Tran v The Commonwealth [2010] FCAFC 80 (6 July 2010)

Rares J
105 The only norm created by each of ss 229, 232(1), 232A and 233(1)(a) consists of a prohibition that applies cognately to both conduct and an accompanying state of mind that does not make the conduct excusable. Thus, if the Commonwealth had established before the primary judge, on the balance of probabilities in accordance with s 140 of the Evidence Act , that the appellant or anyone else on his ship had contravened s 232A or one of the other provisions of Div 12 on which it relied, it would have established a contravention of the Act. That would have enlivened the automatic forfeiture provision in s 261A. The acquittal of the appellant, of itself, did not deny the possibility that in civil proceedings that he could be proved to have committed an offence – i.e. that he had contravened the Act. Such a course is generally open in civil proceedings, including, as was the position in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, proving that the defendant had murdered the deceased despite his acquittal on his criminal trial of that charge. The allegation of criminality in civil proceedings needs only to be proved on the civil standard of the balance of probabilities: Rejfek v McElroy [1965] HCA 46; (1964) 112 CLR 517. However, here the contravention to be proved is one that would have amounted to a crime, and very serious one, since s 232A carried a maximum penalty of 20 years imprisonment. Thus, the Court would pay close attention to the requirements of s 140(2) of the Evidence Act in arriving at the requisite state of satisfaction, on the balance of probabilities, that the appellant, or another voyager on his ship, committed such a crime: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 479-482 [29]- [38] per Weinberg, Bennett JJ and myself.