Gault v Lawson [2001] ACTSC 104

3. The issue raised by the application to stay the prosecution of these charges may be simply stated. Each count alleged the theft of a sum of money which did not exceed $1,000 and Mr Gill, who appeared on behalf of the appellant, argued that whilst the allegations, if proven, might have supported convictions for offences under s 90A of the Crimes Act 1900, they were either incapable of constituting an offence under s 99 of that Act or, alternatively, that any prosecution for an offence under the latter section should have been stayed as an abuse of process.

4. Section 99 provides simply that a person who steals is guilty of an offence punishable, on conviction, by imprisonment for ten years. However the section is of wide application. Section 94 provides that a person shall be taken to steal if he or she dishonestly appropriates property belonging to another person. The concepts involved in s 94 are explained, and perhaps expanded, by the provisions of ss 95, 96, 97 and 98.

5. It was not disputed that, but for the enactment of s 99A, the facts alleged by the Crown, if proven, could have constituted an offence under this section. The issues in the present case arise because of an amendment to the Crimes Act in 1995. Section 4 of the Crimes (Amendment) Act (No 2) 1995 inserted s 99A, which is in the following terms:

A person who steals property the value of which does not exceed $1,000 is guilty of an offence punishable, on conviction, by imprisonment for six months or a fine not exceeding 50 penalty units, or both.

6. It was common ground in each case that the facts alleged against the appellant would have involved the commission of an offence under this section. The question was whether the Crown was entitled to have nonetheless proceeded with charges under s 99.

7. The point is more than one of mere academic interest. Section 31 of the Magistrates Court Act 1930 provides that the prosecution for an offence involving a maximum term of imprisonment not exceeding six months may be commenced only within one year after the alleged commission of the offence. The present proceedings were not commenced within that time. Hence, if Mr Gill is correct, the proceedings were not maintainable.

8. Ms Cronan, who appeared for the respondent, argued that the enactment of s 99A had been intended to facilitate flexibility, rather than to introduce a rigid dichotomy between minor thefts, which would constitute offences only under that section, and other thefts, which would constitute offences under s 99. She submitted that there was nothing in the language of the section to indicate that it was intended to restrict the operation of s 99. Furthermore, such a dichotomy might cause considerable inconvenience. Charges against the person who had allegedly stolen various items of property over an extended period of time might have to be divided into two groups, with those relating to property valued at less than $1,000 being prosecuted as summary offences under s 99A and those relating to more valuable property being prosecuted as indictable offences under s 99. That might require two hearings even in the Magistrates Court; with a summary hearing being conducted in relation to the charges under s 99A, and committal proceedings, which might or might not subsequently be converted to a summary hearing, being conducted in relation to the offences under s 99.

9. On the other hand, as Mr Gill pointed out, a similar division of charges is required in a wide variety of circumstances. For example, people are frequently committed for trial on indictable offences whilst "back up" charges involving allegations arising from the same incident or incidents remain unresolved in the Magistrates Court.

10. The effect of s 99A has been considered in successive decisions of this Court in R v Noel Alexander Teys. In the first of those decisions, R v Noel Alexander Teys (unreported, ACT SC, 8 November 1999, SCC 25 of 1998), Higgins J was asked to give directions in relation to a draft indictment which then contained no less than 445 counts, 424 of which related to allegations of the theft of property valued at less than $1,000. After hearing argument on the issue his Honour expressed the opinion that an allegation of the theft of property valued at $1,000 or less might be prosecuted only as a summary offence under s 99A. His Honour noted that the avowed purpose of the amendment had been to create a summary form of three indictable offences, and that it had been directed at the "mischief" of permitting defendants to put the Territory to the expense of a jury trial. He observed that in the Second Reading Speech the Attorney-General had referred to the objective of "flexibility", but that it seemed unlikely that the legislature had intended to permit the prosecution the option of laying charges under s 99 rather than s 99A when that would subvert the fundamental purpose of the amendments.

11. His Honour observed, however, that whilst it may be appropriate for a limitation period of twelve months to apply to an isolated instance of minor theft, such a limitation might not permit convenient prosecution of a long succession of minor thefts, particularly those which had been concealed from detection for some time. The provisions of s 124 of the Crimes Act enabling prosecutions for theft of money on the basis of a general deficiency in the books of account might serve to ameliorate that difficulty in some cases, but could have no application in others. Steps have since been taken to overcome this problem by the passage of legislation replacing the provisions of s 31 of the Magistrates Court Act with the provisions of s 33H of the Interpretation Act 1967. The latter section, which has not yet come into force, will maintain the limitation period but exclude proceedings for offences under s 99 from its application.

12. The issues before Higgins J were debated only in the context of a draft indictment and, as Miles CJ observed in the subsequent judgment, R v Noel Alexander Teys [2001] ACTSC 29; (2001) 161 FLR 44, there had been nothing which enlivened the jurisdiction of the court to make an order or give judgment. His Honour, Higgins J's remarks had been intended to assist the parties to arrive at a decision as to the real issues that could be prosecuted but, strictly speaking, were obiter dictum.

13. The Crown subsequently presented an indictment charging Mr Teys with a number of offences under s 108 of the Crimes Act of falsifying receipts for the purpose of concealing the true purposes of drawing on cheques. A further challenge to the indictment then ensued. In dismissing that challenge, Miles CJ observed that he had not been required to determine whether or not the ruling or expression of opinion by Higgins J had been correct.

14. Miles CJ referred to the principles discussed in S_araswati v The Queen_ [1991] HCA 21; (1991) 172 CLR 1. In that case the High Court of Australia held that a charge of committing an act of indecency with or towards a person under the age of sixteen years could not be brought under s 61E(2) of the Crimes Act 1900 (NSW) when the conduct relied on would have amounted to an indecent assault for the purposes of s 61E and subs 61E(1) or unlawful carnal knowledge for the purpose of s 71, and a prosecution for either of those offences would have been barred by a limitation provision contained in s 78 of that Act. McHugh J, with whom Toohey J agreed, said that as a matter of statutory construction the offence of committing an act of indecency with a person under sixteen years was not intended to apply to cases in which there had been any assault or act of carnal knowledge. Gaudron J also agreed that the later and more general provision contained in subs 61E(2) had been intended to apply only to acts of indecency not involving assaults or acts of carnal knowledge. McHugh and Toohey JJ suggested that the legislature should not be taken to have intended to provide a means of circumventing the limitation period imposed in relation to the other offences.

15. The case is, of course, distinguishable. In Saraswati the High Court was concerned with a provision enacted to cover a perceived lacuna in the law, in that the existing provisions of ss 61E(1) and 71 of the Crimes Act had not extended to some situations in which an act of indecency had been committed, and the limitation periods applied to the provisions of ss 61E(1) and 71, rather than the subsequently enacted provision which the court was required to construe. In the present case there is no doubt that, but for the provisions of s 99A, the provisions of s 99 would have extended to any theft of property valued at $1,000 or less and no limitation period would have applied.

16. In the latter case of Teys, Miles CJ observed that the offence of false accounting contrary to s 108 was not coextensive with the offence of theft, and that the prosecution might have alleged both offences if it would not have been oppressive to have done so. His Honour held that there had been no implied repeal of s 108 and that the operation of the section had not been limited by the enactment of s 99A.

17. His Honour cited statements made in R v Chalak [1983] 1 NSWLR 282 where, in dealing with an argument that provisions of the Crimes Act 1914 (Cth) had been affected by subsequent provisions in the Unemployment, Sickness and Benefits Act 1944 (Cth), Street CJ said at 284-285:

The question is simply one of seeing whether or not within the well-established principles it can be seen that the [Unemployment, Sickness and Benefits Act 1944 (Cth)] in its operation discloses a sufficient element of inconsistency to yield the inference that the legislature intended that the earlier provision (that is to say, s 29B) should be excluded in its operation in respect of facts such as those alleged in the present indictment.

One can readily envisage the necessity of having access to a court of summary jurisdiction for the purpose of visiting some comparatively minor departure from the requirements of the Act with a correspondingly minor punishment. It would clearly enough be an encumbrance to the administration of criminal justice to contemplate that every infringement of a provision such as s 49 should require trial on indictment and I see every reason to understand the legislature as having intended to create a parallel system of summary justice to be invoked in circumstances not justifying the more solemn procedure of trial on indictment. The summary nature of the penal scheme enshrined in ss 49 and 50, and in ss 138 and 139 of the current statute, in my view, can readily stand together with the general indictable offence constituted under s 29B.

19. After referring to the context in which the statements had been made, Miles CJ said:

In my view, s 99A exists to provide a parallel system of summary justice which may be invoked when the prosecuting authority considers that the circumstances do not justify trial on indictment. But the prosecuting authority is not bound to prosecute summarily and is not restricted to the summary procedure because the circumstances fall within the provisions authorising summary procedure, as well as within the scope of one or more indictable offences.

20. Ms Cronan relied heavily on these remarks, arguing that they provided strong support for her contention that a police informant with reasonable grounds to institute proceedings for the theft of property valued at $1,000 or less might elect to charge the alleged offender with either an offence under s 99 or an offence under s 99A.

21. Mr Gill conceded that the remarks were at least compatible with such a contention but stressed that his Honour had been concerned with an argument that the enactment of s 99 had affected the scope or operation of s 108 rather than s 99 of the Crimes Act and, as I have mentioned, expressly observed that it had not fallen to him to determine whether the approach taken by Higgins J in relation to the last mentioned section had been correct. Accordingly, the passage quoted was also obiter dictum.

22. The extrinsic material provides some limited assistance. The Explanatory Memorandum to the Crimes (Amendment) Bill (No 2) 1995, contains no statement of any substantial relevance to their issue. However, in introducing the Bill, the Attorney-General stated that the amending Bill, which included s 99A, was intended to create "a summary form" of three existing indictable offences. He observed that the majority of cases which fell under each of the three existing offences involved property with a value of less than $1,000 and that it would "better reflect the reality of the situation if these relatively minor offences were dealt with as summary offences". He also observed that it had been necessary to prosecute such cases as indictable offences and for defendants to be asked whether they consented to the matter being heard in the Magistrates Court under s 477 of the Crimes Act. He said that it had not been uncommon for the question to cause the defendant confusion and apprehension, particularly if he or she had been unrepresented, and that it was "unrealistic" to permit the defendant to put the Territory to the expense of a jury trial. As Higgins J observed, the Attorney-General again stated in the Second Reading Speech, that the purpose of the amending Bill was to create "a summary form of three existing indictable offences".

23. In Saraswarti, McHugh J observed at 21 that s 33 of the Interpretation Act 1987 (NSW) directed a court to give preference to a construction of a statutory provision "`that would promote the purpose or object underlying the Act'" over a construction `that would not promote that purpose or object'". His Honour continued:

Moreover, the terms of s 34 of that Act, which provided for the use of extrinsic material, make it plain that "the ordinary meaning conveyed by the text of the provision" is the meaning conveyed by that provision after "taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule". Hence, it was always necessary in determining "the ordinary meaning" of a provision . . . to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning . . . .

It should be noted that ss 11A and 11B of the Interpretation Act 1967 contain comparable provisions to those to which his Honour referred.

24. McHugh J also referred to observations of Mason and Wilson JJ, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321, that the propriety of departing from the literal interpretation of a provision was not confined to situations in which the operation of the statute could be described by labels such as "absurd", "extraordinary", "capricious", "irrational" or "obscure". His Honour said it was appropriate to do so when the operation of the statute on a literal reading of its terms did not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which might be discerned from those provisions.

25. McHugh J said that his conclusion had been based upon two considerations. The first was that the purpose of the parliament had been to deal with cases which did not constitute indecent assaults or acts of carnal knowledge. The second, which is of more relevance in the present case, was the rule that when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use the general provision in the same statute to avoid that condition or limitation.

26. It is clear from the Attorney-General's speech that the legislature had intended to provide a summary offence of minor theft so that the defendant would not be put in the position of having to make an election under s 477 of the Crimes Act, and would not be able to elect for trial on indictment. There is nothing in his remarks to suggest that the legislature intended to achieve those purposes only when police informants elected to lay charges under s 99A rather than s 99. Nor was there any suggestion that the "reality of the situation" should be better reflected by proceeding summarily, and the expense of a jury trial avoided only in the event of such an election. It is true, of course, that the Attorney-General spoke of the "flexibility" that would be achieved by the amending legislation but I am not satisfied that in using that word the Attorney-General had intended to imply any more than that there would be a diversity of procedure, with minor thefts being prosecuted summarily, and other thefts being prosecuted initially on indictment but with the possibility of summary trials under s 477 of the Crimes Act.

27. There are also strong countervailing considerations. The effect of the construction for which the respondent contends would be to authorise police informants to choose whether the allegedly criminal conduct should be treated as a summary or indictable offence, whether the maximum penalty should be six months imprisonment or ten years imprisonment, whether the defendant should be bound to have the matter determined summarily or have the right to trial by jury, and whether the limitation period applicable to an offence of minor theft could be effectively circumvented. I find it difficult to accept that the legislature had intended that the fate of a person who had committed a minor theft should be so heavily dependant upon the discretion of a police officer and/or that of any prosecutor subsequently assigned to conduct the proceedings.

28. Whilst I am conscious of the weight that should properly be given to the decision of the New South Wales Court of Criminal Appeal in R v Chalak, that case concerned provisions in different statutes and there were grounds for maintaining that the legislature had intended to create a "parallel" system of justice which do not arise in the present case. Furthermore, that case was decided prior to the decision in Saraswarti and the issues do not seem to have been approached in precisely the same manner.

29. I accept the principle succinctly stated by Gaudron J in Saraswarti v The Queen, at 17:

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.

See also Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 and Re Applications of Shephard [1983] 1 NSWLR 96.

30. In the present case, however, it seems to me that one should read the provisions of s 99 as subject to the later provisions of s 99A, and that the former should now be taken to apply only to thefts of property the value of which exceeds $1,000. In my opinion such an intention must be implied because the legislature should not be taken to have intended to have clothed police informants with the extraordinary powers to which I have referred, or to have intended permitting the general provision contained in s 99 to be used as a means of circumventing the very purposes for which s 99A was enacted.

31. Accordingly, I find that offences of theft involving property valued at no more than $1,000 can only be prosecuted summarily under s 99A. It follows that the charges against the appellant were not maintainable and that the convictions against her must be set aside.

32. In view of this conclusion it is unnecessary, and would perhaps be inappropriate, for me to consider the other grounds of appeal.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: ACT Director of Public Prosecutions