John L Pty Ltd v Attorney-General

John L Pty Ltd v Attorney-General - [1987] HCA 42 - HCA 1985 case summary — Zoe

[6]

The appellant's argument that an appeal did not lie to the Court of Criminal Appeal pursuant to the first limb of s. 5C in the present case was not, however, based upon an assertion that the decision of Yeldham J. should not properly be seen as a decision quashing the information. Rather, it was to the effect that the first limb of s. 5C did not apply at all in respect of an information instituting proceedings in the summary jurisdiction of the Supreme Court. The second limb of the section, which expressly deals with appeals from a decision of the Supreme Court in its summary jurisdiction quashing an application under s. 4(1) of the Summary Jurisdiction Act, should, according to the appellant's argument, be construed as exhaustively defining the right of appeal in any such case with the consequence that no appeal lies unless the Crown was "a party" to the proceedings at first instance. In support of that argument, the appellant points to the legislative history of s. 5C which discloses that the second limb of that section, which was added in 1979, transferred the jurisdiction to hear appeals from the Supreme Court in its summary jurisdiction from the New South Wales Court of Appeal to the Court of Criminal Appeal: see the former ss. 18 and 24 of the Summary Jurisdiction Act; Supreme Court (Summary Jurisdiction) Crimes (Amendment) Act 1979 NSW, s. 5 and Item (6) of Sched. 1; Criminal Appeal (Crimes) Amendment Act 1979 NSW, s. 4 and Item (4) of Sched. 1. There would, no doubt, be considerable force in this argument if the ordinary procedure for making an application under the Summary Jurisdiction Act was by way of information. As has been seen however, the procedure for making such an application is by way of summons. The special requirement in s. 56(4) of the Consumer Protection Act that proceedings such as those in the present case shall be commenced by information is in conflict with that ordinary procedure and reflects what must be presumed to be a considered legislative intent that proceedings in any court for an offence against the Consumer Protection Act (Pt V excepted) should be commenced by information with all that that involves. That being so, there is no reason why it should be supposed that it was the legislative intent that the ordinary procedures for quashing an information or for appealing from a decision quashing an information should be excluded. Moreover, in that context, the actual information commencing proceedings in the summary jurisdiction for an offence against the Consumer Protection Act cannot properly be described as an "application made under" the Summary Jurisdiction Act. It was and remained an information under the Consumer Protection Act.

[8]

Strictly speaking, it is unnecessary to examine the question whether an appeal also lay pursuant to the provision of the second limb of s. 5C. We have, however, formed a clear view on that question. Since it was primarily to permit consideration of it that special leave to appeal was granted, it would seem appropriate that we briefly indicate what that view is. It is that an appeal did not lie to the Court of Criminal Appeal in the present case pursuant to the second limb of s. 5C for the reason that the proceedings before Yeldham J. were not proceedings to which "the Crown" was a "party". They were proceedings to which the parties were Mr. Clayton and the appellant. The fact that Mr. Clayton was an officer of the Department of Consumer Affairs at the time the information was laid before a judge of the Supreme Court and that the proceedings were taken and prosecuted by him with the authority of the Acting Minister for Consumer Affairs might arguably mean that, for some purposes and in a broad and imprecise sense, the proceedings are properly to be seen as brought by or on behalf of "the public" or "the State" or as susceptible of being equated with Crown proceedings. The requirement of the second limb of s. 5C is not however that the proceedings be "public" or that they be brought on behalf of "the State" or by "the State" as a party or that they can be equated with "Crown proceedings". It is that "the Crown", which is a limited aspect of "the State" in the broad sense, be itself "a party". In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to "the Crown" being "a party" a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by Mr. Clayton as "a person" (s. 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs: contrast, e.g., proceedings to which "the Minister" (s. 56B) or "the Commissioner with the consent of the Minister" (s. 56A(1)) is a party. They were not proceedings to which the Crown was a party in any accepted meaning of the words "Crown" and "party".

[10]

The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" Ex parte Lovell; Re Buckley [2] . The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 (11 & 12 Vict. c. 43), ss. 1 and 3 and the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 39) was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckley [3] and, in particular, Justices Act 1902, ss. 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g., Smith v. Moody [4] ; Johnson v. Miller [5] ; Ex parte Graham; Re Dowling [6] . It is, however, unnecessary to pursue that particular question here since, putting to one side s. 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.

[16]

As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1,000 litres of free petrol to customers "buying a car over $3,000.00" during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the "manner of the [appellant's] acts or omissions" (cf. per Dixon J., Johnson v. Miller [13] ) or to provide "fair information and reasonable particularity as to the nature of the offence charged": per McTiernan J. [14] . In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the "material particular" in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision. The only such statutory provision which is suggested by the respondent Attorney-General to have had that effect is s. 6 of the Summary Jurisdiction Act.

[31]

As the Rules of the Supreme Court require that summary proceedings should be commenced by summons (Pt 75, r. 7), not by information, there is no reason to suppose that the first limb of s. 5C confers a right of appeal against the quashing of an application under s. 4(1) of the Summary Jurisdiction Act in the ordinary case. But the provisions of s. 56(4) of the Consumer Protection Act 1969 NSW require summary proceedings for an offence against that Act (Pt 5 excepted) to be "commenced by information". When an application is so commenced and is quashed by the Supreme Court, is a right of appeal conferred on the Attorney-General by the first limb of s. 5C by reason of the quashing of an "information"? The answer depends on the scope which the legislature intended to give to the term "information" in the first limb. The context in which the term is used (i.e., "information or indictment") suggests that the right of appeal conferred by the first limb of s. 5C is restricted to cases where the information which is quashed is truly an alternative to an indictment. As information and indictment are the two processes which enliven the regular criminal jurisdiction of the Supreme Court, the phrase "information or indictment" appears to describe the pleas of the Crown in the regular jurisdiction. The requirement of the second limb that the Crown be a party states an element common to the two limbs: pleas of the Crown in the regular jurisdiction are the subject of the first limb and Crown prosecutions in the summary jurisdiction are the subject of the second. No legislative purpose appears to be served by holding that the first limb applies to those extraordinary cases where a summary prosecution is commenced by information. The history of s. 5C confirms this construction. Prior to 1979, the first limb of s. 5C applied only to pleas of the Crown in the regular jurisdiction. There were no "informations" which were not pleas of the Crown. When a right of appeal to the Court of Criminal Appeal against the quashing of an application made under s. 4(1) of the Summary Jurisdiction Act was conferred on the Attorney-General, there were no "informations" in the summary jurisdiction which might have constituted such "an application". The exceptional requirement of s. 56(4) introduces a possible ambiguity not ordinarily present in the meaning of the term information in s. 5C. In my opinion, the better view is that the right of appeal conferred by the first limb is restricted to cases where the quashed information or indictment is the formal allegation of an indictable offence made in the regular jurisdiction and that the right of appeal conferred by the second limb is limited to cases where the Crown is a party (in the sense stated) to the summary proceedings in which the quashed application is made, whether the application be made by summons, upon information or otherwise.

[36]

The person accused is entitled to sufficient particulars of the matter charged against him to enable him to meet the charge. Hence, in earlier times, it was repeatedly held that to follow the words of the statute in alleging the offence in the information was not necessarily sufficient. "Where a particular act constitutes the offence, it may be enough to describe it in the words of the Legislature; but where the Legislature speaks in general terms, the conviction must state what act in particular was done by the party offending to enable him to meet the charge": R. v. James [22] . In many cases it was open to doubt whether it was necessary to add particulars to the language of the statute in framing the information: Fletcher v. Calthrop [23] , and this led to its being expressly enacted that "the description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or any similar words, shall be sufficient in law" (Justices Act 1902, s. 145A(1), taken from Summary Jurisdiction Act 1879 (42 and 43 Vict. c. 49), s. 39(1)). The defect in Fletcher v. Calthrop was similar to the defect in the present case. There, a conviction was drawn up in the terms of the relevant statute, stating that a close had been entered unlawfully, but the grounds of the unlawfulness did not appear. The conviction was held to be defective. (The certainty required of a conviction was required also of a complaint or information which initiated a summary prosecution: Johnson v. Miller [24] ; and cf. Ex parte Lovell; Re Buckley [25] ). In Fletcher v. Calthrop, Lord Denman C.J. stated the principle to be [26] "that, where a certain act is made punishable by summary conviction, which act may be lawful if performed under certain circumstances, these circumstances ought to be negatived in the conviction". The act which is punishable under s. 32(1) of the Consumer Protection Act is the publication of a statement; the circumstances which are alleged to make the act unlawful, prescribed by par. (b), are the false or misleading character of the statement known to the alleged offender. Those circumstances should be specified, and Fletcher v. Calthrop supports the view that the present information is deficient in so far as it fails to specify the respect in which the alleged advertisement was false or misleading. 1. (1700) 1 Ld. Raym. 581, at p. 583 [91 E.R. 1288, at p. 1290]. 2. (1943) 44 S.R. (N.S.W.) 12, at p. 16. 3. (1784) Caldecott 458, at p. 461. 4. (1845) 6 Q.B. 880 [115 E.R. 332]. 5. (1937) 59 C.L.R. 467, at p. 488. 6. (1938) 38 S.R. (N.S.W.) 153, at p. 166. 7. (1845) 6 Q.B., at pp. 890-891 [115 E.R., at p. 336].

[51]

It is argued, however, that s. 6(1) did not apply to the present case and that counsel for the prosecutor before Yeldham J. was right not to rely upon it. The reason why s. 6(1) is said not to be applicable is that the information is said not to be "any application referred to in, or any order or warrant made or issued under, section 4 or 5". Section 4(1) speaks of "an application made by any person in accordance with the rules", i.e., the Rules of the Supreme Court. Although, as we have seen, Pt 75, r. 7 of the rules prescribes that proceedings in the summary jurisdiction be commenced by summons "claiming an order under section 4", the information in the present case was laid in conformity with the requirements of s. 56(4) of the Consumer Protection Act that proceedings including proceedings in the summary jurisdiction of the Supreme Court "be commenced by information". An information which commences proceedings is the originating process which invokes the Court's jurisdiction. It answers the description of "an application made by any person" in s. 4. But, it is submitted, it is not made "in accordance with the rules". The rules are made pursuant to a power conferred by s. 29 of the Summary Jurisdiction Act to prescribe practice and procedure. Where proceedings are commenced by information in conformity with the Consumer Protection Act, the requirements of Pt 75, r. 7 are superseded, but the rules of court otherwise apply to the originating process. The information may therefore be an application made in accordance with the rules so far as they are applicable. An information laid in conformity with the Consumer Protection Act and otherwise in accordance with the rules, especially Pt 7, r. 6 relating to the filing of originating process, is an application referred to in s. 4. Section 4 confers power to order the appearance or apprehension of defendants against whom proceedings have been commenced by application, so that, if an information laid in conformity with the Consumer Protection Act were not an application as referred to in s. 4, there would be no power to order the appearance of a defendant charged with an offence under the Consumer Protection Act.

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