He Kaw Teh

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Citation: He Kaw Teh (1985) 157 CLR 523.

This information can be found in the Textbook: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 356-370 or here.


Background facts

  • The Defendant [He Kaw Teh] came into the airport with a bag in which a large amount of heroin was hidden.
  • He was charged for possessing and importing heroin under the Customs Act 1901 (Cth).
  • He claimed that he did not know about and did not intend to bring the heroin.

Legal issues


  • When legislation is silent as to mens rea, there is still a presumption that mens rea is required (ie, some degree of awareness of what is going on will still be required).
  • The presumption of (subjective) mens rea can only be rebutted in three ways:
    1. An examination of the words of the statute and thus the intent of the parliament. The words might suggest that parliament intended for no mens rea requirement.
    2. An examination of the subject matter of the offence (ie, nature of the offence). The more serious the offence, the more likely there was a men rea element intended.
      • It is necessary to determine the 'nature' of the offence by considering the extent of social harm and penalty imposed - otherwise the law would be too oppressive (eg, imagine having absolute liability for an offence punishable by a life sentence).
    3. An examination of whether having no mens rea requirement would assist in the enforcement of the law. By that, the Court means whether the imposition of strict or absolute liability (no mens rea) would be a good deterrent in this case.
  • When the presumption for mens rea is not rebutted, the standard of mens rea needs to be determined.
  • Different mens rea standards apply to the different elements of the actus reus (ie, act, circumstance, consequence).
    • The mens rea standard for the act is usually that of intent, ie a full subjective inquiry.
    • The mens rea standard for the circumstances is usually that of knowledge, also described as 'an absence of a reasonable and honest mistake of fact' (HRMF).
      • Accordingly, in offences where the actus reus has a circumstances element (eg, rape - non-consent, assault of a police officer - victim being a police officer), mens rea is only established with regards to the circumstances if there is no HRMF, and therefore it is shown that the defendant had knowledge of the circumstances.
      • HRMF is not a defence - rather, its absence is an element. This means that the burden of proof is on the prosecution: the prosecution must prove, beyond all reasonable doubt, that there was no HRMF.
    • The mens rea standard for the consequences is usually that of recklessness - ie, knowledge as to the possibility or event probability of the consequences.
  • In this case, the offences were importation and possession of narcotics. This means:
    • The presumption against mens rea is not rebutted. Nothing from the words implies it and the offence and penalties are far too serious.
    • The relevant elements of the actus reus are the act (carrying, bringing in) and the circumstances (the item being a narcotic). There is no consequence.
      • Since there is a circumstances components, the prosecution bears the onus of proving that the Defendant, at time when he had physical custody of narcotic goods, knew of the existence and nature, or likely existence and nature, of narcotic goods in his bag.
  • The appeal is allowed and the matter is remitted back down to see if the prosecution can prove mens rea as to circumstance, by negativing the existence of a HRMF and thus proving knowledge.


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