9 September 2008
PRESIDENTIAL SECURITY SERVICES OF AUSTRALIA PTY LIMITED v CLINTON JOSEPH BRILLEY
Judgment
1 ALLSOP P: I have had the considerable advantage of reading in draft the reasons of Ipp JA. Subject to what follows concerning the possible criminal responsibility of the appellant, I agree with his Honour's reasons and with the orders proposed by him.
2 Mr Bingle was the managing director and sole employee of the appellant company, to which, for consistency with the reasons of Ipp JA, I will refer as the defendant. No reference was made by the primary judge to the ownership of the shares in the defendant or to its constitution. It might be assumed that the defendant was a company that could be described as Mr Bingle's "creature", but to a degree this would be speculation. No one at the trial seems to have directed any attention to the nature of the defendant and Mr Bingle's relationship to it, beyond identifying the fact that he was its managing director and sole director and making the assertion (which was admitted) of "vicarious liability".
3 It may be that, for identified purposes, Mr Bingle can be identified as the "directing mind and will" of the defendant: see Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713 and Tesco Supermarkets Ltd v Nattrass [1972] AC 153; but that proposition may require the purposes of the defendant to be identified. The purposes of a company will, in the first instance, be found in its constitution. By the Corporations Act 2001 (Cth), s124, a company has the legal capacity and powers of an individual; though some restriction on the exercise of that capacity can be placed by the company's constitution: Austin RP and Ramsay IM Ford's Principles of Corporations Law (LexisNexis Butterworths, 13th ed) [12.130]ff.
4 The liability of a company for any particular breach of the criminal law will depend, in significant part, upon the nature, elements and terms of the offence. To the extent that the offence is created by statute, the process of "attribution" of criminal responsibility will principally be, or be at least based on, statutory interpretation of the provision creating the offence: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. In such cases, questions such as the need for a guilty mind or mens rea, the nature of that mental state and the person, agent or organ of the company who must have such state of mind will turn on understanding the words of the statutory provision and the will of Parliament.
5 Here, it may be that there was little complexity about the nature of the offence, or offences, but, as noted by Ipp JA, there was no pleading of any offence and no pleading at all of the Civil Liability Act 2002 (NSW), s54(2). Even if the offence or offences was or were easily identified, the primary judge concluded that Mr Bingle (not the defendant) was guilty of it or them. The inadequacies of approaching the matter thus have been dealt with by Ipp JA. The primary judge's reasons reflect an absence of recognition of the need to attribute the conduct of Mr Bingle to the defendant in terms of criminal responsibility. This was not a matter of vicarious liability; rather, it was assessing from the nature of the offence, whether the conduct of Mr Bingle could be attributed to the defendant. This may or may not be straightforward. As managing director and sole employee, Mr Bingle may be seen as the company and its mind and will. But for what purposes? If, in committing the acts which are impugned as unlawful, he was seeking to perform or execute the defendant's responsibilities as security guard, there may be no difficulty attributing his acts and his mental state to the defendant, even though they are unlawful: Meridian Global Funds Management and Director of Public Prosecutions v Gomez [1993] AC 442. The proposition that a corporation cannot be criminally liable because criminal acts necessarily go outside the objects (presumed lawful) of a corporation has not been accepted by the courts: Linehan v The Australian Public Service Association (1983) 67 FLR 412 at 435-436 (per Fitzgerald J); see generally Davies PL Gower and Davies' Principles of Modern Company Law (7th ed) pp171ff. Such a proposition can be seen to rest on what has been said to amount to a fallacy that civil capacity and criminal responsibility are governed by the same considerations: Welsh RS "The Criminal Liability of Corporations" (1946) 62 LQR 345 at 347 citing Professor Winfield in The Law of Tort (3rd ed) pp105-106. Such a proposition is also difficult to sustain in the face of the Corporations Act, ss124 and 125.
6 There may, however, be limits to attributed responsibility. One such limit may be the nature of the offence as one of an intentional act of violence, or deliberate injury. I will return to this question. Assuming the defendant company can be criminally responsible for unlawful intentional infliction of physical harm, if Mr Bingle was not seeking to perform or execute the defendant's responsibilities to the Club, but had engaged in a violent attack on the plaintiff for reasons other than driving him off as an intruder, it may be that, though the managing director and sole employee of the defendant company, he was no longer acting for it. An easy (and I hasten to add entirely hypothetical) example would be if Mr Bingle proceeded to rob a late night convenience store on his way home from work; or, perhaps closer to these events (though equally hypothetical) if he had caught Mr Brilley in the car and robbed him. The point is that at some point the actions of Mr Bingle may conceivably have ceased to be those of the defendant company. (Compare the notion of scope of authority referred to by Brennan J in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477 at 514-515.) If, as the primary judge seems to have thought (and leaving aside for a moment the inadequate reasons), Mr Bingle was not engaged in seeking to defend himself or the property of the Club which the defendant had been retained to guard, and if he was motivated by a "callous intention to cause injury", a question for investigation would arise whether he was the embodiment of, or to be identified as, or his actions and state of mind attributed to, the defendant company in respect of any such wrongdoing.
7 There is a body of authority supporting the proposition that for a company to be attributed with the intentions of a person for the purposes of criminal responsibility that person must be acting in furtherance of the company's interests, or at least not against them: Director of Public Prosecutions v Gomez [1993] AC at 464-5, 491-2 and 496-97; Attorney-General's Reference (No 2 of 1982) [1984] 1 QB 624; R v Philippou (1989) 89 Cr App R 290; Attorney-General's Reference (No 1 of 1985) (1985) 41 SASR 147; Durovic v R (1994) 4 Tas R 113; Rowe v Transport Workers Union of Australia (1998) 90 FCR 95; R v Rozeik [1996] 3 All ER 281; Canadian Dredge & Dock Co v R [1985] 1 SCR 662. There is authority to the contrary: R v Roffell [1985] VR 511.
8 Depending upon the issues at any new trial, based on properly formulated pleadings, these questions may need to be investigated and adequately addressed.
9 The above assumes that the defendant company could be found guilty of a crime of intentionally inflicted violence. For there to be utility in any rehearing in the District Court, this question needs to be addressed by reference, at least, to the crimes now identified by the respondent in its written submissions. These crimes were: the Crimes Act 1900 (NSW), s61 (common assault), s33A (discharging a firearm with intent to cause grievous bodily harm), s93G (causing danger with a firearm) and s93GA(1) (firing at a dwelling house or building with reckless disregard for the safety of any person).
10 There is now authority that a company can be guilty of manslaughter: R v HM Coroner for East Kent; Ex parte Spooner (1989) 88 Cr App R 10; P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72; Attorney-General's Reference (No 2 of 1999) [2000] QB 796; Transco plc v Her Majesty's Advocate [2005] BCC 296; R v Murray Wright Ltd [1970] NZLR 476; and see generally the cases discussed in Clough J and Mulhern C The Prosecution of Corporations (Oxford University Press 2002) pp169ff. It does not naturally follow, however, from a conclusion that a company may be guilty of homicide based on gross negligence or some cognate culpable behaviour, that it can be guilty of a crime of intentional infliction of violence. It seems to be accepted that some offences by their nature can only be committed by a natural person. Before any consideration of the common law, it is necessary to have regard to relevant statutory provisions. The posited crimes are State crimes. Thus, relevant State legislation must be examined. Ipp JA has referred to the Crimes (Sentencing Procedure) Act 1999 (NSW), s16 which converts punishment by terms of imprisonment into fines. This provision removes the foundation for the argument that companies cannot be responsible for crimes in respect of which the only punishment is physical punishment of a human, whether by incarceration or otherwise. The Criminal Procedure Act 1986 (NSW), s10(1) is also relevant. It provides as follows:
Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as individuals.
On one reading, the wording of the Criminal Procedure Act , s10(1) may be seen to be insufficiently direct to mean that, subject to any contrary intention, any provision the terms of which create an offence applies to bodies corporate as well as individuals. In my view, however, when one looks at the history of the provision, it can be concluded that this meaning is encompassed within the section.