He Kaw Teh v The Queen [1985] HCA 43

He Kaw Teh v The Queen [1985] HCA 43

For offences of importing and possessing prohibited narcotics under s. 233B(1)(b) and (c) of the Customs Act 1901 (Cth), the prosecution must prove beyond reasonable doubt that the accused knew of the existence and nature of the narcotic goods; mere physical importation or possession without such knowledge is insufficient. The burden does not rest on the accused to prove lack of knowledge on the balance of probabilities. Directions to the jury that knowledge is not required and that the accused bore the legal onus were misdirections. The matter is remitted for the Court below to determine whether, despite the misdirection, there has been a substantial miscarriage of justice.

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Special Leave to Appeal and Substantive Appeal to High Court
Outcome
Special leave granted; appeal allowed; conviction set aside; matter remitted to Full Court of Supreme Court of Victoria to proceed in accordance with this judgment.
Legal Topics
['mens Rea' 'strict/absolute Liability' 'burden of Proof' 'customs Offences' 'possession and Importation of Narcotics']
['criminal Law'] ['mens Rea' 'strict/absolute Liability' 'burden of Proof' 'customs Offences' 'possession and Importation of Narcotics']

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Procedural Posture

Criminal Appeal / Special Leave to Appeal and Substantive Appeal to High Court

Legal Issues

  1. 1 ['Whether offences under s. 233B(1)(b) and (c) of the Customs Act 1901 (Cth) require proof by the prosecution of mens rea (guilty knowledge) or whether liability is strict/absolute;' 'Where Parliament has not expressly displaced the requirement of mens rea, is the prosecution required to prove knowledge or intention as to the nature of the thing imported/possessed;' "Whether, in the absence of statutory words such as 'knowingly', the burden of proof of mental element is on the prosecution or reversed to the accused;" 'Whether an honest and reasonable but mistaken belief is a defence, and, if so, upon whom the onus of proof lies.']

Ratio Decidendi

For offences of importing and possessing prohibited narcotics under s. 233B(1)(b) and (c) of the Customs Act 1901 (Cth), the prosecution must prove beyond reasonable doubt that the accused knew of the existence and nature of the narcotic goods; mere physical importation or possession without such knowledge is insufficient. The burden does not rest on the accused to prove lack of knowledge on the balance of probabilities. Directions to the jury that knowledge is not required and that the accused bore the legal onus were misdirections. The matter is remitted for the Court below to determine whether, despite the misdirection, there has been a substantial miscarriage of justice.

Court Disposition

Special leave granted; appeal allowed; conviction set aside; matter remitted to Full Court of Supreme Court of Victoria to proceed in accordance with this judgment.

Orders

  • ['Application for special leave to appeal granted.' 'Appeal allowed.' 'Order that the judgment of the Full Court of the Supreme Court of Victoria sitting in its criminal jurisdiction be set aside.' 'Matter remitted to that Court to proceed in accordance with the judgment of this Court.']