To be an officer it is neither necessary nor sufficient that a person be an employee of the company in question. The jury should have been told that the fact that the appellant was an employee of Rothmans was relevant but not conclusive on the issue of whether he was an officer. Not all employees of a public company are properly described as officers of the company.
58 Earlier in the judgment (at 77) Gleeson CJ stated:
It is, of course, a perfectly permissible process of reasoning to take into account the provisions of the Companies (New South Wales) Code which define aspects of the relationship between a person and a company for the purpose of reaching a conclusion as to whether that person is an officer of the company. … That, however, is different from treating a definition in the companies legislation as fixing the meaning of an undefined term found in the Crimes Act . Rather, it involves treating the companies legislation as a source of information disclosing material relevant to the determination of the issue which arises under the Crimes Act .
59 It is not our position that because the Corporations Act defines 'director' that definition must automatically be adopted in s 26. Rather, the Corporations Act is a 'source of information disclosing material relevant to the determination of the issue which arises under the [OHS Act]'.
60 In Scott v R it is not difficult to understand how the Court came to the conclusion that not all employees will be officers of a corporation, notwithstanding the statutory definition of 'officer' under the Companies Code in that case. It is apparent why the ordinary meaning of the term 'officer' was preferred.
61 However, in the present case it is not at all apparent why the ordinary meaning of 'director', as Marks J defined it, is to be preferred over the definition in s 9 of the Corporations Act. It would mean, as we earlier observed, that persons who would otherwise have the same duties and responsibilities as a director appointed under the company's constitution would be immune from prosecution under the OHS Act, notwithstanding that their complicity in a contravention by the corporation had the most serious consequences for persons in the workplace.
62 Dean v Hiesler was a case where the respondent was proceeded against under a penal statute, the Defence (General) Regulations, as being a director of a company at a time certain offences against the regulation limiting supplies were committed. It was proved that the respondent had not been appointed as a director, although he had attended at the offices of the company and signed letters, cheques and documents describing himself as a director. It was held that the regulation, being a penal statute had to be construed strictly and the respondent, who had not been duly appointed, could not be a director within the meaning of the regulation.
63 Viscount Caldecote LCJ stated at 341:
It is quite true he acted as a director: he signed letters and cheques and documents and, more particularly, he signed a return in which it appeared that he had been appointed a director of the company, and he signed as a director. That is said by the appellant to be enough, because it is said that under the Companies Act, 1929, "a director" includes anyone who is in the position of a director, and that this man, by the acts which he performed and the duties which he took upon himself, had come into the position of a director and, therefore, must be treated as a director although, in fact, he was not a director. It is quite true, of course, that this man usurped or performed some of the duties of a director, and it may be that to that extent, he was in the position of a director, but I think that what the court here has to determine is whether the man was a director in fact, and has not to consider what is the precise meaning and effect of the definition contained in the Companies Act , 1929, s 380. We have been referred to a number of sections in the Companies Act , 1929, which say what a director must do, and what the effect of invalidating his appointment may be with regard to acts which he performed while he was purporting to be a director, but we come back, in my judgment, to this simple question, whether the man in question was a director of the company.
64 Tucker J stated at 341:
In this case we are being asked to interpret the Defence (General) Regulations, reg 91. That regulation has the force of a penal statute, and, in my view, should be construed strictly. It shifts the onus in cases where the person convicted is a body corporate. In those cases it shifts the onus on to every person who, at the time of the commission of the offence was a director or officer of the body corporate to prove his innocence, and, if he fails so to do, he renders himself liable to the penalties imposed by the regulations, including, in certain cases, imprisonment.