Lecture Three Summary 2019 PDF

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LECTURE THREE SUMMARY 1. Introduction 

In this class, we will consider: (a) the burden of proof in a criminal trial; and (b) the case of He Kaw Teh.

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When discussing He Kaw Teh, I will place special emphasis on: (i) what lawyers mean when they refer to the actus reus and mens rea elements of criminal offences; (ii) the various types of actus reus elements; and (iii) the applicable principles when a court is trying to determine the mental element that applies to the actus reus element(s) of a statutory offence that is silent concerning mens rea.

2. Burden of proof 

In Woolmington v DPP [1935] AC 462 Viscount Sankey LC made a famous statement about the ‘golden thread’ that is ‘always to be seen’ ‘throughout the web of the English criminal law.’ What is that golden thread? What exceptions to the Woolmington principle did Viscount Sankey identify?

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In some recent cases, the High Court and the NSWCCA have considered issues relating to the presumption of innocence. In R v Dookhea (2017) 262 CLR 402, the former tribunal found that, in the circumstances of the case, the trial judge had not distorted the onus of proof in her charge to the jury by contrasting ‘any doubt’ with ‘reasonable doubt.’ In a series of cases, the NSWCCA has acknowledged that, if there is ‘reasonable doubt’ as to X, X is ‘reasonably possible.’ All the same, it has cautioned judges not too frequently to use ‘reasonable possibility’ language in their directions: see esp. Hadchiti v R (2016) 93 NSWLR 671. (That said, you should feel free to use such language when you are dealing with the onus of proof: it can help you to avoid negative and double negative propositions).

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The textbook claims that the Woolmington principle is somewhat diluted by evidential burdens on the defence, but this seems wrong. I will give my reasons in the lecture. How does the defence discharge an evidential burden? See Braysich (2011) 243 CLR 434, 454 [36].

3. He Kaw Teh 

What were the facts of He Kaw Teh?

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In the High Court, He Kaw Teh submitted that there were two things wrong with the trial judge’s direction to the jury that the accused would only be able to avoid being convicted of the importation offence if he proved, on the balance of probabilities, that he honestly and reasonably believed that there was no heroin in the suitcase. What was the appellant’s argument?

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What is the difference between the actus reus and mens rea elements of a criminal offence? What are the three main types of actus reus elements? (see Brennan J’s judgment)

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Further to the last point, the actus reus of murder is ‘an act or omission causing death.’ How many actus reus elements does this offence have and what type of actus reus elements are they? Now consider the offences of (a) sexual assault (‘sexual intercourse without consent’) and (b) assault police (‘assaulting a police officer in the execution of his or her duty’). How many actus reus elements do these offences have and what type of AR elements are they?

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Section 233B(1)(b) of the Customs Act, provided that: ‘Any person who imports ... into Australia any prohibited imports shall be guilty of an offence.’ It did not expressly state which mental element applied (by contrast, see, for instance, s 18(1)(a) of the Crimes Act). In a characteristically pellucid judgment, Gibbs CJ (Mason J agreeing) identified the relevant criteria when a court

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determines the mens rea that applies where, as here, a statutory provision defining an offence says nothing about the requisite mens rea for that offence. 

Gibbs CJ refers to subjective, strict, and absolute standards. How do they differ from one another?

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What reasons did Gibbs CJ give for his conclusion that the presumption in favour of a subjective mens rea standard for the ‘prohibited substance’ (circumstance) actus reus element had not been rebutted?

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Brennan J takes a different approach from Gibbs CJ.

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First, he suggests that, where act or omission actus reus elements are concerned (for example, ‘sexual intercourse’ for the offence of sexual assault), there is a strong presumption that a subjective mens rea standard applies. If this presumption is rebutted, a strict standard is not an option; rather, the standard will be absolute.

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Secondly, he says that, where result actus reus elements are concerned, the usual mental state is a subjective one; but he says nothing about the strength of the relevant presumption or whether a strict standard is an available alternative here.

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Thirdly, regarding circumstance actus reus elements, Brennan J draws a distinction between integral and attendant circumstances. He does not make it entirely clear what he means here, but McNamara and Quilter (2013) (36)(2) UNSW Law Journal 534, 551, think that Brennan J is saying that a circumstance will be an integral circumstance if it is, ‘essential to giving the conduct in question its criminal character.’ An example is the ‘without consent’ circumstance element in the offence of sexual assault: without it, the relevant conduct would not be criminal, because sexual intercourse is not an offence.

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Brennan J believes that, where there is an integral circumstance, the rules for act or omission actus reus elements apply: i.e. there is a strong presumption in favour of a subjective fault requirement, and strict liability is unavailable as an alternative. But where there is an attendant circumstance, the presumption in favour of subjective mens rea is weaker, and strict liability is an alternative.

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The importation offence: Brennan J thought that the ‘prohibited substance’ circumstance was an integral circumstance. On this hypothesis, did he think that the presumption in favour of subjective mens rea had been rebutted? Why/why not? He then considered what the position was if, contrary to his view, this was an attendant circumstance. On this hypothesis, did he think that the presumption in favour of subjective mens rea been rebutted? Why/why not?

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The possession offence: Before we work out exactly what He Kaw Teh stands for, what is Brennan J’s reasoning concerning the requisite mens rea for the possession offence?

4. Conclusions about He Kaw Teh

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The principles to apply – and those that the courts apply: see for example Wampfler (1987) 11 NSWLR 541, 546 – are stated by Gibbs CJ. Accordingly, the reasoning concerning attendant and integral circumstances is not the law. Maybe this is not to be regretted. Why should the presumption in favour of subjective mens rea be stronger in the case of act and omission elements and ‘integral circumstances’? Act or omission elements (e.g. ‘sexual intercourse’ in the case of sexual assault) often are not ‘essential to giving the prohibited conduct its criminal character.’ And why should strict liability not be an option where such elements are concerned?

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He Kaw Teh is consistent with the liberal principles underlying the criminal law, but insofar as it countenances the possibility of strict or absolute standards, it also hints at the criminal law’s sometimes less liberal content.

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