Beckwith v R

(1976) 135 CLR 569
(1976) 12 ALR 333
(1976) 51 ALJR 247

---

(Judgment by: Gibbs J)

Between: Beckwith
And: the Queen

Court:

Judges:
Gibbs JStephen J
Mason J
Jacobs J
Murphy J

Subject References:
Customs

Hearing date: 27 August 1976
Judgment date: 1 November 1976

Sydney

---

Judgment by:
Gibbs J

The appellant was charged on indictment before the District Court of New South Wales that he

"Between 23rd day of December, 1975 and 27th February, 1976, contrary to Section 237 of the Customs Act, 1901-1975, did attempt to commit an offence against the said Act in that he attempted to have in his possession without reasonable excuse prohibited imports to which Section 233B of the said Act applied, being narcotic goods, namely cannabis and which were reasonably suspected of being imported into Australia in contravention of the said Act."

Before the jury was sworn, the appellant's counsel moved to quash the indictment on the ground that it disclosed no offence in law. The learned trial judge refused the motion. The jury was then sworn, the appellant pleaded not guilty and the trial proceeded. Before verdict, counsel for the appellant made application to reserve the question of law which arose in relation to the indictment for the consideration of the Court, pursuant to s. 72 of the Judiciary Act. At the conclusion of the trial the jury returned a verdict of guilty. The learned trial judge remanded the appellant in custody for sentence and stated a case by which the opinion of the Court of Appeal was sought on the following questions:

(a)

Did the indictment charge the accused with matters which in law constituted an offence provided for by the Customs Act 1901?

(b)

Did the indictment charge the accused with matters which in law were capable, upon proper evidence called by the Crown, of constituting an offence provided for by the said Act? (at p571)

2. The Court of Appeal answered both questions in the affirmative (1976) 1 NSWLR 511; (1976) 26 FLR 401 . The present appeal is brought by special leave from the decision of the Court of Appeal. (at p571)

3. The facts of the case are not before us and the question that we are required to answer is one of statutory construction, namely whether it is an offence to attempt to commit an offence against s.233B(1)(ca) of the Customs Act 1901 (Cth) (as amended) ("the Act"). Section 233B is one of a number of sections contained in Div. 2 of Pt XIII of the Act by which offences of various kinds are created. It is necessary to set out its provisions in full.

They are as follows:

"(1)

Any person who

(a)

without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship or aircraft, 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 exports, or attempts to export, from Australia any prohibited exports 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

(ca)

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

(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 the exportation from Australia of any prohibited exports 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 or the exportation or intended exportation from Australia of any prohibited exports to which this section applies, shall be guilty of an offence.

(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.

(1C)

Any defence for which provision is made under either of the last two preceding sub-sections in relation to an offence does not limit any defence otherwise available to the person charged.

(2)

The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.

(3)

A person who is guilty of an offence against sub-section (1) of this section is punishable upon conviction as provided by section two hundred and thirty-five of this Act.

(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."

Section 237 of the Act provides as follows:

"Any attempt to commit an offence against this Act shall be an offence against this Act punishable as if the offence had been committed." (at p572)

4. The provisions of s. 237 are quite generally expressed and they appear on their face to be intended to be applicable to an attempt to commit an offence against any other provision of the Act-including s. 233B(1)(ca). However, the question is whether the provisions of s. 233B are inconsistent with those of s. 237 and reveal an intention to exclude the application of the latter section. The question is by no means an easy one. (at p573)

5. It was submitted on behalf of the appellant that s. 233B is a code on the subject of offences in relation to narcotic goods. This submission cannot be accepted. The section shows on its face that it is not a code; it expressly requires a reference to be made to s. 235 to determine the penalties that may be imposed upon conviction for the offences which it provides (see s. 233B(3)) and it is expressly provided that s. 233B shall not prevent any person from being proceeded against for an offence against any other section of the Act (s. 233B(4)). Other offences in relation to narcotic goods are created by the Act (see ss. 231,233A). There would appear to be no reason why some other sections of the Act, which are quite generally expressed but which do not specifically refer to narcotic goods, should not apply to the offences created by s.233B (see, e.g., ss. 240, 242 and 243 which make additional provisions with regard to penalties). However, it is unnecessary for the appellant to establish that s. 233B is exclusive and self-contained. It is enough to show that it reveals an intention that an attempt to commit an offence against the provisions of par. (ca) of sub-s. (1) shall not itself be an offence. (at p573)

6. The section contains two provisions in particular which may be regarded as revealing such an intention. In the first place s.233B (1) (b) expressly makes it an offence, not only to import or export prohibited imports or exports which are narcotic goods, but also to attempt to import or export such prohibited imports or exports. If s. 237 applied to that paragraph it would either render the express reference to attempts which it contains entirely unnecessary or it would create the offence of attempting to attempt to import (or export) prohibited imports (or exports). It would be absurd to suppose that the Parliament intended to make it an offence to attempt to attempt. No other reason can be suggested for the reference to attempts in par. (b) if s. 237 applies to the section. The statute is not like that considered in Reg. v. Miller (1972) VR 771 where the inclusion of an express reference to an attempt of a particular kind was held to be explained by an intention to make such an attempt a felony rather than a misdemeanour, and thus to be insufficient to justify a conclusion that attempts to commit other acts referred to in the statute were not intended to be misdemeanours (1972) VR, at pp 776-777. The words "or attempts to import" and "or attempts to export" in s. 233B(1)(b) will thus be quite superfluous if s. 237 applies to s. 233B. As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains. The express mention of attempts in s. 233B(1)(b) therefore suggests that it was not intended that s. 237 should apply to the offences created by that section or that attempts to do the acts prohibited by the paragraphs of s. 233B(1) other than par. (b) should constitute offences. This indication is by no means conclusive, since not every draftsman is able completely to avoid surplusage and the explanation of the reference to attempts in par. (b) may be that, because of a looseness in drafting, ss. 237 and 233B(1)(b) to some extent overlap. (at p574)

7. There is a second consideration that supports the view that s. 237 does not apply to the offences created by s. 233B. The defences for which sub-ss. (1A) and (1B) of S. 233B provide are only available on a prosecution for an offence against par. (c) or par. (ca) of sub-s. (1) of s. 233B. They are not available on a prosecution for an offence against s. 237. That section itself creates an offence - it does not merely have the effect that an attempt to commit an offence against another section of the Act becomes an offence against that other section of the Act. It would therefore not be a defence to a charge of the kind laid in the present case for the defendant to prove that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of the Act. Similarly, it would not be a defence to a charge of attempting to commit an offence against the provisions of s. 233B(1)(c) to prove that the offender did not know that the goods in his possession had been imported into Australia in contravention of the Act. It is unnecessary to decide whether the inclusion of sub-s. (1B) was necessary to render s. 233B(1)(ca) a valid enactment. I expressed my own tentative opinion on the subject in Milicevic v. Campbell (1975) 132 CLR 307 , at p 315, but the Court did not finally decide the question. On any view, however, the defences provided by sub-ss. (1A) and (1B) of s. 233B must have been regarded by the Parliament as important safeguards against injustice that might otherwise have been occasioned by the width of the provisions of pars (c) and (ca) of s. 233B(1). It would be expected that similar safeguards would be provided if attempts to commit offences against pars (c) and (ca) were themselves offences. It is unlikely that it was intended that a person should be convicted of the offence of attempting to commit an offence against par. (c) if he proved that he did not know that the goods in his possession had been imported into Australia in contravention of the Act or that a person should be convicted of attempting to commit an offence against the provisions of par. (ca) if he proved that the goods were not imported into Australia or were not imported into Australia in contravention of the Act. It is of course possible that the omission to provide that the matters mentioned in pars (1A) and (1B) should, where appropriate, be defences on prosecutions for offences against s. 237 was due to mere inadvertence. However, the fact that no such defence is provided strengthens the view that it was not intended that s. 237 should apply to offences against s. 233B. (at p575)

8. It was also submitted on behalf of the appellant that in the nature of things there cannot be such an offence as attempting to have in possession. It is of course obvious that it is possible to attempt to obtain or acquire possession of something. The words "has in his possession" are not synonymous with "gets possession of"; the latter expression connotes activity, the former a state of affairs. In Reg. v. Grant, Mahon J. said (1975) 2 NZLR 165, at p 169:

"But to be in possession or to have an article in possession is neither an act nor omission. It represents not an act but the passive consequences of a prior act, namely, the act of acquisition of possession..."

In that case it was held that there is no offence known to the law of New Zealand of attempting to have possession of a narcotic. Under the Narcotics Act 1965 (N.Z.) it was an offence for a person, except pursuant to a licence or as otherwise permitted by regulations, to "have any narcotic in his possession" for certain specified purposes. By s. 72 of the Crimes Act 1961 (N.Z.) it was provided (inter alia) that "Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended...". It was held that "act" in s. 72 refers to the commission of an act as opposed to the acquisition of a criminal status and that "the only act of the offender capable in the abstract of description as an attempt is the act of acquiring or procuring possession, which is the very act by which the crime is consummated, whether the act referred to in s. 72 is, by implicit definition, an act antecedent to the commission of the substantive crime...". The appellant sought to apply similar reasoning to ss. 233B(1)(ca) and 237. It would not be right to express any view as to the correctness of the decision in Reg. v. Grant (1975) 2 NZLR 165, which may depend on the particular words of the New Zealand statutes. However, if a legislature provided in terms that it should be an offence to attempt to have possession of a narcotic there would in my opinion be no difficulty in giving effect to the intention so expressed. An act which would constitute an attempt to get possession of a narcotic would in those circumstances also be regarded as constituting an attempt to have possession of the narcotic. I am unable to agree that the only act which would be capable of being described as an attempt to have possession would be the act of getting possession. If the Customs Act manifests an intention to create the offence of attempting to have possession of prohibited imports there seems to me no difficulty in giving effect to that intention.

Indeed, such an intention does appear to be revealed by ss. 233(1)(d) and 237 in conjunction. There appears to be nothing in the provisions of s. 233 which would indicate an intention to exclude the application of s. 237. It may be thought that the existence of provisions making it an offence to attempt to have possession of prohibited imports that are not narcotic goods supports the view that the Parliament would also have intended to make it an offence to attempt to have possession of prohibited imports which are narcotic goods since it would not be likely to enact in relation to narcotic goods prohibitions which were less extensive and less likely to be effective than those enacted in relation to other goods. It is unnecessary to consider whether s. 233(1)(d) is constitutionally valid, or whether its provisions should be read down to preserve their validity (see Milicevic v. Campbell (1975) 132 CLR, at pp 314-315), but its presence in the Act does provide some assistance for the argument that s. 237 was intended to apply to s. 233B also.

On the other hand, the respective provisions made by ss. 233 and 233B, with respect to goods that are not, and those that are, narcotics are not in all respects the same. (at p576)

9. The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563 , at pp 567-568; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. In the case of the present statute the two considerations to which I have referred do in my opinion raise a real doubt as to the meaning of the enactment. It is doubtful whether the legislature intended to extend the provisions of s. 237 to those of s. 233B when the effect of such an extension would be that some words of the latter section would be surplusage and that an important defence available to those charged with committing the offence itself described in s. 233B (1) (ca) would be denied to those charged with attempting to commit that offence. It cannot in my opinion be said to be clear that a construction which would render s. 237 applicable to s. 233B is better calculated to give effect to the apparent intention of the legislature than one which would render that section inapplicable. I have already pointed out that it would be unnecessary and inappropriate to apply s. 237 to par. (b) of s. 233B(1). Although it is no doubt theoretically possible to attempt to fail to disclose knowledge (see par. (e)) it is not very likely that the Parliament regarded it as necessary to create an offence of that kind. Similarly, although the Parliament might, if it deemed it necessary, make it an offence to attempt to aid, abet, counsel or procure, or be in any way knowingly concerned in, the importation into Australia of prohibited imports (see par. (d)), it is not self-evident that such an extension of criminal responsibility would be thought necessary to achieve the purposes of the Act. The remaining paragraphs, (a), (c) and (ca), all have, as an element of the offences created, the circumstance that the offender has narcotic goods in his possession. Speaking generally it is not in itself harmful to have possession of drugs but it might understandably be thought necessary to make it an offence to have possession, for the purpose of preventing evasions of the evident purposes of the statute. However, it is not so obviously necessary to take the further and more drastic step of making it an offence to attempt to have narcotic goods in possession. In some circumstances, conduct that might be regarded as an attempt to have possession of narcotic goods would constitute an offence against other provisions of s. 233B. Of course a court is not concerned with the wisdom or desirability of the provisions of the statute, but the matters mentioned are material because the provisions of the statute are doubtful, and if a construction that would apply s. 237 to the provisions of s. 233B was clearly better calculated to give effect to the intention revealed in the Customs Act than one which denied its application, that would provide a reason why the construction should be adopted even though it enlarged the scope of the penal statute. (at p577)

10. In the end, I have reached the conclusion that the considerations to which I have referred, and which suggest that s. 237 is not intended to apply to s. 233B, have not been outweighed by any indications of a contrary intention. The effect of the provisions at the least remains doubtful and that doubt should be resolved in favour of the liberty of the subject. For the reasons given, I find myself unable to agree with the conclusion which was reached by the Court of Appeal as to the effect of these difficult provisions. I consider that the indictment did not charge an offence known to the law. (at p578)

11. The second of the questions asked appears merely to be repetitive of the first, and it seems clear that it does not require us to consider whether the appellant might have been charged with some other offence against the Customs Act; we could not consider that question, since the facts are not before us. I would allow the appeal and answer in the negative both questions stated for the opinion of the Court. (at p578)