Bacon v Salamane

High Court of Australia|1965-07-01|Before: Owen JJ, Taylor J

High Court of Australia Barwick C.J. Taylor, Menzies, Windeyer and Owen JJ. Bacon v Salamane [1965] HCA 22

ORDER Appeal allowed. Appellant to pay the respondent's costs of the appeal, including the costs of the motion for special leave. Order that the answers given by the Court of Criminal Appeal to the following questions be set aside and the following answers be given to those questions -

(b) Was I in error in holding that in seeking employment with the Australian Atomic Energy Commission and obtaining such employment the appellant obtained a benefit within the meaning of s. 29B of the Commonwealth Crimes Act 1914, as amended?

Answer: There was evidence that in seeking employment with the Commission the respondent's purpose was to obtain a benefit or advantage within the meaning of s. 29B of the Commonwealth Crimes Act.

(c) Was I in error in holding that what was done and said by the appellant was such as to constitute him a person who did impose upon any public authority under the Commonwealth within the meaning of s. 29B of the Commonwealth Crimes Act 1914, as amended?

(e) Was I in error in holding that the evidence adduced on behalf of the prosecution, if accepted in its entirety, was, as a matter of law, sufficient to establish the charge against the appellant?

and order that order of Court of Criminal Appeal be varied accordingly.

I have had the advantage of considering the judgments to be delivered by my brothers Windeyer and Owen. I am in agreement with their Honours' reasoning and comments on the earlier authorities and with the conclusion at which they arrive. In my opinion, the appeal should be allowed, and the relevant questions in the case stated should be answered - (b) There was evidence that in seeking employment with the Commission the respondent's purpose was to obtain a benefit or advantage within the meaning of s. 29B of the Commonwealth Crimes Act. (e) No.

As appears from the case stated the learned Chairman of Quarter Sessions found that the respondent falsely represented to an officer of the Australian Atomic Energy Commission that his name was Brian Charles MacDonald and that he had no criminal convictions and, further, that he made these representations with a view to obtaining employment with the Commission. In fact, after making the representations the respondent worked for the Commission as a cleaner for a period of nearly three weeks at the end of which he was arrested and charged with an offence against s. 29B of the Crimes Act 1914-1960 Cth. That section is in the following terms: "Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence". The precise charge with which we are concerned is that the respondent imposed upon the Commission by the false statements in question "with a view to obtain a benefit". The Supreme Court by majority held that the evidence was insufficient to justify a conviction on this charge and this appeal is brought from that decision.

Section 29B, it may be noticed, is not a security provision intended to protect the establishments of the Commission; it is a general provision relating to the Commonwealth and all public authorities under the Commonwealth and it follows immediately upon a section (s. 29A) which constitutes it an offence for any person, with intent to defraud, by any false pretence to obtain from the Commonwealth or from any public authority under the Commonwealth any chattel, money, valuable security or benefit. The language of s. 29B is redolent of that used in earlier Vagrancy Acts (see Smith v. Hansen [1] ; Prosser v. Fox [2] ; and Hansen v. Archdall [1] ) and upon the hearing there was considerable discussion concerning the decision in the lastmentioned case. However, I think the present case is not concluded by that decision for here, although no particulars were given, the "benefit" which the prosecution alleges the respondent had in mind to obtain was employment by the Commission. That his purpose in making the false representation was to support his application for employment and as far as possible to secure employment is not open to doubt and, indeed, as already appears it has been found as a fact that he made his representations with a view to obtaining employment with the Commission. The substantial question, as I see the case, is whether this finding justifies the conclusion that the representations were made with a view to obtain a "benefit" within the meaning of the section.

[1930] Q.S.R. 124. 2. (1898) 24 V.L.R. 151. 3. (1930) 44 C.L.R. 265.

For the appellant it is said that it does, for employment by the Commission was obviously a "benefit" to the respondent. But the first matter to be noticed about the word in question is that it is to be found in the section in a collocation of words - "money or other benefit or advantage" - which tends against the conclusion that it was intended that it should be understood according to its widest colloquial meaning or meanings. It was, of course, plainly intended to bring within the purview of the section misrepresentations made with a view to obtain not only money but money's worth. And, of course, its meaning may extend further. But however far the meaning of the word may be thought to extend it must be a "benefit" which is capable of being "obtained", and the word "obtain" in the section must, I think, be taken to have been used in the sense of "acquire" (see per Maule J. in The Queen v. Garrett [1] ) so the "benefit" of which the section speaks is something which may be "acquired". Finally, although the section does not expressly say so "the view to obtain" of which the section speaks must be a "view to obtain" from the Commonwealth or public authority to which the untrue representations are made.

With these observations in mind I come to the question whether in making the false representations in question the respondent can be said to have acted "with a view to obtain a benefit" within the meaning of the section. As already appears the finding of the learned Chairman of Quarter Sessions was that in making the representations the respondent acted "with a view to obtaining employment with the Commission". The expression "to obtain employment" is a form of expression in common use but what precisely does it mean? It merely means that a person who is said to have obtained employment has entered into a contract of service with another; he has not obtained anything in the sense in which the expression "obtain" is used in the section unless, of course, it can be said that he has acquired a contractual right to receive wages as remuneration in return of services rendered. In other words, he has entered into a contract to sell his services for an equivalent in wages and the payment of his wages is conditional upon the performance of the services which the contract requires him to perform. I do not, however, regard the conditional right to which he becomes entitled under his contract as a "benefit" within the meaning of the section nor do I think that it can be said to be a right which could be "obtained" from the Commission in the sense in which that expression is used. Accordingly I do not think that the finding which the learned Chairman of Quarter Sessions made in any way justifies the conclusion that the false representations which were made by the repondent were made with a view to obtain a benefit from the Commission. That being so I would dismiss the appeal.

I agree in the judgments of Windeyer J. and Owen J. Here, by means of an untrue representation made to the Australian Atomic Energy Commission, the respondent directly obtained employment, which would ordinarily be regarded as a benefit or advantage. I do not regard the observations in Hansen v. Archdall [1] relied upon by the respondent, as requiring a different conclusion. When in that case it was said that the section there under consideration did not extend to the case of a misrepresentation inducing the making of a contract under which the representor obtained money or other property, the point was that the money or other property so obtained - which was regarded as the only money or other benefit or advantage there obtained - was too remote from the representation. What was said did not go to the length of denying that a contract could be a benefit or advantage and it would, I think, be an extension of that decision to hold that employment is not a benefit or advantage for the purposes of s. 29B of the Commonwealth Crimes Act.

In my opinion a person who seeks an office or employment under the Commonwealth and obtains what he seeks must be taken to have obtained a benefit or advantage. If he obtained it by making an untrue representation, he may be said to have thereby imposed upon the Commonwealth. A person who makes an untrue representation, and thereby imposes upon the Commonwealth or any public authority under the Commonwealth, with a view to obtaining office or employment is therefore in my opinion guilty of the offence created by s. 29B of the Commonwealth Crimes Act. The argument to the contrary, which was earnestly presented, is based upon the use in old Vagrancy Acts of the same collocation of words as in the Crimes Act, and on interpretations put upon those words in that context. The cases relied upon are discussed and the argument based upon them is disposed of, rightly I think, in the judgment to be delivered by my brother Owen. I would only add two observations. First, cases under the Vagrancy Acts have to be read against a peculiar background of social and legal history, as may be seen in the judgment of Scott L.J. in Ledwith v. Roberts [1] . It does not follow that, their background being removed, words and phrases that appear in those Acts retain elsewhere the meaning they had there.

Secondly, the argument that when Parliament in 1941 amended s. 29B it must be taken to have adopted the construction that had been placed upon its phrases in a different context is, I consider, unsound. Words and phrases, when used in relation to a particular subject-matter, may by judicial decision have gained a special meaning different from their ordinary meaning. If afterwards they be used in a statute dealing with that subject-matter, it may be right to assume that they carry that special meaning. But that argument is, to say the least of it, far-fetched here. Moreover the proposition on which it depends must be used cautiously to-day. In The Queen v. Reynhoudt [2] Dixon C.J. said, "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" [1] . And his Honour referred to Lord Radcliffe's observation in Galloway v. Galloway [2] where his Lordship said, "I must confess that I do not lend a sympathetic ear to this last and almost mystical method of discovering the law, least of all when it depends upon a consolidating Act the function of which is to repeat, but not to amend, existing statute law. But however that may be, the argument, whatever form it takes, depends for its force upon the demonstration that there has been an authoritative judicial interpretation over a period from which your Lordships ought not now to depart" [1] . There has not been an authoritative judicial interpretation of s. 29B of the Crimes Act. The most that can be said is that in 1930 a restricted meaning was given by this Court to a provision in some what similar terms dealing with a special and particular mischief - a subject-matter quite different from that with which the provision in question is apt to deal.

(1962) 107 C.L.R. 381. 2. (1962) 107 C.L.R., at p. 388. 3. [1956] A.C. 299. 4. [1956] A.C., at p. 320.

This is an appeal by special leave from the decision of the Court of Criminal Appeal on a case stated by a Chairman of Quarter Sessions involving the interpretation of s. 29B of the Commonwealth Crimes Act. That section, as it was first enacted in 1926, provided that "Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made either verbally or in writing, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence." In 1941, it was amended by substituting the words "in any manner whatsoever" for the words "either verbally or in writing". The amending Act, No. 6 of 1941, which made no other alteration to the law, declared that it should be deemed to have come into operation on 3rd September 1939, the date of the commencement of the war.

The charge against the respondent was that he "did impose upon a public authority under the Commonwealth, to wit the Australian Atomic Energy Commission, by an untrue representation, to wit that his name was Brian Charles MacDonald and that he did not have any criminal convictions, with a view to obtain a benefit". The learned Chairman of Quarter Sessions found that the respondent had made the representations alleged to the Employment Officer of the Commission; that they were untrue to the respondent's knowledge; and that he had made them with a view to obtaining employment with the Commission. He found also that as a result of the making of the representations the respondent had obtained employment with the Commission and, as it would appear from his Honour's reasons and one of the questions asked, that in obtaining that employment the respondent had obtained a benefit. On these findings his Honour indicated that he was of opinion that the commission of the offence was established but, before convicting, he was asked to state a case for the opinion of the Court of Criminal Appeal and did so. A number of questions was asked but on this appeal we are only concerned with two of them, lettered (b) and (e) respectively, namely whether his Honour was in error "in holding that in seeking employment with the Commission and obtaining such employment, the respondent obtained a benefit within the meaning of s. 29B", and whether he was in error "in holding that the evidence adduced on behalf of the prosecution, if accepted in its entirety, was a matter of law, sufficient to establish the charge".

Section 29B is one of a group of three sections introduced in 1926. The first of them, s. 29A, provides by sub-s. (1) that any person who, with intent to defraud, by any false pretence obtains from the Commonwealth or from any public authority under the Commonwealth any chattel, money, valuable security or benefit, is guilty of an offence; and by sub-s. (2) that any person who, with intent to defraud, by any false pretence, causes or procures any money to be paid or any chattel, valuable security or benefit to be delivered or given, by the Commonwealth or by any public authority under the Commonwealth to any person, is guilty of an offence. The third, s. 29C, makes it an offence to make any untrue statement in or in connexion with or in support of any application to the Commonwealth, or to any officer or public authority under the Commonwealth, for any grant, payment or allotment of money or allowance under any law of the Commonwealth. None of the offences is expressed to be an indictable offence and they are, therefore, by s. 12, punishable either on indictment or on summary conviction.

The terms of s. 29A serve perhaps to emphasize the fact that in a prosecution for a breach of s. 29B the fact that money or some other benefit or advantage was obtained by the representor is not in itself an ingredient in the offence although where, as here, the charge is one of "imposing" as opposed to one of "endeavouring to impose" the fact that the representor achieved his aim may be a relevant fact in establishing that the Commonwealth or the public authority, as the case may be, was "imposed" upon. The necessary elements of the offence in a case such as the present are (1) that the person charged imposed upon the Commonwealth or upon a public authority under the Commonwealth by an untrue representation, that is to say untrue to the knowledge of the person charged; and (2) that the representation was made with a view to obtain, that is to say with the object or for the purpose of obtaining, money or some other benefit or advantage. If these facts are proved, the offence is committed and, except as a step towards showing that the Commonwealth or the public authority was imposed upon, it does not appear to me to be relevant to enquire whether the representor obtained anything as the result of his representation. Nor does it seem to me to be relevant to consider whether what he obtained, if he did obtain something, was beneficial to him. The question is, what was his purpose in making the false representation? Was it with a view to obtaining money or some other benefit or advantage? I have mentioned these matters because of the form of the first of the questions which I have set out earlier.

The Court of Criminal Appeal (McClemens and Walsh JJ., Herron C.J. dissenting) answered the questions in favour of the respondent to this appeal and did so because it was of opinion that the section had no application to a case where the person making the false representation does so with a view to inducing the representee to enter into a contract with him under which he may benefit. It is apparent that a different view would have been taken had it not been for the decision of this Court in Hansen v. Archdall [1] , which was decided in 1930.

Unassisted by authority I would have concluded that on the evidence the offence charged could be found to have been committed. The respondent had represented to an officer of the Commission, a public authority under the Commonwealth, that his name was MacDonald and that he had had no convictions for crime. These representations were, to his knowledge, false. When he made them he was out of employment and in financial difficulties. To use his own words in a signed statement made by him to the police, he "desperately needed employment". A finding that he had made the representations with a view to obtain a benefit or advantage could be made. His representations were accepted as true by the official to whom they were made, his application for employment was accepted and the Commission was thus imposed upon. But it is said that in the light of Hansen's Case [1] the section must be construed in a much more limited fashion.

The appellant in that case was convicted of an offence under s. 3 of the Vagrant Act of 1851 Q.. The Act was one "for the more effectual prevention of Vagrancy and for the punishment of idle and disorderly Persons Rogues and Vagabonds and incorrigible Rogues" and contained a variety of provisions directed to curbing a wide range of harmful activities. Section 3 provided (inter alia) that "All persons going about as gatherers of alms under false pretence of loss by fire or by other casualty or as collectors under any false pretence and all persons imposing or endeavouring to impose upon any charitable institution or private individual by any false or fraudulent representation, either verbally or in writing, with a view to obtain money or some other benefit or advantage shall be deemed a rogue and vagabond within the true intent and meaning of this Act." Before the decision in Hansen's Case [1] a number of differing views had been expressed as to the scope of the provision. In Victoria the Supreme Court had held in Reg. v. Armstrong; Ex parte M'Pherson [2] that under a section in The Police Offences Statute of 1865, which corresponded with s. 3 of the Vagrant Act of Queensland, the word "charitable" governed both "institution" and "private individual" and considered that this pointed to a legislative intention that the section should apply only to cases in which the person charged, by his false or fraudulent representations, sought to obtain or obtained money or some benefit or advantage as a gift of charity. If it were otherwise the section would "allow of justices dealing with all cases of false pretences, and in a much more summary mode than can be effected in the superior Courts with the intervention of a jury" [1] . A somewhat similar view was taken in Prosser v. Fox [2] in which Hodges J. accepted an argument that the section had no application "to cases of a contract obtained by fraud or to any case where there has been, so to speak, a quid pro quo ". The section, his Honour said, referred to "an imposition by one person imposing on another to get something by dishonest representations, but getting that something as a rule in return for nothing". The "advantage" or "benefit" to which it referred was an "advantage" or "benefit" in return for which nothing was given although, as the learned judge went on, "I do not say that in every case the giving of something would destroy the effect of the imposition but that that is the class of case aimed at". His Honour made no reference to the statement in Armstrong's Case [1] that the section applied only to benefits obtained or sought to be obtained by way of charity. Later, in Roach v. Rogers [3] , Mann J. speaking for the Full Court, referred with approval to both Armstrong's Case [2] and Prosser v. Fox [2] and went on: "But the argument which weighs most strongly upon the Court is this - there is a very common and very important class of statutory offences always classed in our criminal law as indictable misdemeanours, and grouped in the Crimes Act 1915 under the heading of "False Pretences and Similar Offences", and there is a further large and important class of indictable misdemeanours consisting of frauds by various classes of persons under various circumstances - all defined with great care and precision in the Crimes Act 1915. If the sub-section now under consideration is to be given its literal interpretation, we see no escape from the result that a large proportion, if not the whole, of the serious offences mentioned will pass out of the hands of juries and be dealt with under this clause by justices in Petty Sessions, if they so desire." [1] .

(1930) 44 C.L.R. 265. 2. (1881) 7 V.L.R. (L.) 234. 3. (1881) 7 V.L.R. (L.), at pp. 236, 237. 4. (1898) 24 V.L.R. 151. 5. (1881) 7 V.L.R. (L.), at pp. 236, 237. 6. [1923] V.L.R. 184. 7. (1881) 7 V.L.R. (L.) 234. 8. (1898) 24 V.L.R. 151. 9. [1923] V.L.R., at p. 188.

In Queensland, however, the Supreme Court had taken a different view of the effect of s. 3 of the Vagrant Act (Ex parte Gurney [2] ; Kachel v. McKeon [1] ) and had rejected the contention that the word "charitable" qualified the word "individual" and the further argument that the provision should not be given its literal meaning because to do so would enable a defendant to be tried summarily and not by a jury. It was in this state of the authorities that the High Court heard Hansen's Case [2] . In a joint judgment, Isaacs C.J. and Gavan Duffy J. disagreed with the view that the operation of the section was limited to cases in which the person charged obtained or sought to obtain charitable gifts as Armstrong's Case [3] had decided nor did they accept the argument, which had prevailed in Armstrong's Case [3] and been rejected in Ex parte Gurney [2] , that the section should not be construed in a way which would enable justices to deal summarily with cases of false pretences. The conclusion to which their Honours came is set out in a passage of their judgment: "When all the several branches of the enactment are co-ordinated the legislative intention emerges that it is only when a person sets out to cheat either any charitable institution or any private individual by means of a false or fraudulent representation in order to obtain from the institution or individual as the direct or proximate result of the representation money or some other benefit or advantage, that the provision is contravened." [4] .

(1873) 3 S.C.R. (Q.) 170. 2. [1914] Q.S.R. 233. 3. (1930) 44 C.L.R. 265. 4. (1881) 7 V.L.R. (L.) 234. 5. (1881) 7 V.L.R. (L.) 234. 6. (1873) 3 S.C.R. (Q.) 170. 7. (1930) 44 C.L.R., at p. 272.

It did not extend, they said, "to the case of a person by misrepresentation inducing an institution or individual to make a contract with him under which he obtains money or other property. In such a case the property is not obtained by means of the misrepresentation immediately, but by force of the contract. The misrepresentation is the cause of procuring the contract, and there its mission ends. The contract is the true source of the transfer of the property. And a contract may not always be a profitable one: that depends on circumstances. The statute contemplates the representation as the direct actuating cause of the offender obtaining the money or other benefit or advantage." [1] .

It may be said in passing that their Honours seem to have had in mind a case in which the charge was one of "imposing", not one of "endeavouring to impose". The case before them belonged to the latter category but the same reasoning would apply to a charge under the section of "endeavouring to impose". Starke J. referred to the construction which had been placed on the words by the Courts in Queensland and to the narrower interpretation that had been placed upon them in the Victorian cases that the operation of the provision was limited to cases of imposition whereby benevolent or charitable benefits were sought or obtained. He thought that, for the reasons given by Hodges J. in Prosser v. Fox [2] , an interpretation which would bring within its terms "the indictable offence of false pretences and a large number of fraudulent practices that would not be reached by that elastic charge" [1] was too wide, but that an interpretation which would limit its operation to cases in which the benefits sought or obtained were benefits by way of benevolence or charity was too narrow since that would exclude "cases in which neither benevolence nor charity was sought or obtained, such, for instance, as impositions upon individuals by professing to tell fortunes, or by using any other subtle craft, or by card and other tricks, or by passing off valueless cheques, and so forth" [2] .

(1898) 24 V.L.R. 151. 2. (1930) 44 C.L.R., at p. 278. 3. (1930) 44 C.L.R., at p. 279.

The question is, then, whether s. 29B is to be given what I regard as its natural meaning or whether it is to be given one or other of the more limited interpretations which has been placed upon the provisions of the Victorian and Queensland enactments from which some of its words have apparently been taken.

In my opinion the natural meaning of the words is to be preferred. Having regard to the terms of the section, no suggestion can be made that it is limited in its operation to the obtaining or seeking to obtain charitable benefits from benevolent individuals and institutions, nor is there room for the argument that to give its natural meaning would be to extend the jurisdiction of justices to an unwarranted extent since the Parliament has said that the offences created by the section and by ss. 29A and 29C may be tried either summarily or on indictment. There remains only the argument, arising from what was said by Isaacs C.J. and Gavan Duffy J. in Hansen's Case [1] , that it is to be construed as having no application to a case in which what the representor obtains or seeks to obtain by his false representations is the making of a contract under which money or some other benefit or advantage may be obtained. In considering that question it must be remembered that s. 29B was enacted along with s. 29A. If the suggested limited meaning is to be given to the former provision it must equally be applied to the latter, yet it has long been held that it is no answer to a charge of false pretences that the property the subject of the charge was obtained by means of a contract if the fact is that the prosecutor was induced to make the contract by false pretence: Reg. v. Kenrick [2] ; Reg. v. Abbott [1] ; Reg. v. Burgon [2] ; R. v. Sanders [3] . For these reasons, the various considerations which induced this Court and the Victorian Courts to place a limited construction upon the relevant provision of the Queensland and Victorian Acts to which I have referred do not appear to me to be applicable to s. 29B.

(1930) 44 C.L.R. 265. 2. (1843) 5 Q.B. 49 [114 E.R. 1166]. 3. (1847) 1 Den. 273 [169 E.R. 242]. 4. (1856) Dears. & B. 11 [ 169 E.R. 894]. 5. [1919] 1 K.B. 550.

It was further submitted that when the legislature, in 1941, amended the section in the way already described, it should be presumed to have adopted the limited construction placed upon s. 3 of the Queensland Vagrant Act by Isacas C.J. and Gavan Duffy J. in Hansen's Case [1] and to have therefore intended or at least to have been content that s. 29B should be similarly construed. I cannot agree that any such presumption should be made. The amendment was plainly aimed at some mischief to which the existence of the war had given rise or brought into prominence and it would, in my opinion, be entirely unreal in the circumstances to proceed upon an assumption that, in making the amendment, the legislature had taken into its consideration and adopted, as applying to s. 29B, any one of the various constructions which had been given by Courts to the words of a Vagrant Act of long ago.

I would answer the questions debated before us by saying that on the evidence before the learned Chairman of Quarter Sessions it was open to him to find that the offence charged was proved. The appeal should be allowed, the order of the Court of Criminal Appeal, in so far as it answered Question (b) in the affirmative and Question (e) in the negative, should be set aside and in lieu thereof those questions should be answered in the manner set out above. Otherwise the order should stand. Special leave was granted upon an undertaking by the appellant to pay the costs of the application for special leave and of the appeal in any event. Accordingly those costs should be paid by the appellant.

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