Beckwith v R
(1976) 135 CLR 569(1976) 12 ALR 333
(1976) 51 ALJR 247
(Judgment by: Mason J)
Between: Beckwith
And: the Queen
Judges:
Gibbs J
Stephen J
Mason JJacobs J
Murphy J
Subject References:
Customs
Judgment date: 1 November 1976
Sydney
Judgment by:
Mason J
Resort to the history of a statute all too rarely illuminates the meaning of its current provisions. This case is an exception. The history of the Customs Act indicates quite persuasively that s. 233B was intended from its very inception to operate independently of the provisions of s. 237. (at p578)
2. Section 237, which provides that any attempt to commit an offence against the Act shall be an offence itself and which is of general application, was a provision in the original Customs Act of 1901. So also was s. 236, another provision having a general application, which provides that whoever aids, abets, counsels or procures or by act or omission is in any way directly or indirectly concerned in the commission of any offence against the Act shall be deemed to have committed such offence. Both provisions therefore had and for that matter still have an application to s. 233. That section in its original form provided that "No person shall smuggle or unlawfully import, export, convey or have in his possession any goods and no master of a ship or boat shall use or suffer his ship or boat to be used in smuggling or in the unlawful importation, exportation, or conveyance of any goods". (at p579)
3. Section 233 was amended by the Customs Act 1910 (No. 36 of 1910), the Act which introduced s. 233B. As then amended, s. 233 provided:
- "(1)
- No person shall -
- (a)
- smuggle any goods; or
- (b)
- import any prohibited imports; or
- (c)
- export any prohibited exports; or
- (d)
- unlawfully convey or have in his possession any smuggled goods or prohibited imports or prohibited exports.
- Penalty: One hundred pounds.
- (2)
- It shall not be lawful for any person to convey or have in his possession without reasonable excuse (proof whereof shall lie upon him) any smuggled goods or prohibited imports.
- (3)
- It shall not be lawful for any person to convey or have in his possession any prohibited exports with intent to export them or knowing that they are intended to be unlawfully exported."
The reference to penalty has been deleted and replaced by a different provision. Otherwise s. 233(1) remains unaltered. (at p579)
4. Although the form of sub-s. (1) of s. 233B has not changed substantially since it was introduced in 1910, the Customs Act (No.2) 1971 (Act No. 134 of 1971) made two significant changes by making the section apply to prohibited imports and exports which were narcotic goods and by introducing par. (1)(ca). At the same time s. 233B(1) was amended so as to deal with exportation or intended exportation of prohibited exports. As originally enacted in 1910 s. 233B(1) provided as follows:
- "233B(1)
- Any person who -
- (a)
- without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship, any prohibited imports to which this section applies, or
- (b)
- imports, or attempts to import, into Australia any prohibited imports to which this section applies, or
- (c)
- without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act, or
- (d)
- aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation into Australia of any prohibited imports to which this section applies, or
- (e)
- fails to disclose to an officer on demand any knowledge in his possession or power concerning the importation or intended importation into Australia of any prohibited imports to which this section applies,
- shall be guilty of an offence against this Act.
- Penalty: Imprisonment for not less than three months and not more than two years."
It was, as the marginal note suggests, a special provision in relation to prohibited imports. By sub-s. (2) it was expressed to apply "to all prohibited imports to which the Governor-General by proclamation declares that it shall apply". (at p580)
5. Consequently in 1910 and thereafter s. 233 was a general provision creating offences in relation to the smuggling of goods, the importation of prohibited imports, the exportation of prohibited exports and, inter alia, unlawful possession of prohibited imports and prohibited exports. On the other hand, s. 233B was conceived as a special provision applying only to such prohibited imports as the Governor-General by proclamation might declare it to be applicable. But its application to prohibited imports so declared was not an exclusive application. It did not displace the operation of s. 233 in relation to such imports, as s. 233B(4) made clear. It provided:
"(4) This section shall not prevent any person from being proceeded against for an offence against any other section of this Act, but he shall not be liable to be punished twice in respect of any one offence."
The consequence was that the imporation or possession of prohibited imports the subject of a proclamation under s. 233B(2) could give rise to offences against s. 233 and s. 233B, it being understood, as I have pointed out, that s. 236 and s. 237 applied to s. 233. (at p580)
6. It is in this setting that s. 233B has to be considered and the relationship between it and ss. 236 and 237 has to be determined. Viewed in this light the limited provision as to attempts, that which finds expression in s. 233B(1)(b), and the more general provision as to aiding and abetting, that which finds expression in s. 233B(1)(d), have a particular significance. Their presence is explicable only on the footing that s. 233B was intended to have an operation independent of ss. 236 and 237. Otherwise there is no rational explanation for the contemporaneous introduction into the Act of a new s. 233 containing no provisions as to attempts and aiding and abetting and relying in this respect on ss. 236 and 237, and of s. 233B, a special provision creating somewhat similar offences in relation to a limited category of goods of the same class, containing special provisions as to attempts and aiding and abetting. (at p580)
7. If s. 237 applied to s. 233B, the reference to "attempts to import" in par. (1)(b) was quite unnecessary. So also was par. (1) (d), if s. 236 also applied to the section, subject to a slight difference in language between that paragraph and s. 236. It is inconceivable that a duality of provisions as to attempts and aiding and abetting was intended in the case of s. 233B. (at p581)
8. The contrary view must rest, I think, on the limited character of the attempt provision which was incorporated in par. (1)(b) of s. 233B. It is confined to attempts to import. No endeavour is made to create the offence of attempting in relation to pars (1) (a), (c), (d) and (e). But this approach was, in my opinion, both understandable and sensible, once it is recognized that ss. 233 and 233B have a dual operation in relation to prohibited imports declared by proclamation under s. 233B(2) and it is also recognized that s. 233 operates in conjuction with ss. 236 and 237. (at p581)
9. Thus there existed the offence of attempting to have in possession prohibited imports (s. 233(1)(d) and s. 237), not-withstanding that the imports were declared under s. 233B. In this respect I shall assume that the offence of attempting to have possession of goods may be created by Parliament or more accurately that a general provision creating the offence of attempting may be applied to an offence of having goods in possession. If this assumption is incorrect, then there is even stronger ground for holding that s. 237 does not apply to s. 233B. (at p581)
10. In the light of all this the criticism based on the limited nature of the attempt provision in s. 233B(1)(b) loses its force. True it is that the penalty prescribed for an attempt to commit an offence against s. 233 is less than the penalty prescribed for an offence against s. 233B. However, this is not in my view of any consequence. (at p581)
11. Of the original paragraphs in s. 233B(1) these comments may be made: the offences created by pars (1) (b) and (1) (e) are not readily susceptible of becoming the subject of attempts; that although no provision is made for an attempt in relation to par. (1) (d) - the aiding and abetting provision - there may exist a possible alternative arising from the combination of ss. 236 and 237 with s. 233; and that although no provision was made for the creation of the offence of attempting in relation to pars (a) and (c) - the offences relating to possession - an alternative offence of attempting was created by s. 233(1)(d) in conjunction with s. 237. (at p581)
12. That s. 233B has an operation independent of ss. 236 and 237 is, I think, confirmed by the presence of sub-ss. (1A) and (1B) which were introduced into the section by Act No. 54 of 1967 and Act No. 134 of 1971 respectively. They provide:
"(1A) On the prosecution of a person for an offence against the last preceding sub-section, being an offence to which paragraph (c) of that sub-section applies, it is not necessary for the prosecution to prove that the person knew that the goods in his possession had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession had been imported into Australia in contravention of this Act."
"(1B) On the prosecution of a person for an offence against sub-section (1) of this section, being an offence to which paragraph (ca) of that sub-section applies, it is a defence if the person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act." (at p582)
13. By their terms they provide a defence "On the prosecution of a person for an offence against sub-section (1) of this section...". They do not provide a defence on the prosecution of a person for an offence against s. 237. An attempt was made by the Crown to surmount this hurdle by submitting that sub-ss. (1A) and (1B) form part of the concept of the offences created by sub-ss. (1)(c) and (ca). This of course is not correct; the language makes it manifestly clear that the defences are available only on prosecutions for offences against sub-s. (1), and that they are limited to pars (1) (c) and (1) (ca). (at p582)
14. It is true that Act No. 134 of 1971 gave s. 233B a somewhat different significance when it was converted into a special provision with respect to narcotic goods and par. (1)(ca) was included in it and other amendments were made which gave it an application to exportation and to prohibited exports as well as to importation and prohibited imports. But the alterations then made, apart from the introduction of sub-s. (1B) with which I have already dealt, did not touch the question whether the section operated in conjunction with, or independently of, ss. 236 and 237. Certainly the provisions of par. (1)(ca) which is in the following terms -
"without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of having been imported into Australia in contravention of this Act, or"
do not affect the question. Consequently, the operation of the section independently of ss. 236 and 237 was not affected by the amendments made in 1971. (at p582)
15. For these reasons I have come to the conclusion that s. 237 has no application to s. 233B and that the appellant was charged with an offence not known to the law. I would therefore allow the appeal and answer both questions in the negative. (at p583)