Montgomery v Stewart

Montgomery v Stewart - [1967] HCA 11 - HCA 1967 case summary — Zoe

[6]

Reliance was placed by the appellant upon the decision of this Court in Johnson v. Miller [1] as supporting the view that because of the exculpating provision only one statement could be made the basis of an information under s. 43. Properly understood, that case, in my opinion, lends no support to such a submission. The majority of the Court there decided that as the prosecution at the hearing of the information persisted in refusing to give any particulars of a person said to be seen coming from the licensed premises, the magistrate was justified in dismissing the information. The majority accepted the view, which was fundamental to its decision, that upon its true construction, s. 209 of the Licensing Act, 1932-1935 S.A. created a separate offence in respect of each person who is seen coming out of the licensed premises, unless perhaps a number of persons, acting in combination, are seen coming out of the premises at the one time: Johnson v. Miller [1] . On this footing, it was said that unless the occasion the subject of the charge was identified, the information was defective. That a means of exculpation was provided by the statute, in my opinion, was not the basic reason for this construction, though reference is made in the reasons for judgment to that circumstance as supporting it. It seems to me that the same conclusion must have been reached by the majority upon its approach to the statute whether or not a means of exculpation had been provided by it. The view might have been taken that in substance the statute required the licensee not to have any persons upon his premises during the specified time and that therefore upon its true construction the section made it an offence if any person was seen emerging from his premises in that time unless as to all persons then emerging the exculpation could be established. But the majority did not place that construction on the section. In the present case, I cannot place upon s. 43 any construction comparable to that placed upon s. 209 of the Licensing Act S.A. in Johnson v. Miller [2] . It seems to me therefore, as I have said, that that case does not assist the appellant.

[13]

The relevant portion of s. 43 is in the following terms: "Where in a prospectus there is any untrue statement or wilful non-disclosure any person who authorized the issue of the prospectus shall be guilty of an offence and liable to imprisonment for a term of not more than twelve months or to a penalty of not more than Five hundred pounds or both unless he proves either that the statement or non-disclosure was immaterial or that he had reasonable ground to believe and did, up to the time of the issue of the prospectus, believe the statement was true or the non-disclosure immaterial: " It is the applicant's contention that where a prospectus contains a number of false statements those responsible for its publication commit a separate offence in respect of each false statement. I should have thought that were it not for the manner in which the words of exculpation are expressed in the concluding part of the section the proposition would plainly be unarguable. Leaving those words aside for the moment it seems clear enough that the conduct proscribed is the authorizing of the publication of a prospectus which contains "any untrue statement" and that the offence created by the section will be committed by a person who authorizes the publication of a prospectus which contains either one or a number of false statements. It may be compared with s. 169 of the Crimes Act 1958 Vict. which provides, inter alia, that whosoever being a director, manager or officer of any body corporate or public company publishes or concurs in publishing any written statement which he knows to be false in any material particular with intent to deceive or defraud any member shareholder or creditor of such body corporate or public company or with intent to induce any person to become a shareholder or partner therein, or to entrust or advance any property to such body corporate or public company, or to enter into any security for the benefit thereof, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than seven years. It was a substantially similar section (Larceny Act, 1861 U.K., s. 84) which was under consideration in R. v. Kylsant (Lord) [1] , and, although it was held that the falsity of the prospectus was to be found in the failure to disclose a number of particulars with respect to the company's trading between 1921 and 1927 it was not suggested and did not occur to the Court of Appeal that the evidence, if it disclosed any breach of s. 84 of the Larceny Act at all, disclosed several breaches. A like comment may be made regarding the cases of R. v. Bishirgian [1] and Reg. v. Mackinnon [2] . I refer also to the form of indictment for an offence under s. 84 of the Larceny Act, 1861 given in Archbold's Criminal Pleading Evidence & Practice, 36th ed. (1966), pars. 2016 and 2040 and observe that it appears to have been a form which has been generally followed. It was substantially followed in the Registrar of Companies v. Brierley [3] , where the charge was laid under s. 54 (1) of the Companies Act, 1955 N.Z., which is in similar terms to s. 43 of the Companies Act 1958 Vict., and no fault seems to have been found with it.

[16]

I do not, myself, think that any difficulty arises on this score but before dealing with the contention it is not out of place to mention some of the anomalies which would arise if the applicant's contention were accepted. In the first place, it is said, a conviction, or an acquittal, for an offence under s. 43 would not constitute a bar to another prosecution or other prosecutions in respect of other statements in the prospectus which were also found or thought to be false. So that, depending upon the number of false statements made, the penalties prescribed might in the aggregate exceed those for an offence under s. 169 of the Crimes Act Vict. where, admittedly, the same line of reasoning cannot be employed to reach the conclusion that that section creates a separate offence in respect of each false material particular. It is plain I should think that the publication of a prospectus, or the concurrence in such publication, which contains any false statement is an offence under that section and a conviction or acquittal on any such charge would be a bar to any further proceedings against the same accused in respect of the same publication even though different particulars of the alleged false statement might be given on a subsequent occasion. Such particulars could not operate to change the substance of the charge and it is clear that the evidence necessary to support such a second charge would have been sufficient to procure a conviction on the first charge. But if we are to accept the applicant's contentions as to the effect of s. 43 an acquittal, or conviction, for the offence created by s. 169 would be no answer to a charge under s. 43 if the false statement alleged was one not particularized in relation to the charge under s. 169. Yet, it should be observed, an acquittal on an earlier charge laid under s. 169, or under s. 43 itself, might rest upon a finding that the accused had not concurred in or authorized the publication of the prospectus or upon failure of the prosecution to establish that he had done so. I find it difficult to conceive that these results were intended.

[17]

However, as already appears, the applicant relies mainly on the apparent literal difficulty arising from the form of the exculpatory words and on this point we were referred to the case of Johnson v. Miller [1] . There the appellant had been charged in the language of s. 209 (1) of the Licensing Act, 1932-1935 S.A., the information alleging that he was the licensee of premises out of which certain persons were seen coming during prohibited hours. It should be mentioned that at the hearing the information was amended by deleting "certain persons" and by substituting therefor "a certain person" and the charge was dismissed by the magistrate, as I understand the case, because the Crown refused to give sufficient particulars concerning the "certain person": the particulars given, in the circumstance, merely indicated, without any further identification, that he was one of some thirty men who had been seen coming out of the premises between 9 a.m. and 10.45 a.m. on the date charged. Additionally, it seems, the prosecutor proposed to give evidence to the effect that some thirty persons had been seen coming out of the premises during this period. Now s. 209 (1) provided that a licensee might exculpate himself if he proved to the satisfaction of the magistrate that the person "(a) was not on the premises for any purpose contrary to the provisions of this Act; or (b) was on the premises contrary to the will of the licensee, and that the licensee took all reasonable steps to prevent the said person from entering the premises and to remove him therefrom; or (c) was on the premises without the knowledge of the licensee, and that the licensee exercised all practicable diligence to prevent the said person from entering or being on the premises." The difficulty in the way of the licensee was that unless the prosecution provided particulars sufficient to enable him to identify the "certain person" it would be impossible to establish whether he fell within any of the three categories. It is true that Dixon J., as he then was, referred to the exculpatory provisions but he did so because, as he said, "No licensee could succeed in bringing the case within any of these grounds of excuse unless the presence or departure of some identifiable person or collection of persons on some distinct occasion constituted the offence from which he must so exculpate himself" [1] , and not to reach his conclusion that the section created a separate offence in respect of each person seen leaving the premises during the prohibited hours. So much was clear enough; if one person was seen leaving the premises at 9.5 a.m. it is clear enough that the section operated and if another was seen to leave at 9.20 a.m. it operated again.

[19]

I do not think that the case is of any real help in solving the problem before us. The form of legislation employed in s. 43 is common enough (cf. e.g. Crimes Act Vict., s. 169; Companies Act U.K., s. 44; Customs Act Cth, s. 234 (d); and the Income Tax Assessment Act 1936-1966 Cth, s. 227) and the gist of the offence is authorizing the issue of a prospectus which contains any untrue statement, or, for that matter, any untrue statements. This view finds some support in the observations made by Dixon J. in Hughes v. Phillips [2] . The charge in that case was laid under s. 227 (1) of the Income Tax Assessment Act 1936-1946 Cth which provided "that any person who makes or delivers a return which is false in any particular shall be guilty of an offence". However, sub-s. (2) went on to provide that in any prosecution for an offence under that section of a person who had not previously been convicted of an offence against the Act, or against any law of the Commonwealth or of a State relating to income tax, it should be a defence if the defendant proved that the return was prepared or made by him personally and that the false return was made through ignorance or inadvertence. Concerning the charge laid under this section Dixon J. said: "It does not follow that, in a prosecution in which the informant avails himself of the construction which I have just assigned to those words [i.e. "in any particular"], the magistrate may not, if the interests of justice require it, insist upon the prosecutor giving particulars of the specific items in the return the falsity of which leads to the falsity of the final figure. That is a question upon which he has a discretion which he may exercise in order to see that the defendant knows the case he has to meet and is not taken by surprise or otherwise embarrassed" [1] . There was no suggestion that a separate offence was committed in respect of each false particular in spite of the fact that in the Court below Jordan C.J. had held that the information was bad for duplicity. Latham C.J. dealt expressly with this point and said: "Upon appeal to the Full Court, the learned Chief Justice was of opinion that the information was bad for duplicity. The other members of the Bench, Davidson J. and Street J., did not agree with this view. It is true that the charge contained in the information might have been established by showing understatement of income in respect of either the business of motion picture exhibitor or of commissions; but this fact, in my opinion, shows only that the charge made could have been supported by more than one class of evidence and not that several charges were made" [2] . Indeed all of the members of the High Court must have subscribed to this view because the order was that the conviction be restored. I observe also that this view seems to be implicit in the decision of the Supreme Court of Queensland in Ramm v. Gralow [3] where the charge was laid under s. 64 of The Income Tax Acts, 1924 to 1930 Q.. The gist of the offence was the making of the return which included false statements and, to my mind, the gist of the offence on the present case is the authorizing of the issue of a prospectus which contains any untrue statement or statements. I do not think that the exculpatory words - and the textual difficulty which they are said to introduce if the use of the singular word "statement" were to be read as including the plural - should be permitted, against the plain meaning of the earlier words, to control the construction of the section in such a fundamental way. The difficulty disappears if, in the case where a prospectus contains a number of false statements, the exculpatory words are read distributively so that if a number of false statements are particularized the defendant may exculpate himself by proving that some of the statements were immaterial and that the others, being material, he believed to be true. This, in my view, is the true meaning of the section and I would refuse special leave.

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