HIGH COURT OF AUSTRALIA

Dixon C.J., Kitto, Taylor, Menzies and Owen JJ.

 

 

 

THE QUEEN v. REYNHOUDT

(1962) 107 CLR 381

4 May 1962

 

 

Criminal Law

Criminal law—Assaulting a member of the police force in the due execution of his duty—Mens rea—Whether necessary to prove intent in relation to all elements—Statutory offence—Crimes Act 1958 (Vict.), s. 40.

Decisions


May 4.
The following written judgments were delivered:-
DIXON C.J. This is an application by the Attorney-General of Victoria for special leave to appeal from an order of the Supreme Court of Victoria sitting as a Court of Criminal Appeal. The order quashed the conviction of the prisoner upon the third count of an indictment or presentment and directed a new trial thereon. Upon two counts his conviction stood. The third count alleged that on 27th July 1961 the prisoner assaulted Warwick Sydney Shaw, a member of the police force, in the due execution of his duty. Upon the first count the prisoner was convicted of armed robbery on that date and he was sentenced to five years imprisonment. On the second count he was convicted of assaulting a person (a civilian) with intent to resist lawful apprehension and was sentenced cumulatively to one year. These two convictions are not in question. Upon the count that is in question the prisoner received a cumulative sentence of an additional year. The three counts related to successive steps in one transaction and once the story of the prosecutor or prosecutors was accepted as to the two earlier steps, a conviction on the third count seemed almost certainly to follow. However, the learned Chairman of General Sessions before whom the prisoner was tried directed the jury upon that count in accordance with a decision of the Supreme Court which, although recently given by a court of three judges, had since been overruled by a court composed of five judges, a thing of which the Chairman was unaware: Reg. v. Galvin (No. 1) (1961) VR 733 ; Reg. v. Galvin (No. 2) (1961) VR 740 . (at p385)

2. In the circumstances of the case and in view of the verdict on the first and second counts I doubt whether the nature of the direction mattered much but the Attorney-General, regarding the difference between the two interpretations placed in the respective cases of Galvin upon the provision forming the basis of the charge as important, took the occasion to seek special leave to appeal in order that the meaning and effect of the provision should be reviewed. The question is simply what sort of guilty mind is required by the words "assaults . . . any member of the police force in the due execution of his duty". The first court in Galvin's Case (1961) VR 733 , consisting of Gavan Duffy, Sholl and Adam JJ., said in effect that it was enough to commit an assault on a person (with the state of mind which that connotes): if he turned out to be a policeman and to be in the due execution of his duty then the offence was made out although the defendant had been unaware of the fact. The majority of the second court in Galvin's Case (1961) VR 740 (O'Bryan, Dean and Hudson JJ.) however took the view, stating it in my own words, that at least the chance of his being a policeman must be foreseen by the person committing the assault when he did it. Barry J. went further and held that the defendant must be aware that the man he assaultted was a policeman and was in the execution of his duty. Sholl J. dissented, holding that the view he had adopted in the first Galvin Case (1961) VR 733 was the correct one. It is perhaps proper to add that no one denied that a defendant might set up honest and reasonable mistake but the facts in which he honestly and reasonably believed must be such as would make his act innocent, e.g. a justification of the assault. The question in a sense is one of interpreting a statutory provision; in another sense one of applying common law doctrine to a statute dealing with crime, the common law doctrine contained in Lord Kenyon's brief statement of the cardinal rule that "the intent and the act must both concur to constitute the crime": Fowler v. Padget (1798) 7 TR 509, at p 514 (101 ER 1103, at p 1106) . The offence charged under the third count is expressed in what is now contained in s. 40 of the Crimes Act 1958. The section is as follows: "Whosoever assaults any person with intent to commit felony, or assaults resists or wilfully obstructs any member of the police force in the due execution of his duty or any person acting in aid of such officer, or assaults any person with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than two years". It is a provision taken from the Offences against the Person Act, 1861 (24 &25 Vict. c. 100) s. 38, of the United Kingdom and was incorporated in the law of Victoria by the Criminal Law and Practice Statute 1864 (No. 233). Apparently little difficulty has been experienced in administering the enactment until the question arose in Galvin's Case (1961) VR 733, 740 . Perhaps it had never before become necessary to examine the particular words with which we are concerned in an abstract way. For probably it is rarely necessary to tell a jury more than what particular fact or facts which are actually controverted in the case must be found by the jury in order to authorize a verdict of guilty, the prisoner being charged with assaulting a member of the police force in the due execution of his duty. However, Galvin's Case (1961) VR 733, 740 has brought forth a number of carefully reasoned judgments upon the subject in which all the sources of authority are fully marshalled from which a conclusion may be deduced and the arguments are stated bearing one way or the other. It seems to me that enough if not more than enough has been said upon what is after all a very narrow question, and sitting in this Court I shall assume an authority to state my conclusion with a brief indication of what immediately moves my mind to adopt it. I shall then say why the considerations relied upon for the contrary view have not governed my opinion. (at p386)

3. My conclusion is that to be guilty of the offence of assaulting a member of the police force in the due execution of his duty the intent of the supposed offender must go to all the ingredients of the offence. I do not of course use the word intention to refer to the consequences of an act or the desire that a result shall ensue but simply to the commission of what I regard as a compound offence. The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence and I think that the guilty mind should go to the elements of which it is composed. I do not propose to discuss what is, I hope, a merely abstract and not very practical question, namely the degree of advertence to each constituent element making up the offence that may suffice. Assault is of course an intentional act and in the case of the aggravated assault included in s. 40 the intention must extend to the elements forming the whole offence. Otherwise the assault committed will remain a common assault. Curiously enough the maximum penalty will be the same, under s. 37, but that is an accident of history. But it seems to me that the general doctrine that a guilty mind is needed is not satisfied or fulfilled by a mere reliance on the intent necessary to the assault independently of the additional elements of the crime. In short, I agree in the statement by which the majority of the Court in the second Galvin Case (1961) VR 740 summarized their view, - "The mental element, in our opinion, is the intention to do the whole act which is prohibited" (1961) VR, at p 749 . A primary consideration justifying this view is, I think, the nature of the prima facie principle of the common law, the natural application of the principle to the provision and the absence of anything to rebut it. But a powerful confirmation of the view appears to me to lie in the text of the whole section. For if it is read as a whole there can, I think, be seen in the association of offences it enumerates, the phrases in which it describes them and in their general character an almost necessary reference in all of them to guilty intention. (at p387)

4. I turn now to a short statement of why I attach little or no importance to the considerations which are said to support an opposite view. In the first place I do not think the suggestion carries much weight that the interpretation I would place upon the provision puts the police who enforce the law in a difficulty. It appears to me that whatever a man may say about it on his trial, the facts will speak for themselves and if the man is acquitted it will be for some other reason. It does not mean that abstract directions are to be given to juries about nice psychological or epistemological distinctions. In the next place I am not moved by the fact that Mr. Russell Gurney Q.C. as a Recorder said in 1865 that the charge was not assaulting them knowing them to be in the execution of their duty but assaulting them being in the execution of their duty. Nor am I moved by the fact that in a judgment in Prince's Case (1875) LR 2 CCR 154, at p 176 , in which a large number of judges concurred, Bramwell B. mentions the fact by way of illustration of his views. As authority Brett J.'s evident disapproval (1875) LR 2 CCR, at p 169 is perhaps as weighty, although he was a lonely dissentient. Lord Alverstone's reference to the case in R. v. Maxwell (1909) 2 Cr App R 26 seems to me to carry its authority no further. Indeed references such as these do not seem to me to provide this Court with ground upon which to found its decision. (at p388)

5. As to the fact that since 1865, the date of Forbes' Case (1865) 10 Cox CC 362 , the Victorian Parliament has consolidated the Crimes Act four or five times and has repeated the section in ipsissimis verbis, that I regard as lending no confirmation at all to the decision or pronouncement of Mr. Russell Gurney Q.C. or the text book statements made upon the strength of it. I have been unable to regard re-enactment in consolidating statutes where periodical consolidation is practised as meaning anything at all as to judicial decisions upon the provisions repeated in the consolidation. In any case the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of law-making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed. I note that Lord Radcliffe describes it as "an almost mystical method of discovering the law": Galloway v. Galloway (1956) AC 299, at p 320 . (at p388)

6. Perhaps I should add that my opinion is formed independently of the Canadian case of Reg. v. McLeod (1954) 111 Can Crim Cases 106 decided by the British Columbia Court of Appeal but the treatment in that case of Mr. Russell Gurney's ruling may be added to that of Dr. Glanville Williams (Criminal Law - General Part, 2nd ed. (1961) pp. 192-194) to show that it is by no means uniformly accepted. (at p388)

7. In my opinion the decision of the Supreme Court is correct and on that ground special leave should be refused. (at p388)

KITTO J. I am of the like opinion. The respondent was convicted of the crime, provided for by s. 40 of the Crimes Act 1958 (Vict.), of assaulting a member of the police force in the due execution of his duty. The Court of Criminal Appeal quashed the conviction on the ground that the presiding judge had omitted to give the jury a necessary direction and had given them a direction which was erroneous. The direction which was held erroneous was, in effect, that if the Crown established the fact of the assault, including the intention necessary for the crime of assault, and established also that the person assaulted was a policeman in the due execution of his duty, the respondent should be convicted unless he satisfied the jury on the balance of probabilities that he believed on reasonable grounds that the man he was assaulting was not a policeman so acting. The direction which should have been given, according to the view which has so far prevailed, was that the onus lay upon the Crown to establish that the respondent, in doing the acts charged, not only intended to assault a person who in fact was a member of the police force acting in the due execution of his duty, but intended to assault such a person so acting; that is to say, that the intention required for the commission of the offence extended to all three of the elements of which it is composed. (at p389)

2. With great respect to those who differ, I am of opinion that the decision was right. It does not mean that the Crown had to prove that the respondent knew that the person he was assaulting was a policeman in the due execution of his duty. Consistently with the decision the necessary intention might have existed though the respondent hoped, or even believed, that the person was not a policeman or was not at the time in the due execution of his duty, provided only that his intention extended to doing to that person what in fact he did to him even if the fact should be that he was a policeman in the execution of his duty. Advertence to the possibility of his being such a policeman is, I think, required, but not knowledge. (at p389)

3. A defence of honest and reasonable mistake might, of course, have succeeded even though the intention requisite for guilt had been found. Thus, if the respondent had satisfied the jury on a balance of probabilities that he honestly and on reasonable grounds believed in the existence of facts which, if they had existed, would have made what he did to the police officer no assault at all, he must have been acquitted. But that is because he would have established a substantive defence, and not because the Crown would have failed to prove that he had the state of mind necessary for the crime. (at p389)

4. The case of Reg. v. Forbes and Webb (1865) 10 Cox CC 362 should, I think, be put on one side. The only point taken and decided in that case was that knowledge that the person assaulted was a peace officer in the due execution of his duty was not a necessary part of the Crown case. With that I would agree; but it has never been decided, in that case or in any other so far as I have seen, that the intention necessary for the commission of the crime is simply the intention that is necessary for common assault. It is true that according to the report of the case the Recorder who decided it said that the offence was assaulting officers "being in the execution of their duty" and not assaulting them "knowing them to be in the execution of their duty"; but it is surely impossible to suppose that any of the learned judges who have since accepted the decision could have considered that identification of the state of mind necessary for the crime calls for nothing but a reading of the words of the Act. What was done in the framing of the prototype of s. 40 was to take an existing crime which involved a mental element, describe it merely by its name, leaving the requisite intention connoted but unexpressed, and add words referring to certain objective facts which, if (and only if) the intention extended to them, would make the offence specially blameworthy and specially appropriate for deterrent treatment. Is not the requirement of intention, then, to be understood as extended accordingly? The presumption, after all, is that an intention to do that which is proscribed - the whole of it - must be found before acts satisfying the descriptive words of the enactment will be held to constitute the crime it creates. Where the crime is described as the doing of specified acts in specified circumstances, the presumption would be most oddly limited if it did not mean that an intention is required not only to do the specified acts but to do them in the circumstances which combine with them to make the crime. (at p390)

5. I add only that an argument based upon the presence of the word "wilfully" in the collocation "assaults resists or wilfully obstructs" was in my opinion correctly answered in the majority judgment in the Court of Criminal Appeal. (at p390)

6. For these reasons I would refuse the Crown's application for special leave to appeal. (at p390)

TAYLOR J. Section 40 of the Crimes Act 1958 (Vict.) provides, inter alia, that whosoever assaults any member of the police force in the due execution of his duty shall be guilty of a misdemeanour. The respondent was convicted of this offence it having been proved upon his trial that he assaulted a constable of police whilst the latter was attempting to arrest him according to law. But upon appeal to the Court of Criminal Appeal it was contended that the trial had miscarried because the Chairman of General Sessions had instructed the jury that it was not incumbent upon the prosecution to prove that the accused knew, at the time, that the person whom he was alleged to have assaulted was an officer of the police force. Once the assault was proved it was sufficient, the learned Chairman said, "for the Crown to prove he was, in fact, a policeman and that he was acting in pursuance of his duty". Having regard to the circumstances relating to the several offences of which the accused was found guilty it is unlikely in the extreme that the jury would have had any doubt that he knew that the person whom he assaulted was an officer of police acting in the due course of his duty. But the issue of knowledge on the part of the respondent was not left to the jury and the Court of Criminal Appeal quashed the conviction on the charge referred to. (at p391)

2. The Court took this course because of the earlier, and then very recent, decision of a majority of the Court in Reg v. Galvin (No. 2) (1961) VR 740 which, in turn, overruled the decision of the Court in Reg. v. Galvin (No. 1) (1961) VR 733 . In the earlier case the Court had held that in order to substantiate the charge upon which the present respondent was arraigned it was sufficient for the Crown to prove an assault upon a person who was proved to have been at the time of the assault a member of the police force then acting in the due execution of his duty as such a member. Nevertheless the decision conceded the right of a person charged with such an offence to exculpate himself by establishing "on the balance of probabilities that he acted reasonably in the bona fide belief, based on reasonable grounds, that the police officer was in fact unlawfully assaulting or otherwise interfering with him . . . and that, had the facts been as the accused supposed them to be, his own actions would have been lawful and innocent" (1961) VR, at p 738 . In the second Galvin Case (1961) VR 740 a Court of five judges was especially assembled to reconsider the earlier decision and a majority of the Court rejected the view which had been taken earlier. In substance they held that it was of the essence of the offence charged that the accused should have intended "to assault a police officer in the due execution of his duty". "In most cases", they said, "this intent would be proved by evidence that he knew it was a policeman and supposed that he was acting in the due execution of his duty. But knowledge in the strict sense may not be necessary in all cases. For example, if an evilly disposed person were to say - 'This fellow looks like a policeman on duty, I hate all policemen, I will assault him'. If he acted on this intention he would in our opinion have the necessary mens rea to be guilty of this offence, not because he actually knew his victim to be a policeman, but because he intended to assault a policeman in due execution of his duty, and if the necessary actus reus were proved, viz. that the assaulted person was in fact a member of the police force in the due execution of his duty, full guilt could be proved" (1961) VR, at p 748, 749 . The offence with which the respondent was charged is one of several offences created by the words "Whosoever . . . assaults resists or wilfully obstructs any member of the police force in the due execution of his duty . . . shall be guilty of a misdemeanour . . . " and, at a later stage, their Honours observed that "the onus is on the Crown from first to last to prove that the intention of the accused was in one case to assault a policeman who was acting in the due execution of his duty, in the second case to resist a policeman so acting, and in the third case to obstruct a policeman so acting" (1961) VR, at p 750 . They then reiterated the proposition that a man may intend to assault a policeman without knowing that he is a policeman: "He may", they said, "believe his victim to be a policeman acting in the due execution of his duty and assault him. He would in such a case intend to assault a policeman in the due execution of his duty. If the facts turned out to be otherwise, though he had the necessary mens rea, he would not be guilty of an offence under s. 40 because the actus reus was missing. If the victim were a policeman acting in the due execution of his duty he would be guilty though he did not know, but only believed, him to be a policeman" (1961) VR, at p 750 . (at p392)

3. Their Honours' view, it seems to me, rests primarily upon the proposition, as they stated it, that it is proper to assume that "the common law requirements that the assault must be intentional is to be carried forward into these aggravating elements of the new offence" (1961) VR, at p 748 . Any other conclusion, they thought, might well place the citizen in a position of grave embarrassment. Further, they did not perceive any legislative intention to displace what they called the common law rule but, on the contrary, they found in the expression "wilfully", as applied to "obstructs", an express indication that the onus is upon the Crown to establish, not only that any alleged obstruction itself is intentional, but that it is accompanied by an intent to obstruct a member of the police force in the due execution of his duty. "It was", they thought, "probably thought unnecessary to introduce any like word before 'assaults' or 'resists' because the crime of assault and the very word 'resists' already import the notion of intention" (1961) VR, at p 749 . But, to my mind, the use of the word "wilfully" before "obstructs" was intended to serve a very particular purpose and its presence in the section is of no assistance in solving the problem with which we are concerned. "Obstruction" is a much wider word than either "assault" or "resist", which expressions are themselves sufficient to define the quality of the prohibited acts, and, no doubt, it was thought to be not unimportant to make it clear that, in relation to obstruction, the section was concerned, not with all acts which might in fact constitute an obstruction, but only those which constitute intentional obstructions. That being so the presence in the composite phase of the word "wilfully" throws no reflected light on "assaults" or "resists" and provides no foundation for the construction for which the respondent contends. (at p393)

4. There is, however, much to be said for the primary and fundamental ground upon which their Honours proceeded. Indeed, as Jordan C.J. pointed out in R. v. Turnbull (1943) 44 SR (NSW) 108; 61 WN 70 - after referring to the observations of Cave J. in Reg. v. Tolson (1889) 23 QBD 168, at p 182 - there is much to be said for the proposition that if the Courts had adhered to the principle that the proof of statutory offences involved as an element of proof that the accused knew that he was in fact doing the criminal act with which he was charged, that branch of the criminal law dealing with statutory offences might be free from some of the difficulties which, on the present state of the authorities, are inevitably encountered. "If", his Honour said, "it (that principle) had been steadily insisted upon, persons sponsoring a bill by which it was sought to penalise a man for doing something, notwithstanding that he did not and could not know that he was doing it, would very soon have learned that it was necessary to disclose this on the face of the bill either in express terms or by words conveying so necessary an implication of intention in that behalf as to leave no room for doubt about their purpose. If the Legislature were prepared to allow such a provision, it would pass it; if it disapproved of it, it would strike it out. In either case, the result would be perfectly clear; the Legislature would know exactly what it was doing, and people would know exactly how they stood" (1943) 44 SR (NSW), at pp 109, 110; 61 WN, at p 71 . But, as his Honour said, that course had not been followed and he made reference to the "multitudes of reported cases . . . many of them irreconcilable, in which the common law rule has been treated as excluded or not excluded upon judge-made indicia derived from cases in which there has often been a difference of opinion as to so-called necessary implications" (1943) 44 SR (NSW), at p 110; 61 WN, at p 71 . However in my view it is difficult, for reasons which will appear, to say that the legislature failed to make its meaning clear when it enacted s. 40. (at p394)

5. In order to constitute an assault within the meaning of the section the act which is charged as the assault must, of couse, be shown to have been intentional and there is no doubt that the facts proved upon the respondent's trial constituted the plainest evidence of an assault upon the constable. This, of course, means that the proved facts provided evidence that the respondent, whom I shall call R, intended to use actual physical force against C, the constable. The decision in Galvin (No. 2) (1961) VR 740 concedes that if R knew that C was a constable then the facts provided sufficient evidence of an intention to assault a constable in the due execution of his duty. But, according to that decision, it was not incumbent upon the Crown to prove actual knowledge on the part of R; as I understand their Honours' reasons it was sufficient if he believed, or thought, that C was or might be, a constable. However, if he neither knew nor believed that C was a police officer, the mere fact that he assaulted C would provide no foundation for a finding of the necessary intent; in that case, it seems, R's intention must have been taken to have been an intent to use physical force unlawfully against C, not as a police officer, but, merely, as an individual. In such circumstances the Crown case would necessarily fail. I confess that I find some difficulty with these propositions. If R can be said to have assaulted C it is because he unlawfully threatened to inflict on or in fact used physical force on C. Strictly such a use of physical force is a battery but traditionally the expression used in s. 40 is sufficiently appropriate to include a battery. In such a case proof of the use of unlawful force would provide ample foundation for a finding that R intended to assault C. But is R's intention in relation to the assault itself of a different character or quality if he assaults C because, mistakenly perhaps, he believes or thinks, but does not know, that C is, or may be, a police officer. His belief may well be the reason for his unlawful action in exactly the same way as it would be if he assaulted C because he wished to relieve him of his wallet, but his intention is to assault C. In either case, of course, the accused may be said to have an accompanying intent. He may in the one case commit the assault with intent to rob; in the other he may assault a police officer with intent to interfere with him in the performance of his duties. And this intent may be proved either directly or inferentially by showing that the accused knew that his victim was a police officer engaged, or apparently engaged, in the performance of his duties. To my mind it is with a specific intent of this character that the majority of the Court were essentially concerned. But I find it impossible to justify the introduction of such an element into the offence created by the section. No doubt the purpose of s. 40 was to prevent any such interference but this general consideration provides no ground for supposing that it was intended to extend only to those cases where such a specific intent was shown to exist and not to assaults on members of the police force committed in ignorance of the victim's membership of that force but recklessly or indifferently and without regard to whether the victim was a member of the police force or not. (at p395)

6. The history of the provision with which we are concerned is traced in the judgment of my brother Owen and he has referred to like English legislation which the Victorian legislature adopted. What emerges is that legislation which is for all material purposes identical with the provision with which we are concerned has been in operation in Victoria for nearly one hundred years. The relevant provisions were the subject of consolidating re-enactments in 1890, 1915, 1928 and finally in 1958. For a like period in England decisions have stood which have accorded a fixed interpretation to provisions similar to those with which we are concerned. The first of these - Reg. v. Forbes and Webb (1865) 10 Cox CC 362 - was a case where the accused were indicted for assaulting two constables in the execution of their duty and the submission was made that, since there was no evidence in the Crown case tending to show that the accused knew that the victims were police officers, the case should be withdrawn from the jury. The submission was rejected, the Recorder observing that "The offence was, not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execution of their duty". Standing by itself the decision may not be of the greatest authority but apart from Galvin (No. 2) (1961) VR 740 and two other cases - one in South Africa and one in Canada which I shall presently mention - it has never been questioned by the decision of any court. On the contrary, some ten years later it was quite plainly approved in a judgment prepared by Bramwell B. and to which Kelly L.C.B., Cleasby B., Grove J., Pollock B., and Amphlett B. assented. Then, in 1909, its authority was expressly reserved in R. v. Maxwell and Clanchy (1909) 2 Cr App R 26 and, finally, it was followed by Maxwell Turner J. in Reg. v. Mark ((1961) Crim. Law Review 173). In the lastmentioned case it was expressly said, in relation to the facts of that case, that the accused was entitled to be acquitted if he showed that he had acted with the genuine belief, honestly and reasonably held, that the person assaulted was in the act of committing a felony or breach of the peace. This ruling was in accord with what Professor Paton calls the "liberal approach" (Paton - Jurisprudence p. 371), that is to say that mens rea is not entirely "eclipsed" (cf. Chajutin v. Whitehead (1938) 1 KB 506 ) and what Dixon J. in Thomas v. The King (1937) 59 CLR 279, at pp 303, 304 called the Mikado rule does not apply, but that the accused will be entitled to an acquittal if he makes out the defence of mistake on reasonable grounds. The same principle was applied by this Court in cases such as Maher v. Musson (1934) 52 CLR 100 and in England in Sherras v. De Rutzen (1895) 1 QB 918 . (at p396)

7. On many occasions the failure of the legislature to make its meaning plain has been justifiably deplored but, to my mind, such a complaint is without validity when the legislature has adopted language to which a specific and precise meaning has been assigned without serious question for a great many years. This, of course, is precisely the position in this case and I find it impossible now to say that on the various occasions when the substance of s. 40 has been enacted and re-enacted the legislature intended something other than its settled meaning. The South African and Canadian cases to which I referred previously - R. v. Wallendorf (1920) Sth Af LR App Div 383 and Reg. v. McLeod (1954) 111 Can Crim Cas 106 - have, however, adopted a different interpretation. But there is some divergence between the views expressed in those two cases and also between those decisions and the views expressed in the decision of the Court of Criminal Appeal in Victoria in the Galvin Case (No. 2) (1961) VR 740 . I have had the opportunity of reading what my brother Owen has said about these cases and I agree with his observations. They do not, in my view, afford any ground for departing from the fixed meaning which the English authorities have given to legislation in the form of s. 40. In the circumstances, I am of the opinion that special leave should be granted and the appeal upheld. (at p396)

MENZIES J. It is a misdemeanour punishable by imprisonment for a term of not more than two years to assault, to resist or wilfully to obstruct any member of the police force in the execution of his duty: Crimes Act 1958 (Vict.) s. 40. The particular question for decision is whether, in charging the jury at the trial of the respondent for the offence of assaulting, it was an error for the learned Chairman of General Sessions to have directed the jury in accordance with a construction of the section which warrants conviction if the Crown proves no more than an assault upon a policeman in the due execution of his duty and treats an honest belief held by the accused upon reasonable grounds in facts which, if true, would have justified his acts as a defence that it is for the accused to raise and prove, at least initially. The direction given was in conformity with Reg. v. Galvin (No. 1) (1961) VR 733 (Gavan Duffy, Sholl and Adam JJ.) but was not in conformity with Reg. v. Galvin (No. 2) (1961) VR 740 where a second Court of Criminal Appeal (O'Bryan, Barry, Dean and Hudson JJ.; Sholl J. dissenting) overruled the earlier decision and decided that a direction given in accordance with it was contrary to law. The learned Chairman was aware of the first decision delivered on 24th April 1961 but was not aware of the second decision given on 3rd August 1961. (at p397)

2. Upon an appeal by the present respondent from his conviction, the Court of Criminal Appeal followed Reg. v. Galvin (No. 2) (1961) VR 740 and quashed the conviction. It is from this order that the Crown seeks special leave to appeal. (at p397)

3. The origin of the enactment under consideration seems to have been 9 Geo. IV c. 31 but the enactment took its present form in 1864 when s. 34 of the Criminal Law and Practice Act was taken from 24 &25 Vict. c. 100 - the Offences against the Person Act, 1861 - s. 38. (at p397)

4. In 1865 in Reg. v. Forbes and Webb (1865) 10 Cox CC 362 the Recorder at the Central Criminal Court (Russell Gurney Q.C.) had in a trial for offences against s. 38 of the Offences against the Person Act, 1861 ruled that even if the prisoners did not know that they were constables they were assaulting, there was nevertheless a case to go to the jury and said: "The offence was, not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execution of their duty". This ruling was, I consider, referred to with approval by six judges in Reg. Prince (1875) 13 Cox CC 138 for it was said: "A man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer (Reg. v. Forbes (1865) 10 Cox CC 362 ). Why? Because the act was wrong in itself" (1875) 13 Cox CC, at pp 142, 143 . Upon these authorities and upon a remark of Alverstone L.C.J. in R. v. Maxwell (1909) 2 Cr App R 26; 73 JP 176 that a divisional court consisting of himself, Channell and Walton JJ. wished to throw no doubt upon the decision of the Recorder in Forbes' Case (1865) 10 Cox CC 362 to the effect that knowledge of the prisoner that the person he had assaulted is a constable is not necessary to support an indictment under the section, a generally accepted interpretation became established as the text books and the practice books referred to by Sholl J. show. (at p398)

5. In Canada (Reg. v. McLeod (1954) 111 CCC 106 ) and in South Africa (R. v. Wallendorf (1920) Sth Af LR 383 ), however, upon sections similar to the English and Victorian legislation already referred to, it has been decided that knowledge that the person assaulted was a police officer engaged in the execution of his duty is an essential ingredient of the offence that must be proved by the prosecution. (at p398)

6. Most recently, in Reg. v. Mark referred to in (1961) Crim Law Review 173, Maxwell Turner J. directed a jury on the footing that "although knowledge that the person assaulted was a peace officer is not an ingredient of the offence under s. 38 of the Offences against the Person Act, 1861, an unlawful assault is one of the ingredients and so if the jury believed that the defendant acted under a genuine belief, honestly and reasonably held, that the person assaulted was in the act of committing a felony or breach of the peace, they should find the defendant not guilty". (at p398)

7. In concluding this review of the authorities it should be said that although most of the textbook writers accept Reg. v. Forbes (1865) 10 Cox CC 362 , Dr. Glanville Williams in his treatise Criminal Law - The General Part (1953) p. 157 writes: "The only useful comment that can be made upon Forbes is that it is a mere direction to the jury by a Recorder and is unsound". This comment, which passes over the recognition of the direction in Reg. v. Prince (1875) 13 Cox CC 138 given ten years later, is accepted by Professor J C. Smith: see The Guilty Mind in the Criminal Law ((1960) 76 L.Q.R. 78, at p. 84) and the comment to Reg. v. Mark (1961) Crim Law Review 173 (at p398)

8. In Reg. v. Galvin (No. 2) O'Bryan, Dean and Hudson JJ. expressed their view in these words: "The accused must intend to assault and he must intend to assault a policeman in the due execution of his duty. In most cases this intent would be proved by evidence that he knew it was a policeman and supposed that he was acting in the due execution of his duty. But knowledge in the strict sense may not be necessary in all cases . . . He may believe his victim to be a policeman acting in the due execution of his duty and assault him. He would in such a case intend to assault a policeman in the due execution of his duty" (1961) VR, at pp 748, 750 . On the other hand, Barry J. said: "In my opinion, the character and activity are essential ingredients in the offences, and knowledge of the existence of them must be established before an accused person may be convicted" (1961) VR, at p 752 . His Honour considered, however, that in certain cases a reckless omission to use readily available means of information and also wilful blindness may be treated as equivalent to knowledge. His Honour said: "Where an accused has recklessly ignored readily accessible sources of information, or has wilfully shut his eyes to them, the courts, for obvious reasons of policy, have refused to allow him to escape by a claim of absence of actual knowledge, and the knowledge which he could have had but recklessly or consciously abstained from acquiring may be treated as knowledge which he in fact had" (1961) VR, at p 754 . (at p399)

9. Here we are not directly concerned with the general rule that if a prima facie case has been made by the prosecution, it is a defence, the onus of proof of which is upon the accused - at least initially - to establish an honest belief upon reasonable grounds in the existence of a state of affairs which, had it existed, would have made his acts innocent. All that needs to be said is that if the offence under s. 40 is assaulting a police officer knowing him to be a police officer engaged in the execution of his duty, there would seem to be no need for this defence in the particular case; whereas if the offence is assaulting a person who in fact is a police officer in the due execution of his duty, there is ample room for it: cf. Reg. v. Tolson (1889) 23 QBD 168 and Thomas v. The King (1937) 59 CLR 279 . As the occasion for this defence of mistake is that the intention that must be proved by the prosecution falls short of establishing the accused's guilty knowledge, it follows that wherever it applies such guilty knowledge is not an ingredient of the offence. Where knowledge of any particular thing is an ingredient of the offence the onus of proving it of course lies on the prosecution, initially and throughout. I may observe in passing that it seems to me that the difference between Reg. v. Prince (1875) 13 Cox CC 138 and Reg. v. Tolson (1889) 23 QBD 168 is simply that while in both cases mens rea had to be proved and in neither was it necessary for the Crown to prove a particular element of guilty knowledge, in the former, having regard to the subject matter of the enactment creating the crime of abduction, the defence of honest mistake was regarded as inapplicable, whereas in the latter the like defence was treated as applicable to the section creating the crime of bigamy. Although the conceptions that there is no offence unless a particular specified intent is established and that honest mistake upon reasonable grounds that, if true, would leave the accused innocent may not always have been kept separate and distinct, it does seem that these are different conceptions and nowhere does it appear more clearly that the latter conception is of a defence to be proved by the accused than it does in the judgments of Dixon J. (as he then was) in Thomas v. The King (1937) 59 CLR 279 and Proudman v. Dayman (1943) 67 CLR 536 . In Bank of New South Wales v. Piper (1897) AC 383 the particular defence of honest mistake was equated to an absence of mens rea and Sir Richard Couch, speaking for Lord Watson, Lord Davey and himself, said: "It was strongly urged by the respondent's counsel that in order to the constitution of a crime, whether common law or statutory, there must be mens rea on the part of the accused, and that he may avoid conviction by showing that such mens did not exist. That is a proposition which their Lordships do not desire to dispute; but the questions whether a particular intent is made an element of the statutory crime, and when that is not the case, whether there was an absence of mens rea in the accused, are questions entirely different, and depend upon different considerations. In cases when the statute requires a motive to be proved as an essential element of the crime, the prosecution must fail if it is not proved. On the other hand, the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of the existence of facts which, if true, would make the act charged against him innocent. The case of Sherras v. De Rutzen (1895) 1 QB 918 , where the conviction of a publican for the offence of selling drink to a constable on duty was set aside by the court because the accused believed and had reasonable grounds for the belief that the constable was not on duty at the time is an illustration of its absence" (1897) AC, at pp 389, 390 . The question we are concerned with is the former, that is, whether a particular intent is made an element of the statutory crime. (at p400)

10. Nor, as I think, is this a case which raises the question whether there is an offence under the section in the absence of any mental element, for there can be no offence under s. 40 unless there is at least the intention necessary to constitute the act an assault or a resistance or a wilful obstruction and it is of some significance that where the act could exist without any accompanying intention (e.g. obstructing a policeman), it is expressly provided that it is only a wilful obstruction that is penalized. (at p400)

11. The essential question here is, therefore, not whether some intention is necessary but rather what is the intention that is necessary to constitute the physical acts as offences and, to bring the general problem down to the particular by taking one case, it can be asked whether it is only when there is evidence that it was in the mind of a person committing an assault that the person assaulted was a policeman in the due execution of his duty that a case under the section has been launched. In putting the problem in this way rather than confining it to the accused person's knowledge, I take into account the possibility recognized by O'Bryan, Dean and Hudson JJ. in Reg. v. Galvin (No. 2) (1961) VR 740 that an offence may be proved without showing that the accused knew both that the person assaulted was a policeman and was in the execution of his duty. However, ordinarily, if the prosecution must prove not only an intentional assault upon a policeman in the due execution of his duty but also a fulfilled intention to assault a policeman in the due execution of his duty, it will have to prove that the accused knew that the person he was assaulting was both a policeman and in the due execution of his duty, and it is convenient to consider the problem in this simple form. At this point it may be observed that in Reg. v. McLeod (1954) 111 Can Crim Cas 106 it seems to have been thought that proof of the facts of assault upon a policeman in the execution of his duty might carry with it the presumption of mens rea and in R. v. Wallendorf (1920) Sth Af LR 383 it was stated explicitly that although proof of knowledge that the person resisted was a constable was necessary, the Crown would make a prima facie case by proving that the accused had resisted the constable in the execution of his duty. This method of dealing with the problem seems to me to amount in practice to something little different from treating knowledge as no part of the definition of the offence but treating lack of knowledge as a defence. For this, however, I find no warrant and am inclined to agree with O'Bryan, Dean and Hudson JJ. that if their view of the meaning of the section is correct, the Crown could not launch a case merely by proving that the man who was assaulted was a policeman acting in the due execution of his duty. I do not see either as a matter of logic or experience that to prove merely that it was a policeman who was assaulted is any evidence that the person committing the assault knew, actually or constructively, that his victim was a policeman. Similarly, proof that a person was in the execution of his duty would be no evidence that this was known to the person assaulting him. I do not think that the difficulties of proof that would necessarily arise if Reg. v. Galvin (No. 2) (1961) VR 740 was correctly decided are to be overcome by introducing the kind of presumption accepted in the Canadian and South African cases which, it should be noticed, is not quite the same as the recognition of honest mistake upon reasonable grounds as a defence when, where if the facts were as they were believed to be, the act could have been innocent. It is rather to throw upon an accused person the burden of disproving an element of the offence with which he is charged. To accept an interpretation of s. 40 that requires knowledge as an ingredient of the offence and then to adopt an arbitrary rule of evidence to facilitate proof of this seems to me to import the kind of complexity that should, if possible, be avoided in cases to be tried by juries. (at p402)

12. Taking the section as it stands in its context, I have come to the conclusion that it states all the elements of the offence and it is not necessary to infer that any mental element beyond that which the words used (i.e. assault, resist, wilfully obstruct) themselves import must be established. As a matter of construction I am influenced by the use of the word "wilful" to limit the class of obstruction dealt with because this limitation would not have been necessary had an intention to obstruct a policeman in the execution of his duty been in any event essential to the definition of the offence. I also regard it as of some importance that elsewhere in the group of sections in which s. 40 stands there is to be found express reference to knowledge when it is made a necessary ingredient of the offence created. In his History of the Criminal Law of England, (1883) vol. 2, pp. 116 et seq. Sir James Fitzjames Stephen points out that the effect of ignorance as to a particular matter of fact connected with an alleged offence is a matter that varies with the definition of the particular offences and that where the legislation defining the offence is silent there is little apart from the general scope of the legislation and from the nature of the evils to be avoided to determine whether "knowingly" is or is not to be implied in the definition of a crime. Here, I think, for the reasons I have already given, that the indication of the language used is that "knowingly" is not to be implied and this is borne out by the aim of the legislation, which it may be inferred was to give policemen, whether in uniform or plain clothes, protection and freedom from interference in the discharge of their dangerous duties by imposing an additional penalty upon persons assaulting them who cannot excuse their conduct by proving honest mistake upon reasonable grounds. This conclusion is reinforced both by longstanding authority which I consider should now be followed and the re-enactment of the section in Victoria again and again after a particular interpretation had been put upon it. (at p402)

13. Although the problem here is essentially one of statutory construction and is not controlled by the course of the law in other cases, it is not without interest to notice that, at common law, malice aforethought was implied by law in a case where a person killed was in fact an officer of the law legally arresting the accused and it seems that it was not necessary to make that killing murder that the party killing should know that the person was a constable: see Hale's Pleas of the Crown, vol. 1, p. 460. (at p403)

14. Having regard, therefore, to the words of s. 40, to the object of the section and the long-standing acceptance of the view that to make a case thereunder it is not necessary for the prosecution to prove more than the facts that the person assaulted or resisted or wilfully obstructed by the accused was a police officer acting in the due execution of his duty, I consider that the decision in Reg. v. Galvin (No. 1) (1961) VR 733 was correctly decided and that the direction of the learned Chairman of General Sessions in this case was in accordance with law. (at p403)

15. Because of the difference of judicial opinion upon a matter of general importance, I consider that this is a case in which special leave should be granted and, for the reasons already given, I would allow the appeal. (at p403)

OWEN J. The Crown seeks special leave to appeal from a decision of the Full Court of the Supreme Court of Victoria sitting as the Court of Criminal Appeal which quashed a conviction of the respondent Reynhoudt upon a count in an indictment charging him with the offence, under s. 40 of the Crimes Act (No. 6231) of 1958, of assaulting a member of the police force in the due execution of his duty. The section provides that: "Whosoever assaults any person with intent to commit felony, or assaults resists or wilfully obstructs any member of the police force in the due execution of his duty or any person acting in aid of such officer, or assaults any person with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be guilty of a misdemeanour, . . . " (at p403)

2. The question on which the Crown seeks the decision of this Court is one on which there has recently been a division of opinion in the Supreme Court. It is one of undoubted importance if only because of the desirability that there should be certainty in the criminal law, particularly where the offence is an indictable one in which the judge presiding at a trial is required to explain to a jury in terms understandable by laymen what are the essential elements in the crime which must be proved by the Crown. The question for decision is the extent to which the element of mens rea is necessary to create an offence under the section. The learned Solicitor-General, who appeared in support of the application, told us that in Victoria the provision in question and its predecessors in similar language have until recently been interpreted by the courts as requiring the Crown to prove an assault or an act of resistance or of wilful obstruction; that the person assaulted, resisted or obstructed was a police officer; and that he was acting in the due execution of his duty, but that mens rea in relation to these last two essential facts is not required to be shown. And this appears to be the construction which has long been placed upon the counterpart of the section in England. In April 1961, in the case of Reg. v. Galvin (No. 1) (1961) VR 733 , the question was debated and considered by the Court of Criminal Appeal (Gavan Duffy, Sholl and Adam JJ.). Their Honours were of opinion that knowledge on the part of the accused that the person assaulted was a police officer or that he was acting in the due execution of his duty was "not part of the definition of the offence and need not be proved by the prosecution in the first instance as part of its essential case" (1961) VR, at p 738 . It was sufficient, their Honours said, for the Crown to prove an assault, that the person assaulted was in fact a police officer and that he was in fact acting in the due execution of his duty. If these facts were proved by the Crown the accused, their Honours went on to say, might nevertheless exculpate himself by showing, on a balance of probabilities, that he had "acted reasonably in the bona fide belief, based on reasonable grounds, that the police officer was in fact unlawfully assaulting or otherwise interfering with him, or, it may be, unlawfully assaulting or otherwise interfering with another person, and that, had the facts been as the accused supposed them to be, his own actions would have been lawful and innocent" (1961) VR, at p 738 . For various reasons, into which it is unnecessary to go, the Court of Criminal Appeal was of opinion that Galvin was entitled to a new trial and made an order accordingly. On the second trial the learned trial judge gave directions to the jury on this point in accordance with what the Court of Criminal Appeal had said. Galvin was convicted and again appealed to the Court of Criminal Appeal. On this occasion, Reg. v. Galvin (No. 2) (1961) VR 740 , the Court consisted of five judges (O'Bryan, Barry, Dean, Sholl and Hudson JJ.) and the decision in Reg. v. Galvin (No. 1) (1961) VR 733 was reviewed. The majority of the Court (O'Bryan, Dean and Hudson JJ.), after pointing out that the assault, resistance or wilful obstruction necessary to be proved as an element in the offence must be an intentional act, as clearly it must be, said: "Surely the common law requirement that the assault must be intentional is to be carried forward into these aggravating elements of the new offence. The accused must intend to assault and he must intend to assault a policeman in the due execution of his duty. In most cases this intent would be proved by evidence that he knew it was a policeman and supposed that he was acting in the due execution of his duty. But knowledge in the strict sense may not be necessary in all cases. For example, if an evilly disposed person were to say - 'This fellow looks like a policeman on duty, I hate all policemen, I will assault him'. If he acted on this intention he would in our opinion have the necessary mens rea to be guilty of this offence, not because he actually knew his victim to be a policeman, but because he intended to assault a policeman in the due execution of his duty, and if the necessary actus reus were proved, viz. that the assaulted person was in fact a member of the police force in the due execution of his duty, full guilt could be proved" (1961) VR, at pp 748, 749 . Barry J. was of opinion that knowledge by the accused that the person assaulted was a police officer and was acting in the due execution of his duty were essential parts of the Crown case but was unable to agree with that part of the judgment of the majority judgment which laid down that "knowledge in the strict sense may not be necessary in all cases" (1961) VR, at p 748 and which gave as an illustration the case of the evilly disposed person who committed an assault upon another not knowing that he was a policeman but hoping that he was. Sholl J., who dissented, considered that the law as laid down in Reg. v. Galvin (No. 1) (1961) VR 733 was correct. After the decision in the second Galvin Case (1961) VR 740 had been given, the respondent to the present application was put upon his trial and, in the course of it, the learned trial judge, whose attention was not drawn to the second Galvin decision (1961) VR 740 , charged the jury in accordance with what had been said in the first Galvin Case (1961) VR 733 . A conviction followed. The respondent appealed to the Court of Criminal Appeal (Herring C.J., Sholl and Little JJ.) which upheld the appeal, stating merely that the jury had been charged in a way "inconsistent with the view expressed in the second Galvin Case (1961) VR 740 . That being so, we are bound to accept that decision and give effect to it". Accordingly their Honours allowed the appeal, quashed the conviction, and ordered a new trial. (at p405)

3. Reading the relevant part of the section without regard to its history, it seems to me that the decision in the first Galvin Case (1961) VR 733 was correct. The words "assaults", "resists" or "wilfully obstructs" undoubtedly refer to intentional acts and in establishing one or other of these elements in the offence, an intent to do the act must be shown to have existed, but the section makes no reference to any requirement that the accused shall be shown to have had knowledge that the person assaulted resisted or obstructed was a police officer or that he was acting in the execution of his duty. In this respect it may be compared with s. 38 of the Act which makes it an offence to strike or offer violence or to arrest upon civil process a clergyman or other minister who is engaged in or "to the knowledge of the offender is about to engage in" the performance of his religious duties or who "to the knowledge of the offender is going to perform the same or returning from the performance thereof". When the history of the section and such English decisions as have been given on it are examined, I think the proper inference is that it was intended to bear what is, to me, its prima facie meaning. For this purpose it is not necessary to go further back than 9 Geo. IV c. 31 which by s. 25 provided that certain offences therein set out should be punishable with hard labour. Those offences included assault with intent to commit felony, assault upon any Peace Officer or Revenue Officer in the due execution of his duty or upon any person acting in aid of such Officer, and assault with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting. Section 23 of the same Act contained a provision similar to that part of s. 38 of the Victorian Crimes Act of 1958, to which I have earlier referred, which deals with the arrest upon any civil process of a clergyman while performing divine service or, with the knowledge of the arresting person, going to or returning from the performance thereof. These provisions of 9 Geo. IV c. 31 were repeated in ss. 36 and 38 of the Offences Against the Person Act of 1861, 24 and 25 Vict. c. 100, and were in turn included in the Victorian Criminal Law and Practice Act of 1864 (27 Vict. No. 233) ss. 32 and 34. Since then they have been included, with some minor alterations not relevant for present purposes, in the Victorian Consolidating Acts of 1890, 1915, 1928 and 1958. (at p406)

4. The first reported case on the point in England was Reg. v. Forbes and Webb (1865) 10 Cox CC 362 . The prisoners were indicted under s. 38 of the Offences Against the Person Act of 1861 for assaulting two police officers in the execution of their duty. The evidence was that the officers in question were in plain clothes and, at the close of the Crown case, counsel for the defence submitted that there was no case to go to the jury because there was no evidence that the prisoners knew that the persons assaulted were police officers in the execution of their duty. The Recorder, Russell Gurney Q.C., said "The offence was, not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execution of their duty" (1865) 10 Cox CC 362 and left the case to the jury. In 1875 in the much debated case of Reg. v. Prince (1875) LR 2 CCR 154; 13 Cox CC 138 Bramwell B., in a majority judgment with which Lord Chief Baron Kelly, Cleasby B., Grove J., Pollock B., Amphlett B. and Denman J. agreed, mentioned Reg. v. Forbes (1865) 10 Cox CC 362 with approval. In 1909, in R. v. Maxwell (1909) 2 Cr App R 26 , Forbes' Case (1865) 10 Cox CC 362 was again discussed when the point was taken that there was an absence of knowledge in the accused that the person assaulted by him was a police officer in the execution of his duty. The Court thought that there was evidence of knowledge and what followed was therefore obiter. Lord Alverstone L.C.J. said, however, "In Forbes and Webb, Russell Gurney, Recorder of London, laid it down that knowledge that the person assaulted was a police officer was not necessary to sustain an indictment for assaulting a constable in the execution of his duty. That decision has never been doubted, and we throw no doubt on it". Further, as Sholl J. pointed out in his judgment in Reg. v. Galvin (No. 2) the construction adopted in Reg. v. Forbes (6) is stated as being the law in many of the standard text books on the criminal law. See Archbold: Criminal Pleading &Practice 34th ed. (1959) p. 23, 1042; Roscoe's Criminal Evidence 16th ed. (1952) p. 379; Russell on Crimes 11th ed. (1958) vol. 1, p. 764; and is similarly stated in Halsbury's Laws of England 3rd ed. vol. 10, pp. 274, 275. That this is still regarded as the law in England is shown by the recent case of Reg. v. Mark (1961) Crim. Law Review 173, in which it appears to have been held that knowledge that the person assaulted was a peace officer was not an ingredient of the offence but that the person charged was entitled to be acquitted if he showed that he had acted with a genuine belief, honestly and reasonably held, that the person assaulted was in the act of committing a felony or breach of the peace. It should be added that the same interpretation appears to have been adopted in New South Wales (see Hamilton &Addison 6th ed. (1956) p. 79). (at p407)

5. If the fact is, as it appears clearly enough to be, that at least since 1864 the courts in England have acted upon the rule as stated in Forbes' Case (1865) 10 Cox CC 362 and the fact is also, as it is stated to be, that the same course was followed in Victoria until the decision in Reg. v. Galvin (No. 2) (1961) VR 740 , it is reasonable to assume that the legislative intention when the provision in question was enacted and re-enacted, as it was in Victoria in 1915, 1928 and 1958, was to adopt the interpretation which had long been placed upon it in Victoria and in England. It is true that the decision in Forbes' Case (1865) 10 Cox CC 362 is criticized by Dr. Glanville Williams in his work on the Criminal Law - The General Part 2nd ed. (1961) p. 194. The learned author says of it: "The only useful comment that can be made upon it is that it is a mere direction to the jury by a Recorder and is unsound". Nevertheless, for the reasons I have given I think the draftsman of the Victorian legislation should be taken to have intended that the essential elements to be proved by the Crown were an assault or an intentional act of resistance or obstruction, that the person assaulted, resisted or obstructed was a police officer and that he was acting in the due execution of his duty and no more. If these facts are proved, then I agree with the Court of Criminal Appeal in the first Galvin Case (1961) VR 733 that the accused may exculpate himself by showing, on a balance of probabilities, that he held an honest and reasonable belief in the existence of facts which, if they had existed, would have made his act a lawful one. There are statements to be found in some of the cases which suggest that, in the case of a statutory offence, the omission of the word "knowingly" merely means that the onus of disproof of knowledge is placed upon the accused. This idea was discussed and criticized by Jordan C.J. in R. v. Turnbull (1943) 44 SR (NSW) 108; 61 WN 70 who said, "Some judges have contrived to discover from the general atmosphere of a statute, without any assistance from its language, an intention on the part of the Legislature, not that mens rea should not be an ingredient of a statutory offence, but that proof of absence of mens rea should be a good defence: R. v. Ewart (1905) 25 NZLR 709, at p 731 , which seems to be an unnecessarily complicated way of saying that mens rea remains an ingredient of the offence but that the Legislature must have meant to shift the onus of proof, putting it upon the accused to establish its absence" (1943) 44 SR (NSW), at p 111; 61 WN, at p 72 . The learned Chief Justice's obvious disapproval of this notion is, to me, entirely justified. If, on the true construction of a statute, mens rea is an essential element in the offence, it must be upon the Crown to prove it. If it is not, then there can be no onus upon an accused to disprove its existence. There is, I think, no middle course. (at p408)

6. Counsel for the respondent drew our attention to two other cases bearing upon the point. The first is a decision of the Appellate Division of the Supreme Court of South Africa in R. v. Wallendorf (1920) Sth Af LR App Div 383 . In that case the accused men were charged with the statutory offence of hindering, resisting or obstructing a constable in execution of his duty and the point was taken that the Crown had failed to prove knowledge on their part that the person resisted was a constable. The leading judgment, with which Innes C.J. and Maasdorp J.A. agreed, was delivered by Solomon J.A. In the course of it the learned judge said: "If full effect is to be given to the plain and unambiguous language of the Legislature, then it is not open to question that the accused were guilty of contravening the section, for undoubtedly they did resist P. C. Mooney in the execution of his duty. If, on the other hand, mens rea is an essential ingredient in the offence, it is present here, for the evidence is clear that, whether or not the accused were aware of the fact that Mooney was a constable, they were guilty of committing an assault upon him. It has already been pointed out in an earlier portion of this judgment that there may be sufficient proof of a guilty mind if it is shown that the accused intended to commit a crime even though it be one different from that with which he is charged. In such a case a person who deliberately breaks the law must take the risk of his offence turning out to be of a more serious nature than he had intended" (1920) Sth Af LR App Div, at p 397 . The latter part of this passage seems to be based upon what Dr. Glanville Williams, in his chapter (Chap. 5) on "Mens rea as affected by ignorance of fact", calls the "lesser crime doctrine" for which there is some authority. Of that doctrine the learned author says (p. 194) that "It is going much too far to say that a man intending one crime can be convicted of another crime, however grave, though he has not the mens rea required for that crime". With this I agree. If, in the present case and contrary to the opinion I have expressed earlier, the proper construction of the statute requires proof of an intent to assault, resist or obstruct and also of an intent to do one or other of these acts to a police officer in the execution of his duty, then evidence of the latter intent cannot be provided merely by proof of the former without more. The other case to which counsel for the respondent referred us was Reg. v. McLeod (1954) 111 Can Crim Cas 106 , a decision of the British Columbia Court of Appeal. There the accused was charged with assaulting a police officer engaged in the lawful execution of his duty. The magistrate before whom the charge was tried considered that knowledge by the accused that the person said to have been assaulted was a police officer was an essential ingredient in the offence and found that the accused had no such knowledge. Accordingly he acquitted the accused. Against that acquittal the Crown appealed. The leading judgment was given by O'Halloran J.A. and I have not found it easy to follow the reasoning. In the course of his judgment he said that knowledge in the person charged of the facts that the person assaulted was a police officer and that he was acting in the execution of his duty were essential elements in the offence. In these circumstances the simple answer to the Crown's contention surely was that it had failed to prove one of the ingredients of the offence. But this was not the way in which his Honour proceeded to deal with the matter. He appears to have relied upon the decision in Reg. v. Tolson (1889) 23 QBD 168 which was applied by this Court in Thomas v. The King (1937) 59 CLR 279 , namely, that if an accused person shows that he acted in an honest belief, reasonably held, that facts existed which, if they had existed, would have meant that his act was lawful, that is a good defence to a criminal charge unless it be excluded by the words of the statute creating the offence. But there is a clear distinction between the failure of a criminal charge for want of evidence of an essential element in the crime and the failure of a charge not because of the lack of such evidence but because in answer to the Crown case the accused has made out a defence of "honest mistake". With all respect, I do not find the reasoning in McLeod's Case (1954) 111 Can Crim Cas 106 convincing. (at p410)

7. In my opinion the decision of the Court of Criminal Appeal in Reg. v. Galvin (No. 1) (1961) VR 733 was correct, and Reg. v. Galvin (No. 2) (1961) VR 740 was wrongly decided. In these circumstances special leave to appeal should be granted, the order of the Court of Criminal Appeal should be set aside and the verdict of the jury on the third count and the sentence thereon should be restored. (at p410)

Orders


Special leave to appeal granted from the order of the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal. Appeal treated as instituted and heard instanter. Allow appeal and set aside order of the Court of Criminal Appeal and in lieu thereof confirm conviction on the third count and sentence thereon.