1963] W.A.R. 129, at p. 133.

[33]

The defence may be available, it seems, even though the infringing of the proprietary rights of another is not an element of the offence. In Reg. v. Twose [25] , there is a brief report of a ruling by Lopes J. on an indictment charging a prisoner with having set fire "wilfully and maliciously" to some furze growing on a common. Persons living near the common had occasionally burnt the furze to improve the growth of the grass. Lopes J. ruled that, if the prisoner set fire to the furze "thinking she had a right to do so", that would not be a criminal offence: see also Smith v. Barnham [26] , per Bramwell B. The defence may be available also in cases where the gist of the offence is an injury to a neighbouring property by use of the offender's own property. In Reg. v. James [27] workmen employed by a mine owner had stopped up the airway to an adjoining mine, having been instructed to do so by their employer. It was an offence to obstruct an airway of a mine but it was necessary to prove that the act was done maliciously. Lord Abinger said [28] "if these men acted bona fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, they are not within this Act of Parliament". And in Reg. v. Matthews and Twigg [29] where the prisoners were charged with a similar offence, Brett J. ruled [30] : "I think that the act charged must be done not only wilfully, but maliciously, that is to say, with a wicked mind, and if it is done under a bona fide claim of right it is not done maliciously according to our criminal law." In Reg. v. Langford [31] , on the trial of prisoners charged with an offence that being riotously assembled they unlawfully demolished a house, Patteson J. directed the jury that a bona fide claim of right to demolish the house would be inconsistent with the existence of a "wrong motive" and that a wrong motive was essential to criminal liability. In all of these cases, a claim of right was admitted to negate a mental element in the offence charged. At common law, the defence is applicable to any offence the mental element of which is negated by the existence of an honest claim of right to do the prohibited act or make the prohibited omission.

[38]

Part VI of the Criminal Code is headed "Offences relating to property and contracts", and I have no doubt that the phrase "offences relating to property" in s. 22 should be construed as applying exclusively to offences of the character of those defined in that Part of the Code. These offences can be classified under the headings of wrongful or fraudulent interference with the property of others which involve deprivation of or interference with the proprietary or possessory rights of the true owner or person in possession, or acts involving destruction or damage to the property of others. I consider that such a construction is supported by the provision that the existence of an intent to defraud would deprive a defendant of the benefit of the protection. The offences that are defined in Pt VI of the Code which might be marshalled under the category of offences relating to property have in common the characteristic that an element of the offence is either the causing of another to part with property or the infringement of another's right over or in respect of property. But does s. 22 apply only to offences which exhibit that characteristic? Or is it sufficient to attract the operation of s. 22 that the relevant act or omission affects in some way a thing which answers the description of "property" in s. 1 - e.g., by destroying, damaging, using, disposing of or otherwise dealing with property or rights over or in respect of property? If s. 22 were to be understood as applying to any act or omission affecting property, it would have an operation far wider than has been attributed to it in Queensland thus far (see Olsen v. Grain Sorghum Marketing Board; Ex parte Olsen [36] ) and far wider than the common law defence from which it was derived. The wider interpretation of s. 22 would put a premium on ignorance of the general criminal law. Contrary to the law's intent, it would furnish a disincentive to the dispelling of ignorance as to the provisions of the criminal law governing the destroying, damaging, using, disposing of or otherwise dealing with anything which answers the description of property. A common law right over or in respect of property, whether actually possessed or mistakenly claimed, would override any provision of the general criminal law relating to property of which the person claiming the right was ignorant, though the provision in question did not relate to the rights of any other person over or in respect of the property. The wider interpretation unduly subverts the capacity of the criminal law to serve the public interest, for it would go far towards frustrating its broad educative and deterrent function (especially in relation to statutes creating regulatory offences). On the other hand, it is understandable that s. 22 should operate to suspend the sanctions which the criminal law imposes for conduct which causes another to part with property or which infringes another's rights over or in respect of property when the offender honestly believes that he is entitled to engage in that conduct by reason of a right he mistakenly believes himself to have. The narrower interpretation of s. 22 acknowledges that, while a person's ignorance of his private rights should not expose him to criminal punishment for what he does or omits to do under an honest mistake as to those rights, it is necessary in the public interest to leave the first paragraph of the section to operate generally over the criminal law. It is therefore necessary to give to s. 22 the narrower interpretation, holding that it applies only to offences in which the causing of another to part with property or the infringing of another's rights over or in respect of property is an element. So understood, does s. 22 apply to any offence created by s. 54 of the Act? 1. [1968] W.A.R. 66. 2. [1968] W.A.R., at p. 72. 3. [1962] Qd R. 580.

[52]

In considering whether the "nature of the offence" in the present case was "trivial", a majority of the Full Court (Connolly J. with the concurrence of de Jersey J., Thomas J. expressing no opinion) said that "offences in relation to Bustards, carrying as they do a relatively large royalty, cannot be regarded as trivial". That view, if it be right, excludes the possibility of an order under s. 657A. But s. 657A is expressed to apply to any offence within the jurisdiction of the sentencing court. As s. 657A is expressed in general terms and therefore applies to a wide variety of offences in the criminal calendar attracting various maximum penalties (excepting, perhaps, offences in respect of which mandatory sentences are prescribed) triviality cannot be determined by reference to the maximum penalties prescribed. If that were the criterion of triviality, a division would be created between offences to which s. 657A applies and offences to which, despite the generality of its terms, it does not. Triviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed. It was erroneous to ascertain the triviality of the offence by reference simply to the statutory provision which prescribes the maximum penalty. If it had been right to construe s. 54(2) as requiring the imposition of a penalty of double royalty in addition to any discretionary fine, it might not have been open to the magistrate to make an order discharging the appellant under s. 657A. But, as that construction of s. 54(2) was erroneous, there was no impediment to the application of s. 657A. Its application was not properly considered, though the circumstances of the case called for its consideration. The sentence imposed on the appellant must therefore be set aside. Ordinarily, for reasons which I explained in Neal v. The Queen [39] , I would think the appropriate order to be that the matter of sentence be remitted for reconsideration by the Full Court. But this is a case where, on the facts appearing in the record of proceedings, I can see no legitimate ground for abstaining from making an order under s. 657A. 1. (1982) 149 C.L.R. 305, at pp. 322-323.

[65]

It should be apparent from the foregoing that the answer to the question whether an honest belief of entitlement to act in a particular way with respect to property constitutes a defence of honest claim of right under s. 22 of the Code can only be ascertained by reference to the elements of the alleged offence. If actual knowledge of criminality is an element of the offence, a defence of claim of right will be available to negate that element of the offence if the claim of right results in the absence of such knowledge. In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it. Closer to the present case, the point can be yet again illustrated by reference to possible offences involving the taking of property from its natural environment. An example of such a possible offence is that of mining in a natural forest. If the offence charged be the extraction of minerals owned by the Crown or another person in breach of the provisions of royalty legislation, the existence of an honest belief of ownership of the relevant minerals would found a defence of claim of right under s. 22 of the Code in that, if the belief were well founded, the offence would not have been committed. On the other hand, if the mining is in breach not of royalty provisions but of a general conservation law intended to protect the forest from all mining activities, including any mining activities of the owner of the minerals, an honest belief of ownership of, or of some more limited claim to, the minerals could not constitute a defence of claim of right under s. 22 for the reason that, even if it had existed, ownership of, or the more limited claim to, the minerals would be simply irrelevant. In such a case, ignorance of criminality flows not from the honest belief of ownership or of some more limited entitlement but from ignorance of the relevant criminal law. So it is in the present case.

[67]

The provisions designed to ensure the observance of the Act's royalty system are to be found in Pt XI itself: s. 68 imposes liability to pay the prescribed royalty; s. 70 provides for civil proceedings to recover the amount of royalty; s. 71 authorizes seizure of fauna until royalty is paid; s. 69 provides that a person who fails to pay royalty that he is liable to pay under the Act is guilty of an offence. Section 54 is in Pt IX which is concerned with the general regulation, for conservation purposes, of the keeping and protecting of fauna, including fauna taken before the commencement of the Act. The provisions of s. 54 and the other sections in Part IX are neither based upon nor restricted by reference to the royalty system which the Act establishes or the proprietary rights of the Crown which the Act proclaims. In its context in Pt IX, s. 54 is properly to be seen as a general conservation provision for the protection of "fauna in its habitats": see the Act, long title. Neither failure to pay royalty, which is an offence under Pt XI (s. 69), nor interference with the proprietary or possessory interest of the Crown in fauna constitutes an element of the offence created by s. 54. Both the fact that the prescribed amount of royalty has been paid and the identity of the holder of any proprietary or possessory rights in the fauna are irrelevant to an offence against the sub-section. Indeed, the existence of a genuine belief of ownership or other rights in relation to the fauna is no more relevant to the offence of taking or keeping fauna in contravention of s. 54(1) than was ownership of the grain sorghum to the offence of selling or buying grain sorghum in Olsen's Case [44] . Put differently, the general words of s. 54(1) are such as to make the taking or keeping of prescribed fauna by a person an offence regardless of whether the person is exercising what would, if the criminal law creating the offence had not been enacted, have been rights of ownership or traditional rights of hunting with respect to that fauna. That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals. In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights. Accordingly, the defence of honest claim of right was not available to the appellant in the circumstances of the present case.

[79]

A person who commits an offence against this section is liable to a penalty of $2,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed. The alteration of the penalty provision to conform to the style contemplated by s. 41(1) effectively excluded the basis of the decision in Cutmore . It was no longer possible to discern in s. 54(2) an "express" legislative intent that the specification of an additional "penalty" in s. 54(2) should not be construed in the ordinary sense required by the Acts Interpretation Act Q. "where a penalty is prescribed", that is to say, as the specification of a maximum. In that regard, it should be noted that such a construction of s. 54(2) would not mean that a person convicted under s. 54 could avoid liability to pay any royalty at all, since s. 70(5) of the Act expressly provides that a person so convicted is liable to pay the prescribed royalty "in addition to any penalty to which that person is liable upon conviction". In these circumstances, the deletion of any reference to a minimum penalty in s. 54(2) effectively rendered inapplicable to the present case the reasoning of the majority of this Court in Byrne v. McLeod and the decision of the Full Court of the Supreme Court in Cutmore . Moreover, it resulted in a situation in which there remained no answer to the reasoning of the dissenting judgment of Dixon J. in Byrne v. McLeod which led his Honour to the conclusion that the additional penalty should be construed as a maximum, rather than a mandatory, amount. As his Honour said [52] : The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case. In my opinion, it follows that the legislation ought to receive a construction which would leave it in the Court's discretion to fix the entire penalty between the prescribed maximum and minimum and would not expose the offender to a fixed penalty capable of amounting to a crushing imposition. 1. (1934) 52 C.L.R., at p. 8.

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Judgment (195 paragraphs)

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