Joyce v Grimshaw

Federal Court of Australia|1831-03-23|Before: Dowling J, Crispin J, Weinberg JJ

REASONS FOR JUDGMENT 1 This is an appeal by the informant from a judgment of Crispin J in the Supreme Court of the Australian Capital Territory in which his Honour set aside thirty-nine convictions which had been recorded against the respondent by a Magistrate on charges of imposition under s 29B of the Crimes Act 1914 (Cth) ("the Crimes Act"). His Honour ordered that the information containing these charges be dismissed. 2 It is well established that this Court has jurisdiction to entertain such an appeal: Davern v Messell (1984) 155 CLR 21; and Hatty v Pilkinton (1991) 28 FCR 352.

The background facts 3 The essential facts are not in dispute. The respondent was formerly employed by the Civil Aviation Safety Authority ("CASA"). As part of his salary package he was provided with a privately plated motor vehicle. He was also issued with a petrol card ("Shell Card"). 4 The respondent resigned from CASA on 8 May 1998. Upon his resignation he exercised an option to purchase the motor vehicle. Accordingly, the registration of that vehicle was transferred into his name. However, he did not return the Shell Card to CASA and, for whatever reason, CASA took no steps to recover it from him. 5 Immediately after leaving CASA's employ, the respondent went on a driving trip around Australia. He used the Shell Card on thirty-nine separate occasions to obtain petrol. In accordance with its normal contractual arrangements, Shell issued monthly invoices for purchases made on the Shell Card to CASA, and again in accordance with those arrangements, CASA was obliged to pay the amount listed on each monthly statement no later than the 21st day of the following month. 6 The thirty-nine separate occasions on which the respondent used the Shell Card after he resigned from CASA were the subject of the thirty-nine charges of imposition brought against him. CASA was billed for these purchases in three monthly invoices in May, June and July of 1998. The total amount came to $871.38. 7 The respondent attended the offices of CASA on three occasions after his resignation. On the first two of those occasions he neither returned the Shell Card nor sought to reimburse CASA. On the third occasion, after being prompted, he organised immediate payment. 8 It emerged from the evidence given by the respondent during the hearing that: · he had used the Shell Card because it was convenient and also because it enabled him to obtain petrol at less than the normal retail price; · apart from the first time that he had used it, he did not believe that he was entitled to do so; and · he appreciated that when he used the card he was exposing CASA to liability to pay Shell for the petrol. 9 On 8 November 1999 the respondent was convicted by the Magistrate on each of the charges laid against him. The Magistrate found that the respondent had made an untrue representation, namely that the respondent had represented to each petrol vendor on each occasion on which he presented the Shell Card that he was entitled to use it and CASA would be responsible to Shell for payment. He convicted the respondent and ordered, pursuant to s 20(1)(a) of the Crimes Act, that he be released upon entering into a recognisance to be of good behaviour for twelve months. The respondent was also ordered to pay costs and a small criminal injury compensation levy. 10 The respondent appealed against these convictions and orders. The appeal was heard by Crispin J. On 2 June 2000 his Honour ordered that the appeal be allowed, that the convictions and orders of the Magistrate be set aside, and that the information be dismissed. 11 The appeal against his Honour's judgment is brought upon the following grounds: "That his Honour Justice Crispin erred in that: (a) he misconceived and incorrectly applied s 29B of the Crimes Act 1914 and (b) he found that the facts established did not constitute the offence of imposition pursuant to s 29B of the Crimes Act 1914."

The relevant legislative provisions 12 Section 29B of the Crimes Act provides as follows: "29B False representation 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. Penalty: Imprisonment for 2 years." 13 This section appears in Part II of the Crimes Act, headed "Offences against the Government". It was introduced in 1926, along with ss 29A and 29C and a series of other provisions contained in Pt IIA which are not presently relevant. It is necessary to set out ss 29A and 29C in order to appreciate fully the issues raised in this appeal. 14 Section 29A provides: "29A False pretences (1) 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, shall be guilty of an offence. (2) 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, shall be guilty of an offence. Penalty: Imprisonment for 5 years." Section 29C is in the following terms: "29C Statements in applications for grant of money etc. A person who, in or in connexion with or in support of, an application to the Commonwealth, to a Commonwealth officer or to a public authority under the Commonwealth for any grant, payment or allotment of money or allowance under a law of the Commonwealth makes, either orally or in writing, any untrue statement shall be guilty of an offence. Penalty: Imprisonment for 2 years." 15 For completeness it should be noted that s 29D, which was introduced in 1984, provides: "29D Fraud A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence. Penalty: 1,000 penalty units or imprisonment for 10 years, or both."

The reasoning of the learned primary judge 16 In allowing the appeal Crispin J held that it was incumbent upon the informant to prove that the defendant had, by his untrue representations, actually deceived or misled CASA. His Honour concluded that there was no evidence that would have supported such a finding. CASA is, of course, a "public authority under the Commonwealth" for the purposes of s 29B. Each of the charges laid against the respondent had alleged that he had imposed upon CASA by an untrue representation made with a view to obtain a benefit in that he represented that CASA was liable to pay for petrol purchased by him using the Shell Card. Interestingly, none of the charges alleged the statutory alternative of endeavouring to impose. It was in the light of the charges as formulated that his Honour found that although Shell may have been deceived or misled by the acts of the respondent, this was not sufficient to ground liability for the offences charged. CASA itself had neither been deceived nor misled by anything which the respondent had said or done. 17 Crispin J arrived at this conclusion after giving careful consideration to certain observations contained in the recent judgment of a Full Court of this Court in Guillot v Hender (1999) 104 A Crim R 589. In Guillot their Honours Wilcox, Finn and Kenny JJ said, in a joint judgment, at 594: "It may be as well to make clear that what is imposed upon the Commonwealth or public authority under the Commonwealth is the untrue representation (which, … in the case of an imposition, as distinct from an endeavour to impose, actually misleads or deceives the Commonwealth or relevant authority). The representation need not serve as a means by which some further burden or detriment is imposed upon the Commonwealth or a relevant authority." (emphasis added) 18 Their Honours reiterated this view of the scope and operation of s 29B when they said at 597: "In order to establish an imposition, as distinct from an endeavour to impose, the Crown is required to establish that the Commonwealth or Commonwealth authority was deceived or misled by the representation …" (emphasis added) 19 Crispin J concluded that he ought to follow this reasoning notwithstanding his own doubts as to its correctness. His Honour said: "Had it not been for the decision of the Full Court of the Federal Court of Australia in Guillot & Ors v Hender & Anor (1999) 104 A Crim R 589 I would have thought that the weight of authority was compelling and the appellant's conduct plainly fell within the terms of the section. The appellant made an untrue representation and as a consequence of that representation the relevant authority, CASA, had incurred a financial liability. As a matter of common English usage, the concept of being "imposed upon" would plainly extend to the imposition of unwarranted obligations or other detriments. Hence, people may fairly complain of being "imposed upon" if their guests raid their cellar during their absence and drink their best wine or make a series of international calls from their telephone without their consent. It is true that s29B contains the added requirement that the imposition be "by any untrue representation" but I would have been inclined to think that these words meant no more than that the imposition must have been caused by or facilitated by an untrue representation even if made to a third party." 20 His Honour's reference to "the weight of authority" being compelling and supporting the view that the offences were made out is explained by his analysis of a series of cases in which the offence of imposition was held to have been committed in circumstances where the untrue representation was made not to the Commonwealth, or to any relevant authority, but to a third party. In Jacobson v Piepers; Ex parte Piepers [1980] Qd R 448 (cited as Jacobsen v Piepers in (1980) 32 ALR 293 and (1980) 51 FLR 247) the Queensland Court of Criminal Appeal held that an untrue representation made to a third party could amount to an imposition upon a public authority under the Commonwealth. A customer had used his Bankcard to purchase goods from retailers. In doing so he had obtained credit beyond the approved limit. Whatever untrue representation he had made had been made to the retailers, and not to the Commonwealth Trading Bank which was the relevant authority. However, the Bank itself had been imposed upon by that untrue representation because it had been required to make payment beyond the agreed limit. 21 Crispin J also observed that Jacobson v Piepers had been followed by Burt CJ, sitting as a judge alone in the Supreme Court of Western Australia, in Bryce v Curtis (1983) 51 ALR 73, and also by the Queensland Court of Criminal Appeal in R v Baxter (1987) 88 FLR 456. In the latter case, Carter J said at 463 that: "The representation need not be made to the Commonwealth for there to be an imposition on the Commonwealth …"

The appellant's contentions 22 The appellant submitted that the observations in Guillot to which Crispin J referred, and which his Honour had felt constrained to follow, were erroneous. It was submitted that contrary to what the Full Court had there said, it was not a requirement of the offence of imposition under s 29B that the untrue representation be made to the Commonwealth or a public authority under the Commonwealth, or that the Commonwealth or the authority be deceived or misled by it. 23 The appellant submitted that the elements of s 29B were authoritatively set out by Owen J in Bacon v Salamane (1965) 112 CLR 85 at 92 where his Honour said: "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." 24 It is clear from this passage that the obtaining of a benefit or advantage is not itself an ingredient of the offence of imposition although it may be probative of its having occurred. It is also clear from the same passage that the mere making of an untrue representation does not, of itself, constitute the offence of imposition. 25 What is not made clear in Bacon v Salamane is whether or not the untrue representation must be made to the Commonwealth, or to a public authority under the Commonwealth, or whether it can be made to a third party. And if it can be made to a third party, is it sufficient that only the third party was deceived or misled by it? Or must it be shown that the Commonwealth, or a public authority under the Commonwealth, was deceived or misled by the untrue representation as well? 26 The appellant submitted that Crispin J had been correct in observing that the "weight of authority" was compelling in support of the contention that the respondent's conduct fell within the scope of s 29B. This was so notwithstanding that when he presented the Shell Card he had made no representation whatever to CASA. Moreover, CASA itself had neither been deceived nor misled by whatever untrue representation he had made. 27 The appellant submitted that it was clearly established that an untrue representation made to a third party, such as a retailer, could give rise to an imposition under s 29B. For example, in R v Lockett (1980) 27 ALR 444 the South Australian Court of Criminal Appeal held that the offence of imposition was made out in circumstances where a sum of money had been obtained from a branch of the Commonwealth Trading Bank by falsely representing that a Commonwealth Bankcard was in credit. Zelling J, who delivered the principal judgment of the Court, said at 447: "It is true that the bank may not have been imposed on as such but certainly individual officers acting for and on behalf of the bank were." 28 However, as Crispin J correctly observed, R v Lockett is of no assistance to the appellant's case in this regard. The representations made in that case had clearly been made to a relevant Commonwealth authority, albeit via its employees. Lockett is not, in truth, a third party case. 29 Of greater relevance to the appellant's submissions are the three cases to which Crispin J specifically referred, namely Jacobson v Piepers, Bryce v Curtis, and R v Baxter. 30 In Jacobson v Piepers, as noted above, the defendant had been issued with a Bankcard by the Commonwealth Trading Bank. The credit limit was $500. He used the card on a number of occasions to purchase goods from retailers to a total value of $1,277 after his $500 credit had been fully drawn and where, by prior arrangement, the sum of $1,277 had to be paid to the retailers by the Bank. The Queensland Court of Criminal Appeal held that this was an imposition on the Bank. 31 Douglas J said at 451-2: "It is necessary now to consider to whom the representation may be made, this being a point which did not arise for discussion in Bacon v Salamane …. The first element in the offence is that there is an imposition on the Commonwealth, or upon a public authority under the Commonwealth by an untrue representation, untrue to the knowledge of the person charged. In these cases there would be an imposition on the public authority due to the untrue representations either direct or implicit of the appellant to the various suppliers of the goods representing the benefits she obtained, for which the public authority had to pay. The second element is that the representation was made with a view to obtaining the benefits she obtained. The question is as to whether the representation is sufficient if made to a third party with a resultant imposition, in this instance, on the public authority of the Commonwealth, or whether the representation has to be made to the public authority. Looking at the section, and the plain grammatical meaning of the words therein, the phrase "by any untrue representation" is entirely unfettered, but the phrase "imposes or endeavours to impose" is fettered by the description of on whom one may impose. I take the view, perhaps simplistically, that this is the resolution of the matter. The result is that the representation may be made to someone other than the Commonwealth or a public authority under the Commonwealth provided that the imposition is as described in the section." 32 WB Campbell J said at 455-6: "The terms of s. 29B are very wide and show that the elements which have to be proved in relation to the offence are the following: the person charged imposed upon the public authority by an untrue representation and the representation was made with the object or for the purpose of obtaining money or some other benefit or advantage: see Bacon v Salamane (at p. 92), per Owen J. As was said by Rich J. in Hansen v Archdall [(1930) 44 CLR 265]at p. 274, "… the word 'imposed' is treated as equivalent to deceive or to get the better of". By means of the untrue representation the applicant got the better of the Bank by obtaining credit on her card which the Bank had not authorised; the Bank was imposed upon. I do not consider that the section should be read down so as to mean that the untrue representation must be made to the Commonwealth or to the public authority. The imposition must be on the Commonwealth or the authority and must result from the untrue representation, but the section does not provide that the representation has to be made to the Commonwealth or the authority as distinct from being made to a third party. In my opinion, the benefit obtained by the applicant, whether in each case it be the particular goods or the extension of her credit with the Bank, could not in any sense be said to be too remote from the representation made." 33 Connolly J agreed, stating at 460: "Here the Commonwealth Trading Bank suffered an imposition by reason of its antecedent obligations to the retailers but the imposition which it suffered namely payment beyond the agreed limit, was occasioned by the untrue representation even though that representation was not made to it. The representation was made with a view to the obtaining of the benefit of the goods and the appellant is within the language of s. 29B." 34 The appellant submitted that Jacobson v Piepers is authority for the proposition that an untrue representation may be made to a third party and still give rise to an offence of imposition under s 29B. The appellant further submitted that the same case is authority for the wider proposition that the gist of the offence is the "burden or disadvantage" occasioned by the representation, and not whether it has deceived or misled the Commonwealth or a public authority. 35 In Bryce v Curtis Burt CJ seemingly endorsed this approach when he said at 77: "If the appellant knew, and it was held that he did know, that the credit limit on the card had been exceeded and that he ought not in those circumstances to use the card, than by presenting it to Craigs he was making a representation which was untrue; namely, that he was presenting an operative or valid card, when he was not, and that he made that representation with a view to obtaining some clothing, goods of a certain value. He did not make the representation of course directly to the Commonwealth Trading Bank, but that is not required by the section. Having done those things, whether thereafter the bank paid Craigs voluntarily or otherwise I think to be irrelevant, and I would apply generally to the situation of the case the reasons for decision in the Queensland case of Jacobson v Piepers [1980] Qd R 448." 36 Similarly in R v Baxter the Queensland Court of Criminal Appeal adopted the same view of s 29B as an earlier court had done in Jacobson v Piepers. 37 The appellant submitted that the observations of the Full Court in Guillot which Crispin J had relevantly followed were, in truth, mere dicta. The point raised on appeal in that case was that the offence of imposition had not been committed because the untrue representations concerning the quantity of Orange Roughy made to the Australian Fisheries Management Authority ("AFMA") were made at a time when, unbeknown to anyone, there was no valid quota scheme in operation as a result of an earlier decision of the Court to the effect that the particular Management Plan was invalid. It was submitted in Guillot that there could not have been any "burden or disadvantage" placed upon AFMA in those circumstances. However, the false statements which were made had been made directly to AFMA, and not to any third party. They were made with a view to obtaining a benefit or advantage, namely the benefit of enabling the defendants to fish for a further quantity of Orange Roughy equivalent to the amount which had been underdeclared. 38 The appellant submitted that the issue before Crispin J in the present case, whether it was an element of the offence of imposition that CASA had been deceived or misled by the untrue representations made by the respondent, or whether it was sufficient that it had been placed under a "burden or disadvantage", had not arisen for determination in Guillot. It was submitted that his Honour had correctly appreciated that the weight of authority was compellingly in favour of the view that this offence could be made out notwithstanding the absence of any evidence to suggest that CASA had been deceived or misled in any way. It was submitted that his Honour ought to have followed his own preferred construction of s 29B, and that he had erred by following instead the dicta of the Full Court in Guillot.

The respondent's contentions 39 The respondent acknowledged that the observations of the Full Court in Guillot which formed the basis of Crispin J's judgment were, strictly speaking, dicta. The respondent submitted, nonetheless, that his Honour had acted correctly in following the reasoning of the Full Court in preference to the decisions of the various State courts to the contrary. The passages in the judgment of the Full Court to which his Honour referred were carefully expressed, and represented the considered views of this Court as to the elements of the offence of imposition. As such, his Honour had acted prudently in following this decision. Moreover, it was submitted that this Court should not depart from what was said in Guillot unless it was demonstrated that the views expressed by the Full Court in that case were plainly wrong. 40 The respondent submitted that Bacon v Salamane (supra) had determined that the offence of imposition required the prosecution to establish that the Commonwealth, or the public authority under the Commonwealth, had been "imposed upon". The respondent accepted that the making of an untrue representation does not, of itself, constitute the actus reus of the offence. The respondent also accepted that the offence of imposition may be made out where the untrue representation is made to a third party, and not to the Commonwealth, or the relevant public authority, with the proviso that the Commonwealth or the authority must actually be deceived or misled. 41 The respondent submitted that a careful reading of the third party cases demonstrated that the effect of the defendant's actions in all of them was that the representation made to the third party was "sheeted home" to the Commonwealth or the public authority. In other words, it was the Commonwealth or the authority that was ultimately deceived or misled by the untrue representation in the third party cases, although that may have been via the conduit of a third party. It was submitted that this could not be said of CASA in the present case. The third party cases were therefore said to be distinguishable. 42 The respondent submitted, in the alternative, that the third party cases were wrongly decided, and that the views expressed by the Full Court in Guillot should be followed in preference to those cases.

Analysis of the competing contentions 43 On the appellant's case, the offence of imposition has, as one of its central elements, the placing of a burden or disadvantage of some kind upon the Commonwealth or the relevant authority. That burden or disadvantage must be the product of the making of an untrue representation. There must also be present the requisite mens rea, that is "a view to obtain money or any other benefit or advantage". However, it is not a requirement that the untrue representation be made to the Commonwealth or the authority. Nor is it a requirement that the Commonwealth or the authority be deceived or misled. 44 On the respondent's case, the offence of imposition requires it to be proved that the Commonwealth or the relevant authority was deceived or misled. The untrue representation may be made directly to the Commonwealth or the authority, or via a third party. However, it is not sufficient that the third party alone be deceived or misled by that representation even if the effect be to place a burden or disadvantage upon the Commonwealth or the authority. 45 It is clear that the questions raised for determination in this appeal raise issues upon which reasonable minds may differ. It is of course important, wherever possible, that the decisions of State courts on the interpretation of Commonwealth legislation should be in harmony: R v Parsons [1983] 2 VR 499. In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 the High Court stressed the need for intermediate appellate courts to follow the decisions of other intermediate appellate courts when construing national legislation. The decisions of the Queensland Court of Criminal Appeal in Jacobson v Piepers, and of Burt CJ in Bryce v Curtis are entitled to be accorded very considerable persuasive value. 46 However, the Full Court of this Court is bound to follow an earlier decision of the Full Court, such as the decision in Guillot, unless persuaded that the reasoning in the earlier case is plainly incorrect. In Telstra Corporation Limited v Treloar [2000] FCA 1170 Branson and Finkelstein JJ proposed what may be an even more stringent test when their Honours observed at par 28: "The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand." (emphasis added) See also Transurban City Link Ltd v Allan (1999) 95 FCA 553 at 561; and The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 at par 123 per Gyles J. 47 There is obviously a degree of tension, and potential conflict, between the need for there to be comity between decisions of the Full Court of this Court and other intermediate State appellate courts, and the need for there to be comity as between differently constituted Full Courts of this Court. 48 We propose to approach the difficulty arising from the different approaches apparently taken by the State courts and by the Full Court in Guillot by construing s 29B for ourselves, in the light of its history and background. Only then will we turn to the question of where the weight of authority lies and what, if any, emphasis should be given to that consideration.

The history of the offence of imposition 49 The offence of imposition has its origins in legislation providing for the punishment of rogues and vagabonds. Statutes making provision for such punishment can be found as far back as the middle of the 14th Century: see The Statute of Labourers 1349. However, the forerunner of the major 19th Century legislation dealing with rogues and vagabonds was 14 Eliz ch. v (1572). 50 In 1822 a consolidating Act for England was enacted. That was 3 George IV ch. xv. It provided that: "All persons imposing or endeavouring to impose upon a Church Warden or Overseer of the poor or upon a 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 advantage or benefit, shall be deemed rogues and vagabonds …" 51 This Act was repealed by the single most important 19th Century statute dealing with this subject: the Vagrancy Act 1824 (UK). That Act re-enacted some of the previous provisions deeming certain persons to be rogues and vagabonds. However, it did not include any provision such as that which deemed persons imposing on charitable institutions as falling within this category. It is of interest to note that it did include, for the first time, a provision to the following effect: "…every person wandering abroad and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence". 52 On the establishment of the Colony of New South Wales, the English law relating to rogues and vagabonds was considered not to apply: Copely v Simpson (Dowling J, unreported, Supreme Court of New South Wales, 23 March 1831). 53 The first Act which provided for the punishment of rogues and vagabonds in New South Wales was 4 William IV No 6 in 1835. That Act provided in terms which were almost identical to those contained in the 1822 consolidating Act in England that 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 were deemed to be rogues and vagabonds. Such persons were liable to imprisonment with hard labour for two years. The same provisions were re-enacted by 15 Vict. ch. iv (1851). 54 It is clear therefore that the 1835 Act in New South Wales introduced the very offence of imposing upon a charitable institution which had been abolished in England by the Vagrancy Act 1824. Similar provisions in the Vagrancy Act 1851 (Qld) and the Police Offences Statute 1865 (Vic) were said to be productive of "varying judicial decisions" about whether they applied to impositions other than those by which it was sought to cheat charities, such as the practice of fortune telling: R v Armstrong (1880) 7 VLR 234. 55 In Hansen v Archdall (1930) 44 CLR 265 Isaacs CJ and Gavan Duffy J said, in reference to the Vagrancy Act 1851 (Qld) at 272-273: "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 (that is a statement of fact, and not a promise) in order to obtain from the institution or individual as the direct or proximate result of representation money or some other benefit or advantage, that the provision is contravened. It does not extend to any case where the representation is honestly made, even thought it is false, because the first branch of the provision is not satisfied. Nor does it extend 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." 56 Starke J discussed the history of the legislation and commented at 278: "One view is that the words of the Act are wide enough to include the indictable offence of false pretences, and a large number of fraudulent practices that would not be reached by that elastic charge …. Another view is that sec. 3 is limited to cases of imposition by false and fraudulent representation whereby benefits are sought or obtained from another by way of benevolence or charity …. Neither view can, in my opinion, be supported: the former is too wide and the latter is too narrow." 57 Starke J continued at 279: "The view that the section is limited to the case of persons obtaining benefits by way of benevolence or charity by imposition, is, I think, too narrow, because it would exclude a considerable number of 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. In such cases, the question whether an imposition was practised or attempted must depend largely upon the circumstances, and that would be a question of fact for the tribunal dealing with the case …." 58 The links between the old Vagrancy Act provisions and the offence created by s 29B are obvious. However, in Bacon v Salamane (supra) Windeyer J cautioned at 90: "… 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. It does not follows that, their background being removed, words and phrases that appear in those Acts retain elsewhere the meaning they had there." (footnote omitted) 59 It is instructive to note that his Honour there took a very different approach to the construction of s 29B from that taken by Scott LJ, in a somewhat different context, in Ledwith v Roberts [1937] 1 KB 232. His Lordship there observed at 275: "The Vagrancy Act of 1824 differs little from the long string of earlier Acts in the Legislature's attitude to the class of idle and disorderly persons except that it is simply a punishment Act, and not, as the earlier Acts were, partly a punishment Act and partly an Act for the relief of the poor. … The phrases "idle and disorderly" and "those who use loitering" are recurrent and both apply to the class. When those phrases appear again in statutes of the 19th century passed not long after the Act of 1824, which was the last of the series, they should not, in my view, be interpreted in a sense foreign to that in which they had previously been used." 60 When the Bill to enact ss 29A, 29B and 29C received its Second Reading on 28 January 1926, the Attorney-General, Mr Latham, said nothing about vagrancy, vagabonds, or the protection of charities from cheats. His concern was rather with Part IIA of the Act, introduced at the same time, and the steps which it took to meet a perceived threat of communism and acts prejudicial to the peace of the Commonwealth.

The meaning of the verb "imposes" in s 29B 61 The words "imposes" or "to impose" are not to be found in the usual legal dictionaries except in the sense of placing a burden upon a person by way of tax or penalty. 62 In construing a statute, the language chosen by the draftsman is normally given its ordinary natural meaning. There can be little doubt that the primary sense in which the verb "to impose" is now used in a legal context is "to place a burden upon", "to inflict something on or upon", "to levy on", "to set on", "to put upon" or "to place an obligation upon". These definitions, and others like them, are found in all the standard dictionaries. 63 However, the concept of "imposing upon" is one of considerable antiquity. Regard must be had to the statutes in which the offence of imposition was first formulated. It is clear that the word "imposes" in those statutes was used in a different, and perhaps less usual, sense. That secondary meaning of the expression "to impose upon" is contained in the Oxford English Dictionary which describes it as being: "To practise imposture; with upon, on, to cheat or deceive by false representations." The expression appears to have been first used in this sense in 1662. It was widely used to mean "cheating or deceiving by false representations" throughout the 18th and 19th Centuries. 64 The word "imposture" referred to in the definition is now obsolete. However, historically it meant the action or practice of imposing upon others: wilful and fraudulent deception; the deception of unreal or feigned appearances; an act of fraudulent deception; a cheat, a fraud. The modern noun "imposter" plainly derives from the older word "imposture". 65 It is this secondary meaning now ascribed to the verb "impose" which seems to us to lie at the heart of the offence of imposition as that offence was originally formulated in the statutes providing for the punishment of rogues and vagabonds. 66 The current practice is that the words of a statute are normally interpreted in accordance with their ordinary and current meaning. This was not always so. The approach of the courts used to be that Acts were construed in accordance with their natural meaning as at the date of their enactment: DC Pearce and RS Geddes, Statutory Interpretation in Australia 4th ed, at par [4.6] comment: "This rule was given the Latin title, contemporanea expositio est optima et fortissima in lege. It is clear now, however, that the operation of this rule in its fullest extent had been abandoned except perhaps in the construction of ambiguous language used in very old statutes where the language itself may have had a rather different meaning. …" (emphasis added) 67 Frances Bennion, Statutory Interpretation 3rd ed, comments at p 939: "Rarely the legislator may use a term which is archaic or obsolete. Here the interpreter must give the term what appears to be its intended meaning, having regard to changes since it was current. … Sometimes (though very seldom) a term is inserted in an Act even though it is known to be archaic. This may be a technical or non-technical term. It is presumed that the term is intended to have its archaic meaning, though that does not prevent its meaning in the Act from being developed by the courts in the ordinary way." (emphasis added) 68 The position in Canada is that the courts draw a sharp distinction between ordinary legislation and constitutional texts. With respect to ordinary legislation, the original meaning is presumed to prevail. With respect to constitutional texts the courts adopt a dynamic or ambulatory approach. Constitutional texts are not tied to the framer's original understanding but evolve in response to both linguistic and social change: R Sullivan, Driedger on the Construction of Statutes 3rd ed, at 137. A similar approach appears to prevail in this country. 69 The links between s 29B of the Crimes Act and the old rogues and vagabonds provisions are so clear and direct that the meaning to be ascribed to the offence of imposition under the Crimes Act must surely be heavily influenced by the interpretation accorded to those old provisions. The rogues and vagabond provisions must necessarily have been at the forefront of the minds of the draftsman of s 29B when that section was first introduced in 1926. No other conclusion is reasonably open.

Conclusion 70 There is one additional authority which seems to us to be of particular assistance in resolving the issues raised in this appeal. In R v Wescombe [1987] VR 1012 the Full Court of the Supreme Court of Victoria dealt with an appeal against a conviction in the County Court on an indictment containing eleven counts framed under s 29B of the Crimes Act. The appellant had issued a taxi voucher in the name of Jones which was not used by that person but by the appellant himself. It appeared that the appellant would have been entitled to use a taxi voucher in his own name had he wished to do so. He therefore argued that as the offence of imposition required proof that he had "cheated or defrauded" the relevant public authority, that offence could not be made out. 71 The Full Court held by majority that it was not necessary for the prosecution under s 29B to establish that the accused cheated or defrauded or endeavoured to cheat or defraud the Commonwealth or a relevant public authority. Murray J referred to Bacon v Salamane (supra), and also to Jacobson v Piepers (supra) and Bryce v Curtis (supra). Referring to what Windeyer and Owen JJ had said in Bacon v Salamane he concluded at 1016: "It will be seen that the judgments of the High Court did not turn upon the question of whether the respondent cheated or defrauded the Commonwealth …. The High Court considered that the offence was established if it was proved that he made a false representation for the purpose of obtaining a benefit or advantage. … It follows in my opinion that it was not necessary for the Crown to negative the claim by the applicant that he did not obtain a benefit or advantage to which he was not entitled by reason of the fact that if he had not used the voucher in the name of Jones he could have issued a voucher in his own name and would have been entitled to do so." 72 McGarvie J agreed with Murray J that it was not necessary for a prosecution under s 29B to establish that the person charged cheated or defrauded or endeavoured to cheat or defraud the Commonwealth or a relevant public authority. His Honour said at 1016-1017: "Cheating or defrauding involves causing a detriment to the person cheated or defrauded. I assume, without stating an opinion, that if the circumstances were as the applicant swore, the Commonwealth authority was not cheated or defrauded… For the applicant reliance is placed on what was said as to the meaning of "impose upon" in Hansen v Archdall …and in Lamb v Toledo-Berkel Pty Ltd …. The meaning given to the words in those cases was not cheat or defraud. In the first case the meaning given was "cheat or wilfully deceive" (at p.270, per Isaacs CJ and Gavan Duffy J) or "deceive or get the better of" (at p.274, per Rich J) … While cheating and defrauding import the causing of a detriment, wilfully deceiving does not ordinarily involve the imposition of a detriment. The words used in the cases above indicate that a person imposes upon the Commonwealth or authority either by cheating it or by wilfully deceiving it. Cheating involves both wilfully deceiving and causing a detriment to the Commonwealth authority. If the applicant did what he said he did, that clearly amounted to wilfully deceiving the Commonwealth authority in the sense of wilfully misleading it." (emphasis added) 73 His Honour continued at 1017: "An examination and comparison of ss. 29A, 29B and 29C of the Crimes Act indicates that within the meaning of s. 29B a person who wilfully misleads the Commonwealth or authority imposes upon it. The change from the words "with intent to defraud" used in the offences created in s. 29A(1) and (2) and punishable by five years' imprisonment, to the words "impose upon" in the offence punishable by two years' imprisonment created by s. 29B, strongly suggests that the latter expression involves different and less reprehensible conduct than the former." 74 Crispin J did not refer to R v Wescombe in his reasons for judgment. However, in our view the decision is in point, and the observations of McGarvie J in particular strongly support the interpretation accorded to s 29B by the Full Court in Guillot. McGarvie J concluded that it was an element of the offence of imposition that the Commonwealth or the authority be deceived. That interpretation accords with the history of the offence of imposition, as discussed above. It is likely that the intention of the legislature, when the offence was created in 1926, was to make it a crime to "cheat or deceive" the Commonwealth, or a relevant public authority, provided only that there be an untrue representation made and an intention thereby to obtain money, a benefit or an advantage. 75 CASA was not imposed upon within the meaning of that concept in s 29B because it was not deceived or misled by anything said or done by the respondent. The fact that "a burden or disadvantage" may have been placed upon it as a result of the respondent's untrue representation to a third party does not mean that the offence under s 29B was made out. 76 It is of course possible that that the respondent's conduct constituted an offence, or various offences, under the provisions of the ACT Crimes Act. That is not to the point. It did not constitute the offences charged. 77 We are fortified in our conclusion that s 29B should be given the somewhat narrower construction for which the respondent contends by the observations of Gibbs J (as his Honour then was) in Beckwith v The Queen (1976) 135 CLR 569 at 576 where his Honour said: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences …" (emphasis added) 78 Finally, it should be noted that on 24 November 2000 the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 received Royal Assent. The Act repeals ss 29A, 29B, 29C and 29D of the Crimes Act. The offence of imposition under s 29B appears to have been replaced in the new Act by Pt 7.4 and, in particular, by Divs 136 and 137. The new provisions create offences of false or misleading statements made to Commonwealth entities or persons exercising powers or performing functions under or in connection with a law of the Commonwealth. The Act as a whole has not yet come into force. The new provisions with which the issues raised in this appeal are concerned will come into operation when they are proclaimed. There is no indication as yet as to when that will be. However, it is interesting to note that the new provisions will operate in a manner which is, in general, consistent with the interpretation which we consider ought properly to be accorded to s 29B. 79 In our opinion Crispin J acted correctly in following the reasoning of the Full Court in Guillot in preference to the reasoning in Jacobson v Piepers and Bryce v Curtis. Although the Full Court's observations in Guillot were, strictly speaking, obiter, those observations were the product of careful consideration, and reflected a thorough and comprehensive analysis on the part of the members of the Court of the relevant authorities. In our view, Guillot sets out clearly and accurately the elements of the offence of imposition under s 29B of the Crimes Act. The reasoning in Guillot accords too with the views of the Full Court of the Supreme Court of Victoria in R v Wescombe. To the extent that Guillot and Wescombe are at odds with Jacobson v Piepers and Bryce v Curtis, the views expressed in the former two cases are to be preferred to those expressed in the latter two cases.

80 For these reasons, the appeal should be dismissed. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 16 February 2001 Counsel for the Appellant: Mr P Hastings QC

Solicitor for the Appellant: Commonwealth Director of Public Prosecutions

Solicitor for the Respondent: pappas, J - Attorney

Crimes Act 1914(Cth)ss 29A, 29B, 29C, 29D

Vagrancy Act 1851(Qld)

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