He Kaw Teh v The Queen

What happened?

The accused arrived at Melbourne airport and Customs officers found heroin concealed in the false bottom of a bag in his luggage. He was charged under the Customs Act with importing narcotic goods and with having them in his possession. The trial judge told the jury that the Crown did not have to prove any state of mind at all, and that if the accused wanted to rely on an honest and reasonable belief that would make his conduct innocent, it was for him to establish it on the balance of probabilities.

What did the Court decide?

Both parts of that direction were wrong, and the Court gave two distinct answers. First, the presumption that a guilty mind is an ingredient of an offence had not been displaced here — the penalties were severe, the stigma of conviction real, and there was no reason to think Parliament meant to catch a person who neither intended nor knew — so the Crown did have to prove the accused's knowledge, and an honest belief could negative it whether or not the belief was reasonable. Second, and expressly on the alternative footing that the provision required no proof of guilty knowledge but allowed an honest and reasonable belief to exculpate, the onus of disproving that belief would still lie on the prosecution rather than the accused. Special leave was granted, the appeal allowed and the matter remitted to the Full Court of the Supreme Court of Victoria.

Why does this case matter?

Its lasting contribution is the method it insists on. Before this case Australian courts had drifted into treating the presumption of a guilty mind as a weak one, easily set aside for anything that looked regulatory. The Court refused that shortcut and set out what actually has to be weighed: the words of the provision, the seriousness of the penalty and the stigma of conviction, and whether making the defendant liable regardless of fault would do anything at all to improve compliance. That last question is the sharpest of the three, because if there is nothing the defendant could have done differently, strict liability only finds a luckless victim.

It is also a reminder that silence in a statute is not an answer. A provision that says nothing about fault has not thereby excluded it.

Watch the statutory language closely, though. Where Parliament frames the exculpation differently — as a "reasonable excuse", for instance — the analysis and the onus can both change, and this judgment itself notices that.

Exam and application relevance

Classify the offence before arguing about the defence: full mens rea, strict liability with the mistake of fact available, or absolute liability where it is not — and say which, because the route you then take depends on it. Work through the three considerations rather than asserting a conclusion from the offence's regulatory look. Then keep two pairs apart. Who must raise an issue is a different question from who must prove it, which is the error the trial judge made here; and a mistake that negatives a knowledge element is not the same argument as the strict-liability defence, since only the second has to be reasonable. Check the jurisdiction's statute too, because several have legislated on fault and on mistake since.

Check your understanding

The trial judge allowed the accused to rely on honest and reasonable belief. What was still wrong with the way he put it to the jury?