He Kaw Teh v The Queen

Facts

He Kaw Teh was convicted of two offences under the Customs Act 1901 (Cth): importing a prohibited import (heroin) and being knowingly concerned in that importation. He was found in possession of a suitcase containing a false bottom concealing heroin, but maintained he was unaware of the drugs. The central question was whether the prosecution was required to prove mens rea as an element of each offence.

Issues

1. Whether the offence of importing a prohibited import under the Customs Act 1901 (Cth) s 233B(1)(b) required proof of mens rea, specifically knowledge that the goods were a prohibited import. 2. Whether strict liability or absolute liability applied to either offence by virtue of clear legislative intent. 3. The proper approach to statutory construction when determining whether a criminal offence displaces the common law presumption of mens rea.

Holding

The High Court allowed the appeal, holding that the offence of importing a prohibited import required proof that the accused knew the goods were a prohibited import, and that the presumption in favour of mens rea had not been displaced by the Customs Act 1901 (Cth).

Ratio decidendi

There is a common law presumption that mens rea is an element of every criminal offence, and that presumption is not displaced merely because a statute is silent on the mental element; clear and unambiguous legislative intent — express words or necessary implication from the statutory context, subject matter, and consequences of the offence — is required before a court will construe a criminal provision as imposing strict or absolute liability.

Obiter dicta

Brennan J drew a distinction between 'strict liability' (where the prosecution need not prove mens rea but the accused may raise honest and reasonable mistake of fact as a defence) and 'absolute liability' (where no mental element need be proved and no such defence is available), emphasising that the latter requires even stronger legislative indication to displace the presumption. The majority also observed that the gravity of the penalty is a significant contextual factor in determining whether Parliament intended to exclude mens rea.

Significance

He Kaw Teh v The Queen is the leading High Court authority on the presumption of mens rea in Australian criminal law, establishing the framework for analysing whether a statutory offence imposes strict or absolute liability, and is routinely applied in the construction of Commonwealth and State criminal provisions.

Key authorities

• Sweet v Parsley Sweet v Parsley [1970] AC 132applied
• Proudman v Dayman Proudman v Dayman (1941) 67 CLR 536applied
• Viro v The Queen Viro v The Queen (1978) 141 CLR 88considered
• R v Warner R v Warner [1969] 2 AC 256considered
• Lim Chin Aik v The Queen Lim Chin Aik v The Queen [1963] AC 160considered
• Sherras v De Rutzen Sherras v De Rutzen [1895] 1 QB 918cited