Nigel Donald Gow v Clive Davies [1992] TASSC 8;

Nigel Donald Gow v Clive Davies [1992] TASSC 8; - TASSC 1992 case summary — Zoe

[24]

15. Section 4(3) of the Criminal Code Act was considered by Crisp J in Woodruff v. Nolan (1934) 29 Tas LR 127. In that case the applicant had been convicted by a police magistrate of stealing property to the value of (pounds)9.0.0 contrary to s.234 of the Criminal Code. The applicant had claimed that he was entitled to be tried by a jury, which claim was rejected by the police magistrate, who then proceeded to hear and determine the complaint summarily. The matter which fell for determination was whether the mode of trial was determined by s.3 of the Petty Offences Act 1867 (in which event the applicant had no option but to be tried summarily) or by s.5 of the Criminal Code Act (in which event the applicant was entitled to be tried by jury if he so demanded). Some of the provisions of the Petty Offences Act now appear strange. Section 3 operated so that as to certain offences the person charged was not entitled to demand a trial by jury if he had been convicted of an offence of the type therein specified during the preceding period of two years, although he was entitled to so demand if he had not previously been so convicted during that period of two years. By determining the mode of trial by reference to a defendant's previous record, it was implicit from s.3 that a police magistrate was to be informed of relevant prior convictions prior to embarking upon a hearing of the complaint. The Petty Offences Act was not expressly repealed by the Criminal Code Act, although it was later repealed by the Police Offences Act 1935. In considering the applicant's submissions, Crisp J posed the relevant question, at p 129, as being "Has the Code indirectly repealed (the Petty Offences) Act?". With the greatest of respect, I do not consider that to have been a question which required determination. His Honour proceeded upon the basis that if that question was answered in the affirmative the applicant could invoke s.5 of the Criminal Code Act. Yet that could not have been so because in that event the Petty Offences Act would not have answered to the description of being "any unrepealed statute" in the terms of s.5.

[71]

"Now the first thing one notices here is that the Criminal

Code does not purport to deal with every branch of the law

creating offences. By Sec. 2 it provides that, after the

passing of the Act, the provisions contained in the first

schedule should be the law of the State 'with respect to the

several matters therein dealt with.' Then, Section 3 refers

to the second schedule, which contains a list of Acts

repealed, and, although that schedule embraces a large

number of penal statutes theretofore existing, it yet does

not repeal, in terms, 'The Petty Offences Act.'

The question is: Has the code indirectly repealed this Act?

In Seward v. 'Vera Cruz,' 10 AC 59, Lord Selbourne said:-

'Now if anything be certain it is this, that where there are

general words in a later Act capable of reasonable and

sensible application without extending them to subjects

specially dealt with by earlier legislation, you are not to

hold that earlier and special legislation indirectly

repealed or altered merely by force of such general words,

without any indication of a particular intention to do so.'

It seems to me that this argument might be put with even

greater force in such a case as this now under appeal, where

the Code, though killing many penal statutes, has allowed

this particular statute to survive.

If the appellant's contention is correct, not only has

Section 5 of the Code indirectly repealed 'The Petty

Offences Act,' but it has attenuated the jurisdiction of

Justices of the Peace to an alarming degree, and for every

petty statutory offence involving at most a short term of

imprisonment a jury might be demanded.

Surely if Parliament had intended so great a change, it

would have used language about which there could be no

doubt.

When one considers the hundred and one offences under, e.g.,

'The Police Act,' or 'The Licensing Act,' one finds it hard

to believe that such a thing was ever in the minds of the

legislators.

We have, however, to construe the Code; if its language is

plain and clear, there is no more to be said, despite the

consequences. Is it so plain and clear?

By Sec. 4 (3) 'Nothing herein contained should be construed

to affect the construction of any statute, or of any

provision thereof, referring or relating to summary

proceedings.'

So, in the forefront of the Code there is, in effect, a

declaration that summary proceedings taken according to

statute are not to be affected by the Code, for one cannot

deal with a statutory offence without first construing the

statute. Its construction may be simple and beyond doubt,

but you must construe it before acting on it. The

sub-section, I think, says substantially this: 'Hands off

summary proceedings under statute.'

When we read the very next Section (S. 5) how can we say

that, notwithstanding Section 4, it repeals a statute the

construction of which the Code itself declares it does not

touch?

What I believe Sec. 5 of the Code to mean is that it does

not abstract from the existing jurisdiction of Justices:

rather, it aims at minor offences not otherwise provided

for.

In short, here is 'The Petty Offences Act' dealing with nine

specific offences only. Then the Code is passed and it

leaves this Act alive, though repealing many others. And

the language of Sec. 5 is capable of an interpretation which

does not touch the former Act."

[103]

25. It was the intention of its draftsman that the parameters of the acts and omissions made criminal by the detailed sections crafted by him in Parts II to VIII of the Code should be determined by the fusion of the general principles of criminal responsibility crafted by him in s.13 with the external elements set out in those later sections. In this way a comprehensive system of criminal jurisprudence was sought to be established, each section being interdependent. Such a plan was inappropriate for the myriad pieces of legislation creating summary offences. For the situations covered by the Code the draftsman saw as an (almost) indispensable pre-requisite the need for a voluntary and intentional act or an intentional omission, but such a pre-requisite may be quite incongruous in many situations covered by summary proceedings provided for in existing or future statutes not drafted within the framework of the same comprehensive plan. The construction of offences such as being drunk and incapable (s.4, Police Offences Act 1935), being a person without sufficient lawful means of support (s.5, Police Offences Act), being the owner of a dog which causes bodily injury to any person (s.35, Dog Control Act 1987), or failing to vote (s.122A, Electoral Act 1907), to say nothing of hosts of omissions such as a failure to move parked cars after the lapse of some permissible time under Municipal By-Laws or Traffic Regulations, cannot be systematically or satisfactorily essayed by reference to a provision such as s.13 of the Code. But once the relevant statute is construed independently of the Act and Code and provided that upon that independent construction it does not appear that such defences excuses or justifications are intended to be modified or negated, it is not inappropriate that such general principles as are adverted to elsewhere in Ch. IV, or at the very least in those sections which specifically purport to deal with "offences", should be prayed in aid so as to admit of the defences, excuses or justifications, or the exception of them, being applied to the statute in question. Thus the principle that ignorance of the law is not an excuse for an offence (s.12) is applicable to a summary offence although it plays no part in the construction of the statute creating the offence. In the same way I am of the opinion that s.17(2) and (3) as interpreted in Snow v. The Queen and Palmer v. The Queen (supra) are applicable to any summary offence, while playing no part in its construction. Section 17, both in original form and as amended to its present form in 1946 (10 Geo.VI No.14), was indubitably based on the decision of the House of Lords in Director of Public Prosecutions v. Beard (1920) AC 479 (see Snow at p 280; Palmer at p 153) which bears out, at least in part, the claim of the Attorney-General in his 2nd reading speech as reported in the "Mercury" newspaper of 29 February 1924 that

[105]

26. It would be extraordinary if Parliament having determined an immutable test for intoxication as an excuse for criminal conduct triable on indictment should have intended to preserve the possibility that the ever evolving Common Law might develop a different test for offences triable summarily. The same comment can be made in respect of any other defence or justification, whether it be insanity, duress or whatever. The practical difficulties of administering different tests are manifest in the present case where a Code equivalent and a simple offence not having a Code equivalent were both triable summarily as separate counts on the one complaint. The adoption of different tests of responsibility is prone to bring the law into disrepute. With respect, s.36 of the Acts Interpretation Act from its inception did serve a purpose, notwithstanding the doubt as to its necessity expressed by Crawford J in Reg. v. Vallance (supra) at p 125. But for that section, acts constituting an offence punishable summarily, which also constituted a crime under the Code, would have been required, as would the statute creating the offence, to be construed without reference to the Code and especially to the prime characteristic contained in s.13 and underpinning criminal responsibility thereunder, namely the voluntary and intentional character of the act or omission in question. The purpose of s.36 was to apply that principle of criminal responsibility to offences having a Code equivalent and to import into their parent statute Code terms and expressions without the need for repetition. The fact that specific reference was made to "the principles of criminal responsibility applicable to such crime" applying in relation to such offences does not, in my view, expressly or by implication, deny to offences without a Code equivalent the application of those other principles of criminal responsibility specifically provided for in respect of "offences" (e.g. ignorance of the law, immature age, intoxication or compulsion).

[164]

"... the argument transfers the distinction between offences

of specific and of basic intent to a context in which it has

no place. The distinction is material where the defendant

relies on his own drunkenness as a ground for denying that

he had the degree of intention or recklessness required in

order to constitute the offence. Here, by contrast, the

appellant does not rely on her drunkenness to displace an

inference of intent or recklessness; ... Her defence is

founded on the state of belief called for by s 5(2). True,

the fact of the appellant's intoxication was relevant to the

defence under s 5(2) for it helped to explain what would

otherwise have been inexplicable, and hence lent colour to

her evidence about the state of her belief. This is not the

same as using drunkenness to rebut an inference of intention

or recklessness. Belief, like intention or recklessness, is

a state of mind; but they are not the same states of mind.

Can it nevertheless be said that, even if the context is

different, the principles established by Majewski ought to

be applied to this new situation? If the basis of the

decision in Majewski had been that drunkenness does not

prevent a person from having an intent or being reckless,

then there would be grounds for saying that it should

equally be left out of account when deciding on his state of

belief. But this is not in our view what Majewski decided.

The House of Lords did not conclude that intoxication was

irrelevant to the fact of the defendant's state of mind, but

rather that, whatever might have been his actual state of

mind, he should for reasons of policy be precluded from

relying on any alteration in that state brought about by

self-induced intoxication. The same considerations of

policy apply to the intent or recklessness which is the mens

rea of the offence created by s 1(1) and that offence is

accordingly regarded as one of basic intent (see R v

Stephenson). It is indeed essential that this should be so,

for drink so often plays a part in offences of criminal

damage, and to admit drunkenness as a potential means of

escaping liability would provide much too ready a means of

avoiding conviction. But these considerations do not apply

to a case where Parliament has specifically required the

court to consider the defendant's actual state of belief,

not the state of belief which ought to have existed. This

seems to us to show that the court is required by s 5(3) to

focus on the existence of the belief, not its intellectual

soundness; and a belief can be just as much honestly held if

it is induced by intoxication as if it stems from stupidity,

forgetfulness or inattention.

... Once the words (without lawful excuse) are put in

context, so it is maintained, it can be seen that the law

must treat drunkenness in the same way in relation to lawful

excuse (and hence belief) as it does to intention and

recklessness, for they are all part of the mens rea of the

offence. To fragment the mens rea, so as to treat one part

of it as affected by drunkenness in one way and the

remainder as affected in a different way, would make the law

impossibly complicated to enforce."

At a glance

Court

Decision date

Before

Source

Judgment (273 paragraphs)

Nigel Donald Gow v Clive Davies [1992] TASSC 8; (1992) 1 Tas R 1 (16 March 1992)

Parties

Legislation Cited (21)

Cases Cited (8)