Morley v R [1999] WASCA 161

Bankruptcy - Appeal against conviction under Bankruptcy Act s 80(1) - Failure to tell trustee of change of address - Jury direction - Whether defence of honest and reasonable mistake available - Appeal dismissed

Bankruptcy Act 1966 (Cth) s 80(1) s 269(1)(ac)

Respondent : Commonwealth Director of Public Prosecutions

Gillis v The Queen (1993) 116 FLR 396

R v Calides (1983) 34 SASR 355

R v Reeves (1992) 29 NSWLR 109

Sebastiano Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993

Tripodina & Morabito (1988) 35 A Crim R 183

Woodthorpe v The Queen (1994) 14 WAR 215

1 IPP J: The appellant was convicted on two counts of contravening the Bankruptcy Act 1966. The first count alleged that, contrary to s 269(1)(ac) of the Act, the appellant obtained services from Finlay Phillips, a firm of solicitors, by promising to pay them fees of approximately $100,000 without informing them that he was an undischarged bankrupt_._ The second count alleged that, contrary to s 80(1) of the Act, the appellant failed to inform the trustee of his estate in bankruptcy of a change in his statement of affairs, namely his residential address.

2 Section 269(1)(ac) of the Bankruptcy Act provides that an undischarged bankrupt shall not obtain services from a person by promising to pay that person amounts aggregating $3000 or more without informing that person that he or she is an undischarged bankrupt. The Crown case in regard to the alleged contravention of this section was relatively simple. On 5 October 1993 the estate of the appellant was declared bankrupt. On 3 February 1995 Mr A J Goldfinch, a solicitor then employed by Finlay Phillips and acting on their behalf, entered into a retainer agreement with the appellant. On that date Mr Goldfinch told the appellant that the costs of the legal services that were to be rendered pursuant to the retainer agreement were likely to be $100,000 and the appellant promised to pay Finlay Phillips that sum for those services. In the course of the discussions that took place on 3 February 1995 concerning the entering into of the retainer agreement, the appellant did not inform Mr Goldfinch that he was an undischarged bankrupt.

3 The appellant did not dispute these facts. The only defence he sought to raise was that on 16 January 1995 he informed Mr Goldfinch that he had "never been discharged" from the bankruptcy order under which he had been placed on 5 October 1993. Mr Goldfinch denied that he had been so informed by the appellant.

4 It is questionable whether the appellant's defence (namely, that two weeks before the retainer agreement was entered into he advised Mr Goldfinch that he was an undischarged bankrupt) was an answer, in law, to the first count. There is clear authority that the appellant was obliged to disclose the fact of his bankruptcy "on the occasion of each relevant transaction": R v Scott (1996) 137 ALR 347 (per Doyle CJ at 353). On this basis, when he entered into the retainer agreement, he should have told Mr Goldfinch that he was an undischarged bankrupt. In any event, the jury rejected the appellant's version that on 16 January 1995 he informed Mr Goldfinch of his bankruptcy and found him guilty as charged.

5 The principal ground of appeal raised by the appellant in regard to the first count was that:

"The learned trial Judge erred in relation to count 1 in that the direction to the jury as to the onus and standard of proof was defective in not emphasising the presumption of innocence and in not specifically directing the jury that their task was not to choose between opposing evidence given by prosecution and defence witnesses."

The relevant direction of the trial Judge was as follows:

"In every criminal trial ... the onus of proof, as lawyers put it, lies on the Crown from start to finish. That means the Crown must prove its case and all the elements of that case beyond reasonable doubt. It means that the accused does not have to prove anything. It means, put it another way and even stronger, the accused does not have to disprove anything. The onus always remains with the Crown, so in a case of this nature where credibility is going to be one of your primary considerations, ... remember the onus never shifts to the accused.

You must be satisfied beyond reasonable doubt that these offences did occur before you can convict. The onus never shifts to the accused and you must always remember that."

The learned Judge went on to read out the terms of the first count and then said:

"As you have heard, all the elements in that have been admitted by the accused bar one; that is, that he did not inform. He says he did. So that all boils down to, as I said, did he tell them? Did he advise that firm when he engaged them, instructed them? Every other element is admitted so it just comes down to that one issue."

His Honour referred to the conflict between the appellant and Mr Goldfinch and said:

"[T]here the issue arises. Mr Goldfinch says he wasn't told. It's as simple as that. The accused says he was and that Mr Goldfinch knew he was an undischarged bankrupt ... -denied by Mr Goldfinch. A good jury question in applying the principles I have hopefully explained to you and that's the issue on count 1."

6 It was submitted on the appellant's behalf that his Honour's direction contravened the principles expressed in Liberato v R [1985] HCA 66; (1985) 159 CLR 507 by Brennan J (at 515), namely:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a Judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

It was argued that the trial Judge erred in failing to tell the jury that, even if they did not positively believe the appellant, they should not find that, on 16 January 1995, he did not tell Mr Goldfinch that he was an undischarged bankrupt unless they were satisfied beyond reasonable doubt of the truth of Mr Goldfinch's evidence. It was also submitted that the learned Judge erred in failing to tell the jury, expressly, that they should not find against the appellant on this issue should they find that his evidence gave rise to a reasonable doubt as to the disclosure.

7 I am unable to accept these submissions. The sole witnesses as to the disclosure issue were the appellant and Mr Goldfinch, who gave conflicting testimony. The learned judge described their different versions and immediately went on to warn the jury in very clear terms that the Crown was obliged to prove its case "and all the elements of that case" beyond reasonable doubt. His Honour told the jury that the appellant did not "have to prove anything" and "even stronger, the accused does not have to disprove anything". His Honour emphasised that the onus always remained with the Crown and pointed out that this was particularly relevant in the case before them as credibility was one of the primary considerations. Significantly, he told the jury that they should remember, in regard to credibility issues, that "the onus never shifts to the accused". After repeating that the jury had to be satisfied beyond reasonable doubt, the learned Judge proceeded to point out the particular credibility dispute that existed in regard to the disclosure of the appellant's bankruptcy. In doing so he told the jury that they had to resolve this credibility issue by "applying the principles" he had expounded.

8 In these circumstances, in my view, the learned Judge, in substance, complied with the requirements laid down in Liberato. The learned Judge did not tell the jury that they should find the appellant guilty if they accepted the evidence of Mr Goldfinch rather than the testimony of the appellant. His Honour made it perfectly clear that the Crown had to prove its case against the appellant beyond reasonable doubt and he emphasised that they were required to apply this standard of proof in resolving the credibility dispute between Mr Goldfinch and the appellant. This was underlined by his Honour's direction that the appellant did not have to prove anything and did not have to disprove anything. The jury could not have been under any misapprehension about the correct way to decide this issue.

9 I would dismiss the appeal against the first count.

10 The sole ground of appeal in regard to the second count was as follows:

"The learned trial Judge erred in his ruling on count 2 when his Honour directed the jury that the defence of honest and reasonable but mistaken belief was not available to the appellant and as a consequence there has been a miscarriage of justice."

Section 80(1) of the Bankruptcy Act provides:

"If during a bankruptcy a change occurs in the bankrupt's name, or in any other particulars that the bankrupt was required to set out in a bankrupt's statement of affairs under sub paragraph 6A(2)(b)(i), the bankrupt must immediately tell the trustee in writing of the change."

11 At the trial the appellant admitted that, "between 5 October 1993 and 1 May 1993 (sic)", he was obliged by s 80(1) to tell his trustee in writing immediately of a change in his current residential address, that being a particular required to be set out in the bankruptcy statement of affairs completed by him. The appellant did not contend that he had advised his trustee of any such change. Rather, he contended that he had not changed his residential address. At the trial this was the sole issue in regard to the second count.

12 There was compelling evidence at the trial that the appellant had in fact changed his residential address. It was common cause that for a period from July 1994 the appellant resided at 14 Swan Street, Guildford. This property was owned by the appellant's spouse, Ms Vicki De'Ath. At some time in 1995 or 1996 the appellant, acting on behalf of Ms De'Ath, instructed real estate agents to sell 14 Swan Street. He also negotiated on behalf of Ms De'Ath with real estate agents to purchase a residential property at 158 Park Street, Henley Brook. On 29 March 1996 Ms De'Ath's offer to purchase 158 Park Street was accepted and possession of that property was afforded to her and the appellant and their two children. In cross-examination it was put the appellant that "the intention was for you, wife and children to reside at that address [158 Park Street]". He agreed.

13 On 29 March Ms De'Ath and the two children moved into the Park Street home. The appellant agreed that "everything was moved to the new address". This included all furnishings, clothes (including the clothes of the appellant) and the family motor vehicle, as well as all the appellant's personal effects. The Swan Street property was locked up and the water turned off.

14 According to the appellant he first began to reside in the Park Street property on 1 May 1996, the day of his arrest. He said that on that day a bank seized possession of the Swan Street property and he was not able to return there. He denied that he had been residing in Park Street before then. He said "as I was spending a significant portion of time at 14 Swan Street I believed I was still effectively at 14 Swan Street". According to the appellant, he did some renovating work at the Swan Street property prior to 1 May 1996 to prepare for the pending mortgagee sale thereof. He testified that he slept in a sleeping bag while working there. He said that he spent on average approximately two nights a week at Park Street while carrying out the renovations, but he took all his meals at the Park Street property.

15 The Crown led other evidence to support its case that the appellant had indeed changed his residential address. A federal police officer testified that on 1 May 1996 he searched the Park Street house. He said:

"There was a double bed [in the main bedroom]. There were bedspreads. It was fully furnished. In particular I recall going into what I thought was the walk-in wardrobes. There were clothes on the rack, boxes on a higher shelf, shoes on the ground. The living area was quite neat and meticulous. There was a sofa, table, chairs, photographs. The spare bedroom 1 was like a business room, had documents, boxes. The kitchen had all the utensils, what one would expect to see in a kitchen - fridge. The kids' playroom had toys on the ground."

The police officer found men's clothes in the house. The back shed was full of equipment.

16 Ms Belinda Lyne, a property manager, inspected the Swan Street property on 1 May 1996. A locksmith was required to gain entry. There were no floorboards on the verandah. The tiles from the kitchen and the bathroom and wood panelling from other rooms had been removed. Parts of the brickwork of the fireplace had been knocked out. There were no clothes or furnishings in the premises. The electricity had been switched off and the electric wiring was loose in areas. Some of the light fittings had been removed. When asked whether there was any sign of occupation she replied in the negative. She said, "It was basically very - it was really empty. There wasn't any cupboards or anything".

17 Mr Devenish-Krauth, a real estate agent, testified that in March 1996 the appellant indicated to him that the Park Street property was being purchased so that the appellant and Ms De'Ath "could have a change of lifestyle [as they] were unhappy where they were living". According to this witness he was told by the appellant that the entire family would reside at Park Street. Mr Devenish-Krauth was not cross-examined in regard to this evidence. In re-examination he stated that renovations did not "continue" at the Swan Street property. He knew this because he tried to show the property on a couple of occasions but "there didn't seem to be any further work that was occurring". He said that from April 1996 no renovations occurred.

18 In charging the jury the learned trial Judge put the issue to the jury as being simply whether the appellant had "changed his address". Although his Honour noted that mention had been made that the appellant had a defence of honest and reasonable but mistaken belief, he informed the jury that, as a matter of law, that defence was not available to the appellant. He said that on the second count the sole question was whether the appellant had in fact changed his address. Counsel for the appellant submitted that the learned Judge had erred in so directing the jury.

19 It was not contended on the appellant's behalf that he had made a mistake as to any of the primary facts. The only relevant mistake that the appellant made, it is said, was to draw the inference - wrongly - that he remained resident at 14 Swan Street. The appellant's argument was that, despite being under no misapprehension as regards the primary facts, he was not guilty of contravening s 80(1) as he had made an honest and reasonable mistake when he inferred, from those facts, that until 1 May 1996 he was resident at 14 Swan Street. Such a mistake (involving the place of a person's residence) would be as to a question of fact (Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93; Commissioners of Inland Revenue v Lysaght (1928) AC 234 at 247).

20 During the course of argument on appeal, the Court raised with counsel the question whether this defence arose under s 24 of the Criminal Code or under common law. Counsel were not able to comment on the issue. Suffice it to say, by s 4 of the Crimes Act 1914, "the principles of the common law with respect to criminal liability apply". In any event, the issues, whether s 24 or the common law applies, are substantially the same.

21 Neither the ground of appeal relating to count 2 nor the argument advanced on the appellant's behalf in support thereof suggested that mens rea, in the sense of guilty knowledge, was an ingredient of the offence constituted by s 80(1) of the Bankruptcy Act. It was submitted only that the appellant's honest and reasonable but mistaken belief that he resided at the Swan Street property until 1 May 1996 constituted a defence to the charge brought under count 2. In my view, counsel for the appellant was correct in his approach to mens rea. I will briefly mention the relevant factors which lead me to such a conclusion.

22 The purpose of s 80(1) is to ensure that the bankrupt's trustee at all times is kept advised of the necessary particulars (including the bankrupt's residential address) so that he or she can readily communicate with the bankrupt when administering the estate. The obligation under s 80(1) is to "tell the trustee in writing of the change [of address]". As Doyle CJ said in R v Scott (at 354 -355) in regard to s 269(1) of the Act, "the gist of the offence is the failure to tell". Similarly, it seems to me, the obligation under s 80(1) is to tell the trustee, come what may. In this context the maximum penalty of 6 months' imprisonment for a contravention of the section is relevant. In my view the inference to be drawn from this is that Parliament has taken the view that punishment of this order is necessary to emphasise the importance of the undischarged bankrupt in informing his or her trustee of the relevant particulars (cf R v Scott at 356).

23 It does not follow from the conclusion that guilty knowledge is not an element of the offence, that the offence is an absolute one. The following remarks of Gibbs CJ in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 are relevant:

"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of fact, which, if true, would have made his act innocent."

In R v Scott Doyle CJ noted in this regard (at 357):

"[I]t is only rarely that one would treat a statute as excluding the availability of this defence [that is, the defence of honest and reasonable mistake]."

24 It seems to me, however, that the scope for the application of this defence to a charge under s 80(1) is limited. I accept that the defence could be raised in regard to the element of telling the trustee in writing of a change of address. So, it would be available, if, say, the bankrupt handed a written note reflecting a change of address to a courier with instructions to deliver it to the trustee and the courier, unbeknown to the bankrupt, failed to deliver the note. In those circumstances, the bankrupt would be able to raise as a defence his honest and reasonable belief that he had in fact told the trustee, in writing, of his change of address.

25 But is the defence available if the bankrupt has in fact changed his residential address, but mistakenly believes that he has not? In other words, can the defence operate in regard to the external element of the offence involving a change in the bankrupt's residential address? For the reasons that follow I have come to the conclusion that this question should be answered in the negative.

26 In He Kaw Teh v R Brennan J observed (at 575) that while the absence of an exculpatory belief can apply where knowledge is excluded as an element of an offence, "knowledge and mistaken belief cannot co-exist in relation to the same fact". His Honour stated:

"It is therefore necessary to determine which state of mind applies to a particular external element of a statutorily defined offence once it appears that some mental element is applicable. The absence of an honest and reasonable but mistaken belief can be the mental state applicable to existing circumstances but only if the prima facie requirement of knowledge is excluded."

27 In Akbarali v Brent London Borough Council [1983] 2 AC 309 Lord Scarman (at 344) noted that there were two respects in which a mental element is "important" in determining ordinary residence. Firstly, the residence must be voluntarily adopted. Secondly, there must be a "degree of settled purpose". As his Lordship said:

"The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose ... Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

28 Thus, in the present case, the evidence of the appellant that he believed that he was resident at the Swan Street property at the relevant time was relevant to the question whether he was in fact resident there, and it was a matter for the jury to take into account in determining whether he had in fact changed his address, as alleged. The Crown was required to prove that at the relevant time the appellant was living in the Park Street property with the settled purpose that it be his residence. That being so, it cannot be a defence to the charge in question that the appellant was under the mistaken belief that his residence was at 14 Swan Street. The appellant's state of mind that the Park Street property was his residence cannot co-exist with a mistaken belief that his residence was 14 Swan Street.

29 In the circumstances I would dismiss the appeal.

30 WALLWORK J: The facts concerning the charges which were laid in this case are set out in the reasons for judgment of Ipp J and I will not repeat them except as is necessary.

31 I agree, for the reasons expressed by Ipp J, that the appeal against the conviction on the first count should be dismissed.

32 With respect to the appeal concerning the conviction on the second count, Ipp J poses the question:

"But is the defence [honest and reasonable but mistaken belief] available if the bankrupt has in fact changed his residential address, but mistakenly believes that he has not?" (My words in brackets)

33 In He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 two charges were laid pursuant to s 233B of the Customs Act. They were allegations of statutory offences as in this case.

"However the provision (s 233B) has to be read in the light of the general principles of the common law which govern criminal responsibility. The relevant principle is stated in Sherras v De Rutzen [1895] 1 QB 918 at 921 as follows:

'There is a presumption that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered.'

There has in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes. Proudman v Dayman (1941) 67 CLR 526 at 540; Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248 at 261. However the principle stated in Sherras v De Rutzen has more recently been reaffirmed in the Judicial Committee and the House of Lords (Lim Chin Aik v The Queen [1963] AC 160 at 173; Reg v Warner [1969] 2 AC 256 at 272 and Gammon Limited v Attorney General (Hong Kong) [1985] AC 1 at 12-13 and in this Court: Cameron v Holt (1980) 642 CLR 342 at 346, 348). The rule is not always easy to apply. Its application presents two difficulties - first in deciding whether the Parliament intended that the forbidden conduct should be punishable even in the absence of some blameworthy state of mind and secondly, if it is held that mens rea is an element of the offence, in deciding exactly what mental state is imported by that vague expression." (My emphasis)

35 Gibbs CJ said that one must have regard to the words of the statute creating the offence. The second matter to be considered is the subject matter with which the statute deals. Having referred to some of the considerations relevant to the question, his Honour said at 530:

"These indications do not all point in the same direction, but at least they suggest the conclusion that the Parliament did not intend that the offence defined in paragraph (b) should be an absolute one. The expression 'mens rea' is ambiguous and imprecise. The passage which I have cited from Sherras v De Rutzen (supra) suggests that it means evil intention or a knowledge of the wrongfulness of the act." (My emphasis)

36 His Honour referred to the case of Bank of New South Wales v Piper [1897] AC 383 at 389, 390 where their Lordships said:

"...but the questions whether a particular intent is made an element of the statutory crime, and when that is not the case, whether there was an absence of mens rea in the accused, are questions entirely different, and depend upon different considerations."

"These cases establish that if it is held that guilty knowledge is not an ingredient of an offence, it does not follow that the offence is an absolute one."

"However, it is more likely that the Parliament will have intended that full mens rea, in the sense of guilty intention or guilty knowledge, will be an element if an offence is one of a serious kind."

39 In the present case, the offence alleged, being punishable with six months imprisonment, was "one of a serious kind". I realise that the penalty is not as serious as for a drug smuggling offence.

"The gravity of the offence suggests that guilty knowledge was intended to be an element of it."

"With all respect I do not consider that the fact that the legislation dealt with narcotic goods supports the view that the Parliament intended to make the offence an absolute one or to make proof of guilty knowledge unnecessary; the gravity of the offence indicates to the contrary."

42 It has been suggested that the reasons of Doyle CJ in R v Scott (1996) 137 ALR 347 are against the appellant's argument in this case. However, in my view the reasons of Doyle CJ in R v Scott were directed at propositions which had been advanced in that case such as that a person who is bankrupt does not have to tell another person what that other person already knows. His Honour said at 353:

"It is reasonable not to rest the obligation upon the bankrupt's belief about the need to convey the information. In my opinion to require a bankrupt to tell a person what that person already knows - that the informant is an undischarged bankrupt - is not to impose an empty ritual. It is to ensure, at the risk of needless repetition on occasions, that the credit provider is told or reminded of a most material fact."

Further and with reference to honest and reasonable mistake, at 357 his Honour said:

"In my opinion it is only rarely that one would treat a statute as excluding the availability of this defence."

43 Applying the spirit of Gibbs CJ's reasoning in He Kaw Teh to this case and to the question posed by Ipp J, in my opinion the defence of honest and reasonable but mistaken belief should be available if the prosecution did not negate the defence that an accused person honestly and reasonably believed that he had not changed his residential address.

44 I would allow the appeal against the conviction on the second count.

45 MURRAY J: I have had the advantage of reading in draft the reasons published by Ipp J. I agree with his Honour's conclusion that the appeal should be dismissed.

46 I have nothing to add to his Honour's reasons with respect to count 1 on the indictment. Ground 1 cannot be made out in my opinion. The directions given by the learned trial Judge properly dealt with the resolution of the conflict of evidence between that given by Mr Goldfinch and the evidence of the appellant. In my opinion, his Honour did not fall into the trap dealt with by the High Court in Liberato v R [1985] HCA 66; (1985) 159 CLR 507.

47 As to count 2 on the indictment and ground 2, it will be noticed that the learned trial Judge expressly withdrew from the jury's consideration the need for the Crown to negate beyond a reasonable doubt the availability of mistake of fact. If the doctrine was available, it was the common law formulation with which the court would be concerned: Crimes Act 1914 (Cth) s 4. The "defence" is available if there is an honest and reasonable belief in the existence of facts or circumstances which, if true, would make the act charged innocent. In truth, although that is often spoken of as a "defence", it is fundamentally a matter of criminal liability or criminal responsibility (as the Criminal Code would put it). Hence, where the doctrine is available in relation to a particular offence and it is raised by the evidence, it is to be negated by the Crown according to the ordinary standard of proof beyond a reasonable doubt. Its application negates the basic mens rea or general intent, which is the mental state of the offender required to be established by proof of knowledge or the like, if the accused person is to be convicted.

48 The availability of the doctrine is a matter of statutory interpretation in a case where the offence is defined by statute. The question will be whether the offence is so defined as to provide expressly or by implication for the proof of a guilty mind on the part of an offender, which will be the conclusion ordinarily reached, or whether it is truly an offence of strict liability in respect of which the mental state of the alleged offender is irrelevant: Bahri Kural v R [1987] HCA 16; (1987) 162 CLR 502, 504-5; He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523. As Brennan J said in that case at 572-3, to state the law in that way is to demonstrate that the content of the doctrine at common law and under the Criminal Codes is effectively the same.

49 The indictment in this case charged the appellant that on a date unknown between 29 March 1996 and 1 May 1996, being an undischarged bankrupt, he failed to tell the trustee of his estate in bankruptcy immediately in writing of "a change of address" a change in a particular in his statement of affairs.

50 The Bankruptcy Act 1966 (Cth) s 80(1) provides:

"If during a bankruptcy a change occurs in the bankrupt's name, or in any other particulars that the bankrupt was required to set out in the bankrupt's statement of affairs under subparagraph 6A(2)(b)(i), the bankrupt must immediately tell the trustee in writing of the change."

There is now no s 6A(2)(b), that paragraph having been repealed with effect from 16 December 1996. However, during the period relevant to the indictment, s 6A(2)(b)(i) required a statement of affairs to set out particulars of:

"the bankrupt's or debtor's name, the address of the bankrupt's or debtor's principal place of residence, another address (if any) at which documents can be sent by post to the bankrupt or debtor and a telephone number (if any) at which the bankrupt or debtor can be contacted during ordinary working or business hours;"

Reading that provision together with s 80(1), the relevant obligation was to immediately tell the trustee in bankruptcy of a change which occurred in the address of the bankrupt's principal place of residence.

51 I would not, with respect, agree that there is necessarily an element of intention in the establishment of what was the bankrupt's principal place of residence. No doubt to adopt a principal place of residence may in fact, if the evidence is to that effect, involve not only physical residence at a place, but also a mental element that the person so residing does so for some purpose which allows the place to be described as a place of residence rather than a place visited merely transiently. Even a short stay may qualify as residence if for some settled purpose: Akbarali v Brent London Borough Council [1983] 2 AC 309. But the word "residence" imports a stay of some degree of permanence: Ashe v Sorrento Hotel Pty Ltd [1951] VicLawRp 28; [1951] VLR 214, 221, 225. On the other hand a place may not lose its character as a place of residence because the person concerned is absent for quite long periods: Re Kiwat [1993] 2 Qd R 531. Much will depend on the particular statutory context and the evidence, but this case, in my view, raised no such potentially vexed question of fact.

52 The evidence was that the appellant's family moved into a property in Park Street, Henley Brook on 29 March 1996. It was intended that that would be the family's principal place of residence. The appellant, however, said that he remained in residence at the previous address of Swan Street, Guildford until 1 May 1996 when he was, in effect, evicted from that property by a bank exercising the powers of a mortgagee. Ipp J has set out the relevant evidence and I need not repeat the discussion. It is sufficient to note that the evidence of the appellant was that he remained in residence at Swan Street because he was doing some work by way of renovation, spending a significant period of each week there and sleeping there for all but two nights of each week. In those circumstances, he said, he believed he was "still effectively at 14 Swan Street".

53 By that evidence two questions were raised. Was the appellant on the whole of the evidence still residing at Swan Street or had there been a change in his principal place of residence? And if there had been, and only in that event, was the question of his belief that there had been no change in his principal place of residence relevant to the determination of his criminal liability? Was it open to him, to negate his criminal liability in respect of the charge under s 80, to have the jury consider whether his failure to give his trustee immediate written notification of the change in his principal place of residence, if the jury were satisfied that it had in fact occurred, was rendered innocent by his honest and reasonable mistake as to the existence of the fact that Swan Street remained his principal place of residence?

54 As has been seen, the first count in the indictment charged an offence under the Act, s 269(1). That subsection provides offences concerned with a variety of circumstances in which an obligation is placed upon an undischarged bankrupt entering into various transactions to disclose that status. In R v Scott (1996) 137 ALR 347 the Court of Criminal Appeal of SA dealt with the question of the availability of the defence of mistake of fact to charges under s 269. The Court did so upon the basis that a clear indication that upon its proper construction the section concerned excluded the availability of the doctrine, was required. It was held that only rarely would the court interpret a statute as excluding the availability of the defence. It was held that s 269 did not exclude altogether the scope for the operation of the defence, but its availability was necessarily limited.

55 The court had regard to the apparent purpose of s 269. At 352-3 Doyle CJ said:

"Section 269 is intended to protect persons dealing with an undischarged bankrupt. That will best be achieved if the bankrupt must disclose that status on the occasion of each relevant dealing. Otherwise, the person who forgets that a person is an undischarged bankrupt, or assumes from silence that the bankruptcy has terminated, is at risk. It is sensible to require the bankrupt to leave nothing to chance. It is reasonable not to rest the obligation upon the bankrupt's belief about the need to convey the information. In my opinion to require a bankrupt to tell a person what that person already knows - that the informant is an undischarged bankrupt - is not to impose an empty ritual. It is to ensure, at the risk of needless repetition on occasions, that the credit provider is told or reminded of a most material fact."

56 In my opinion, such an observation may be aptly made about s 80, which provides an offence of a similar kind. The section is obviously designed to ensure that a trustee in bankruptcy does not lose contact with the bankrupt, for all the purposes of the law in respect of the proper administration of the bankruptcy, for the protection of the interests of creditors and persons who deal with the bankrupt. For s 80, as for s 269, "the gist of the offence is the failure to tell": per Doyle CJ in R v Scott at 354. To ensure the relevant information is disclosed, the punishable offence is constituted by the omission to do so when the occasion for disclosure has in fact arisen. That such an offence is part of a process by which the statute seeks to protect the interests of third parties, seems to me to point to the conclusion that it is not open to require the Crown to negate a mistake on reasonable grounds that the occasion to give the information had not arisen, any more than it would be necessary to negate a reasonably grounded mistake that the person to be informed already knew the information which the section required to be given.

57 In R v Scott at 357 Doyle CJ expressed a similar conclusion about s 269 by saying:

"Forgetfulness, or a belief that there is no reason to do what the Act requires, cannot avail an accused under this defence. But in some situations an accused might honestly and reasonably believe that he or she has informed or disclosed as required."

58 Translating the reasoning about s 269 in R v Scott into the context of s 80 and the charge laid in this case leads me to the conclusion that, in the case of s 80 also, there is a strictly limited capacity to invoke the doctrine of honest and reasonable mistake of fact. Properly interpreted, it seems to me, the section excludes the availability of the doctrine if, as in this case, what is put is an allegedly honest and reasonable belief that the occasion to make the disclosure had not arisen because the accused person believed there had been no change in the address of his or her principal place of residence. If, in fact, the place of residence has changed having regard to all the various matters of fact and circumstances which may bear upon that change (the primary facts about which, in this case, as Ipp J has observed, no mistake was asserted), then the obligation to make the disclosure arises and the failure to give the necessary immediate notification will constitute an offence. On the other hand, criminal liability for such a failure would, in my opinion, be negated if the accused honestly and reasonably, although mistakenly, believed that the required immediate notification in proper form had indeed been given to the trustee in bankruptcy. Only to that extent, in my opinion, does proper construction of the section admit of the application of the common law doctrine of mistake.

59 It follows from the way the appellant put his case at trial that the direction of the learned trial Judge that the defence was not available was, in my respectful opinion, correct. I therefore agree that the appeal should be dismissed.