Criminal Law and Procedure - Particular offences - Bribery and corruption - Commonwealth Officer - Sufficiency of evidence that the relevant person was a Commonwealth Officer. Crimes Act 1914 (C'th), s73(3).

Counsel for applicant: G R James QC and R C Webster

Solicitors for applicant: Australian Government Solicitor

GREEN CJ I have read the reasons for judgment prepared by Zeeman J and for the reasons he gives I agree that the application for leave to appeal is competent and that the application should be refused. I would only wish to add the following observations about the effect of the Constitution, s80.

2. In R. v Snow [1915] HCA 90; (1915) 20 CLR 315 it appears from the reasoning of Griffith CJ at 322 and 323 that although his conclusion that the High Court did not have the power to hear and determine an appeal from a verdict of acquittal returned by a jury was reinforced by his view of the effect of s80 it was not dependent upon it. Gavan Duffy J and Rich J were the only members of the court who give unambiguous support for the proposition that "the truth is that, in saying that the trial of offences shall be by jury, Parliament has said that the persons tried shall have all the benefits incidental to a trial by jury, and one of them is that a verdict of 'not guilty' shall be final and conclusive on the issue the jury are sworn to try, the issue of 'guilty or not guilty'" R v Snow (supra) at 365. But Gavan Duffy J and Rich J cite no authority in support of the proposition that there is a distinct common law principle that a necessary part of the concept of trial by jury is that there can be no appeal against a jury's verdict of not guilty and although not decisive it is of some significance that no such principle is referred to in the long discussions on trial by jury in Hale, The History of the Common Law of England 5th ed ch12; Blackstone, Commentaries 19th ed Vol III ch23 or Evatt, The Jury System in Australia 10 ALJ Supp 49 which was cited with approval in Kingswell v R [1985] HCA 72; (1985) 159 CLR 264 at 300. Further it should be noted that in Thompson v Mastertouch TV [1978] FCA 24; (1978) 19 ALR 547 Deane J at 555 indicated that he regarded the question of whether the High Court would ever interfere with a verdict of not guilty entered by a jury had been left "unresolved" in Snow's case. In my view Snow's case cannot be regarded as an authority which supports the respondent's submissions as to the effect of s80.

3. It is clear that the common law recognised "the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal" per Deane J in Thompson v Mastertouch TV (supra) at 552. But that right is not derived from notions of what are the incidents of trial by jury but from the general principle that prima facie the judgments and orders of superior courts are final and the more particular principle "there should not ordinarily be any appeal from an acquittal made by a court of competent jurisdiction" per Deane J in Thompson v Mastertouch TV (supra) at 550 citing Benson v Northern Ireland Road Transport Board (1942) AC 520. But as Deane J went on to observe at 551 that is a principle which applied "regardless of whether the judgment was pronounced after the verdict of a jury".

4. It is of course the case that a constitutional or statutory requirement that a particular matter may only be tried by jury or by some other specified tribunal necessarily entails the corollary that no other tribunal may try that issue. But that conclusion is not derived from any notion that the verdicts of juries are especially sacrosanct but simply follows as a matter of logic from the proposition that if the law says that a matter may only be tried by a particular tribunal then obviously no other tribunal may try that matter.

5. In summary my view is that although there are principles or presumptions which militate against construing statutes so that they confer a right of appeal against acquittals they do not derive their validity from any special rule relating to trial by jury but from other more general common law principles. Thus whilst no doubt the effect of s80 is to preclude the enactment of a statute which gives a court of appeal the power to substitute a verdict of guilty for an acquittal there is no reason to conclude that it precludes the enactment of a statute conferring a power to review acquittals and order a new trial.

WRIGHT J I have read the reasons for judgment to be published by my learned brother Zeeman J. I agree with those reasons and cannot usefully add anything. The application should be refused.

ZEEMAN J The Director of Public Prosecutions of the Commonwealth seeks leave to appeal against the acquittal of the respondent on 7 September 1992 of a breach of the Crimes Act 1914 (Cth), s71(3).

"The Director of Public Prosecutions of the Commonwealth of

Australia who prosecutes in this behalf for Her Majesty the

Queen, informs the Court and charges SUNG BO KIM with:-

1 STATEMENT OF CRIME

Offering to give property or a benefit to a Commonwealth

officer in order to influence or affect the Commonwealth

officer in the exercise of his duty or authority as a

Commonwealth officer, contrary to s 73(3) of the Crimes Act

1914 (Cth).

PARTICULARS

SUNG BO KIM on the 4th day of May 1991 at St Leonards in

Tasmania, in order to influence or affect Peter Nathan

Bennett, a Commonwealth officer, in the exercise of his duty

or authority as a Commonwealth officer, offered to give

Peter Nathan Bennett Ten Thousand Dollars and future

financial benefits on condition that Peter Nathan Bennett

allow him access to an overseas shipping container

containing bonded goods held at Seapak Transport which goods

required inspection and clearance by Australian Customs

Service and which had not been so inspected and cleared."

3. At the conclusion of the Crown case counsel for the respondent submitted to the learned trial judge that the respondent had no case to answer. The learned trial judge upheld that submission. In accordance with the direction which he then gave to the jury the jury brought in a verdict of not guilty, resulting in the respondent's acquittal.

4. The respondent has raised a preliminary objection to the competency of the application. The application for leave to appeal purported to be made pursuant to the Criminal Code ("the Code") s401(2) which relevantly provides as follows:

"(2) The Attorney-General may appeal to the Court -

...

(b) by leave of the Court or upon the certificate of the

judge of the court of trial that it is a fit case for

appeal, against an acquittal on a question of law;

..."

5. The rights conferred by s401(2) are conferred upon the Attorney-General of this State and there can be no suggestion that that subsection directly confers any right of appeal upon the Attorney-General of the Commonwealth or any officer acting in his stead. The questions raised by the submissions in support of the objection to the competency of the appeal may be shortly stated as being:

(a) whether by virtue of the provisions of the Judiciary Act

1903 (Cth), s68(1) and (2), the applicant has the authority

to make the application,

(b) if so, whether the court has jurisdiction to entertain

it,

(c) if so, whether in the event that the application is

granted, the court has jurisdiction to entertain the appeal.

6. At first blush it might be thought that the decision of this Court in R v Sender (1982) 47 ALR 191 directly stands in the way of the respondent's submission. However, counsel for the respondent expressly did not ask that the court grant leave for him to argue the correctness of that decision in accordance with the practice determined by the Court in Gardenal-Williams v R [1989] TASSC 29; (1989) Tas R 62. Rather, counsel submitted that for the following reasons the correctness or otherwise of the Court's decision in R v Sender (supra) did not require consideration:

1 R v Sender (supra) may be distinguished because there an

appeal came before this Court as the result of a certificate

granted by the trial judge whereas in the present case it is

this Court which is being asked to grant leave to appeal.

2 The argument that the applicant had no standing to invoke

the jurisdiction of the court, was not argued in R v Sender

(supra) as appears from the judgments in that case.

3 R v Sender (supra) ought to be taken as no longer being

good law in the light of the decision of the High Court in

Davern v Messel [1984] HCA 34; (1983-1984) 155 CLR 21.

4 The Judiciary Act 1903, s68(2) is to be read subject to

the provisions of the Constitution. The effect of s80

thereof is that there may not be lawfully conferred any

right to appeal against an acquittal by reason of the

verdict of a jury.

7. To state the bases upon which counsel submitted that R v Sender (supra) should be distinguished, essentially states the bases upon which the respondent sought to contend that the application was incompetent.

8. I should at once say that the argument that R v Sender (supra) ought to be distinguished upon the basis contended for is without merit. The arguments which were addressed in that case as to appeals are equally applicable to applications for leave to appeal. Counsel was not able to point to any relevant basis for distinction between the case where an appeal is brought consequent upon the certificate of a trial judge and where the application for leave to appeal is made to this Court. There appears to be no relevant basis for distinction.

9. Counsel for the respondent conceded that if the Attorney-General for the Commonwealth has standing to apply for leave to appeal and to appeal pursuant to the provisions of the Code, s402(1), then that right is capable of being exercised by the Director of Public Prosecutions of the Commonwealth. That concession is obviously correctly made (see Rhode v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119). The source of the Attorney-General's power to make the application must be found in statute if the power exists at all. Counsel for the applicant submitted that the source of the power is to be found in the Judiciary Act 1903 (Cth), s68(2). Relevantly, s68 provides as follows:

"68(1) The laws of a State or Territory respecting the

arrest and custody of offenders or persons charged with

offences, and the procedure for -

(a) their summary conviction; and

(b) their examination and commitment for trial on

indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of

any such trial or conviction or out of any proceedings

connected therewith,

and for holding accused persons to bail, shall, subject to

this section, apply and be applied so far as they are

applicable to persons who are charged with offences against

the laws of the Commonwealth in respect of whom jurisdiction

is conferred on the several courts of that State or

Territory by this Section.

(2) The several Courts of a State or Territory exercising

jurisdiction with respect to -

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment;

or

(c) the trial and conviction on indictment;

of offenders or persons charged with offences against the

laws of the State or Territory, and with respect to the

hearing and determination of appeals arising out of any such

trial or conviction or out of any proceedings connected

therewith, shall, subject to this section and to section 80

of the Constitution, have the like jurisdiction with respect

to persons who are charged with offences against the laws of

the Commonwealth."

10. Counsel for the respondent submitted that whilst the relevant provisions of s68 deal with the hearing and determination of appeals and applications for leave to appeal, those provisions do not deal with the institution of appeals or the making of applications for leave to appeal. He submitted that s68 only governs such applications and appeals as have been lawfully made or instituted. A consideration of the judgments in R v Sender (supra) makes it clear that no such argument was put in that case but rather that the standing of the Attorney-General of the Commonwealth to invoke the jurisdiction was accepted by the respondent in that case (per Green CJ at 196, per Cosgrove J at 201). In my view a statutory provision which confers upon a court a power to hear and determine appeals from particular decisions, without express provision as to who may invoke the jurisdiction of the court by way of appeal, ought to be construed as impliedly conferring a right of appeal at least upon the parties to the proceedings in which the judgment or order sought to be impugned was given or made. Applying that principle to the present case then plainly the Attorney-General for the Commonwealth has standing to make the present application. I note that it appears to have been assumed in Davern v Messel (supra) that the Federal Court of Australia Act 1976 (Cth) s24(1), which conferred upon the Federal Court jurisdiction to hear and determine certain appeals, carried with it the right of a party to proceedings to institute an appeal against a judgment or order made in proceedings to which that person was a party. The effect of the views of the majority in Peel v R [1971] HCA 59; (1971) 125 CLR 447 is to the same effect. As was said by Menzies J in that case (at 456) in relation to s68(2), the construction contended for by the respondent in the present case "would condemn the subsection to sterility". I do not consider that the authority of that case on this point has been affected by any later decision of the High Court. I conclude that if s68(2) operates so as to permit an appeal against acquittal then the present applicant has standing to make the application.

11. The respondent's submission that the Judiciary Act 1903, s68(2) does not confer a right of appeal against an acquittal was put on two bases namely, that such a right would offend the Constitution, s80, and alternatively, that if it does not offend that section, that upon a proper construction of s68(2), the subsection does not confer such a right. Whilst R v Sender (supra) might be thought to have determined that latter contention against the respondent, it was submitted that the High Court had determined to the contrary in Davern v Messel (supra).

12. The Constitution, s80 is in the following terms:

"80. The trial on indictment of any offence against any law

of the Commonwealth shall be by jury, and every such trial

shall be held in the State where the offence was committed,

and if the offence was not committed within any State the

trial shall be held at such place or places as the

Parliament prescribes."

13. In essence the respondent's argument was that the concept of trial by jury referred to in s80 necessarily carries with it the concept of finality of the jury's verdict and that a right of appeal against an acquittal is inconsistent therewith. It might be thought that so long as the ultimate judgment in any case where there has been a trial on indictment is the product of the verdict of a jury it cannot be said that s80 has not been observed (cf R v Snow [1915] HCA 90; (1915) 20 CLR 315, per Higgins J at 358) so that this Court would not have the power to substitute a verdict in the case of a Commonwealth indictable offence. I do not understand that Brown v R [1986] HCA 11; (1985-1986) 160 CLR 171 supports any proposition beyond the requirement that the ultimate judgment in a case where there is a trial on indictment must be the product of the verdict of a jury.

14. Substantially the respondent's argument on this point relied upon R v Snow (supra). In that case the respondent had been tried on indictment in the Supreme Court of South Australia for attempting to trade with the enemy contrary to the provisions of the Trading With The Enemy Act 1914 (Cth). The trial judge had held that the Act was not retrospective in operation so that those counts charging attempts to trade with the enemy prior to its commencement could not constitute relevant offences. As to the attempts alleged to have taken place after the commencement of the Act, the trial judge had held that there was no evidence to go to the jury. Accordingly, he had directed the jury to find verdicts of not guilty which they did. The respondent was thereupon discharged. The Crown applied for special leave to appeal to the High Court from the judgment of acquittal, or alternatively against the direction of the trial judge. It should be noted that the applicant was seeking to invoke jurisdiction conferred upon the High Court by the Constitution, s73, and that primarily the court was concerned with a proper construction of that section.

15. Griffiths CJ concluded (at 326) that the court had no jurisdiction to grant a new trial so that the grant of special leave would be futile. In part his Honour appears to have come to that conclusion by reference to the Constitution, s80. In particular, he said at 322-323:

"The common law doctrine as to the effect of a verdict of

acquittal is too well settled to require exposition, and it

is too late to inquire into its origin. If it had been

intended by the framers of the Constitution to abrogate that

doctrine in Australia, and to confer upon the High Court a

new authority, such as had never been exercised under the

British system of jurisprudence by any Court of either

original or appellate jurisdiction, it might have been

anticipated that so revolutionary a change would have been

expressed in the clearest language. To adopt the words of

Sir Peter Maxwell (founded upon the language of Marshall CJ

in United States v Fisher [1805] USSC 18; 2 Cranch, 358, at 390, 'it is in

the last degree improbable that the Legislature would

overthrow fundamental principles ... or depart from the

general system of law, without expressing its intention with

irresistible clearness, and it would therefore be absurd to

give any such effect to general words, simply because in

their widest and most abstract sense they admit of such an

interpretation' (Maxwell on Statutes, 1st ed, 66). So far

from finding any such clear indication in the Australian

Constitution, I find a clear indication of a contrary

intention. Sec 80 lays down as a fundamental law of the

Commonwealth that the trial on indictment of any offence

against any of the laws of the Commonwealth shall be by

jury. The framers of the Constitution, the electors who

accepted it, and the Parliament which enacted it, must all

be taken to have been aware of the absolute protection

afforded by a verdict of not guilty under the common law of

all the States. With this knowledge they thought proper to

enact that any indictable offence that might be created by

the new legislative authority established by the

Constitution should also be tried by jury. The history of

the law of trial by jury as a British institution (not

forgetting the Act called Fox's Libel Act) is, in my

judgment, sufficient to show that this provision ought prima

facie to be construed as an adoption of the institution of

'trial by jury' with all that was connoted by that phrase in

constitutional law and in the common law of England."

16. In a joint judgment, Gavan Duffy and Rich JJ concluded that the court had jurisdiction to give special leave to appeal from the judgment which followed the verdict but that that would be an empty remedy because the judgment was incapable of being interfered with whilst the verdict of the jury stood and there were no means of setting the verdict aside. Their Honours' conclusion that there were no means of setting aside the verdict of the jury appears to have flowed from their view of the effect of the Constitution, s80. In particular they said at 365:

"Is it to be supposed that the British parliament, when

providing by sec 80 of the Constitution that 'the trial on

indictment of any offence against any law of the

Commonwealth shall be by jury,' were leaving to this Court

in its appellate jurisdiction the right to control at its

pleasure the verdict of the jury? If so, that section is

indeed a 'mockery, a delusion and a snare.' But the truth

is that, in saying that the trial of offences shall be by

jury, Parliament has said that the persons tried shall have

all the benefits incidental to a trial by jury, and one of

them is that a verdict of 'not guilty' shall be final and

conclusive on the issue the jury are sworn to try, the issue

of 'guilty or not guilty'."

17. Neither Isaacs J nor Higgins J, both of whom dissented and would have granted leave to appeal, considered s80 to be an impediment to the granting of the application.

18. The remaining judgment was that given by Powers J. He agreed that special leave ought to be refused but for reasons somewhat different from those expressed by the other justices who formed the majority. His Honour held that the court did have the jurisdiction to hear and determine the matter but concluded that leave ought not to be granted upon a number of discretionary bases, one of which he found in the provisions of the Constitution, s80. I do not regard R v Snow (supra) as being authority for the proposition that a proper construction of the Constitution, s80 leads to the conclusion that one of the concomitants of trial by jury is an absence of appeal against a verdict of acquittal so that to admit to such a right of appeal would offend s80. Of the six justices who decided that case, three expressed opinions in support of that proposition and the other three expressed opinions to the contrary. In those circumstances that case does not constitute binding authority for the proposition for which it was cited (see In the Estate of Langley; Langley v Langley (1974) 1 NSWLR 46 at 54). Although the various processes of reasoning adopted by the justices are appropriate for consideration, it is not possible to formulate any relevant general principles from those various reasoning processes (see H C Sleigh Ltd v South Australia (1977), 136 CLR 475 per Jacobs J at 513-514 and Dickenson's Arcade Pty Ltd v Tasmania [1974] HCA 9; (1974) 130 CLR 177 per Barwick CJ at 188).

19. I am not persuaded that the expression "trial by jury" should be given the meaning contended for by counsel for the respondent. The preferable approach is that expressed by Gibbs CJ and Wilson and Dawson JJ in Kingswell v R [1985] HCA 72; (1985) 159 CLR 264 when their Honours said at 276-277:

"Section 80 requires that if there is a trial on indictment

of any offence against any law of the Commonwealth it shall

be by jury. ... If there is a trial by jury the ordinary

incidents of such a trial will apply; the judge will

continue to exercise his traditional functions, and, for the

purpose of imposing a sentence within the limits fixed by

the law, will form his own view of the facts, provided that

that view is not in conflict with the verdict of the jury."

20. So long as the trial is by what may fairly be described as a jury and so long as any ultimate determination of guilt is by verdict of a jury, it cannot be said that the provisions of s80 are offended.

21. The Constitution, s80, not standing in the way of the present application, consideration needs to be given to Davern v Messel (supra) which, in the submission of counsel for the respondent, is authority for the proposition that the Judiciary Act 1903, s69(2) ought not to be construed as conferring any right of appeal against an acquittal and that, insofar as R v Sender (supra) decided to the contrary, it is no longer good law. That former case was concerned with the proper construction of the Federal Court of Australia Act, ss24(1) and 28(1). Section 24(1) conferred on the Federal Court jurisdiction to hear and determine (inter alia) appeals from judgments of that court constituted by a single judge and from judgments of the Supreme Court of a Territory. Section 28(1) provided that the Federal Court might, in the exercise of its appellate jurisdiction:

"(e) set aside the verdict and judgment in a trial on

indictment and order a verdict of not guilty or other

appropriate verdict to be entered;

(f) grant a new trial in any case in which there has been a

trial, either with or without a jury, on any ground upon

which it is appropriate to grant a new trial ..."

22. The question for determination was whether s24(1) conferred upon the Federal Court a power to hear and determine an appeal by the Crown from an order made by the Supreme Court of a Territory whereby it had quashed the summary conviction of the respondent. The majority of the members of the court held that such a power was conferred upon the Federal Court by s24(1). In so doing the majority expressly approved an earlier decision of the Full Court of the Federal Court in Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547. In that case a single judge of the Federal Court had dismissed a charge of a breach of the Trade Practices Act 1974 (Cth), s79, and the prosecutor sought to appeal to a Full Court. It was submitted that as the order appealed from constituted a judgment of acquittal given in criminal proceedings in favour of the respondent, the unsuccessful prosecutor lacked authority to institute, and the Full Court lacked jurisdiction to hear, any appeal. Again the court was concerned with a construction of the Federal Court of Australia Act, ss24(1) and 28(1). In the course of his reasons for judgment (with which the other members of the court agreed) Deane J said at 560:

"An appeal, as of right, from a judgment of acquittal

pronounced by a superior court is not a recognized part of

the appellate process in the administration of criminal law.

The existence of such an appeal is contrary to a fundamental

principle of the common law. There is no relevant

legislative precedent for the Crown or other prosecutor

being given authority as of right to institute or maintain

such an appeal. As has been mentioned, it is a well-established

principle of statutory interpretation that a statute

is not to be taken as effecting a fundamental

alteration in the general law or abolishing or modifying

fundamental common law rights unless it uses words that

point clearly and unambiguously to that conclusion.

Applying that principle of construction to the present case,

I consider that the conclusion is unavoidable that the

general words used in s24(1)(a) and (b) to confer

jurisdiction 'to hear and determine appeals' do not confer

jurisdiction to hear and determine appeals in circumstances

where the existence of the jurisdiction and the right to

invoke it would be contrary to a fundamental principle

relating to the circumstances in which an appeal should

exist. The right of the subject which finds expression in

that principle, namely, the right to be spared the jeopardy

of an appeal from an acquittal after a hearing on the merits

of a criminal charge by a court of competent jurisdiction,

is not, upon proper principles of statutory interpretation,

to be swept aside by the general terms of a statute which

has no underlying policy requiring that such terms be given

such an effect and which contains nothing that points

clearly or unmistakeably or, indeed, at all, to that effect

as having been either contemplated or intended."

23. Counsel for the respondent sought to apply that dictum by analogy to the present case, drawing attention to similarities in expression used in the Federal Court of Australia Act, s24(1) and the Judiciary Act, s68(2). It seems to me that there is a fundamental flaw in that argument. The effect of what Deane J said was that before it could be said that there had been a fundamental change in the law so as to permit an appeal against an acquittal, there would need to be plain words to that effect and that it was insufficient to have recourse to general words which might or might not have that effect. In the present case, s68(2) does not stand alone. The reference in that subsection to (inter alia) "the hearing and determination of appeals" is descriptive of part of the jurisdiction of the court of a State or Territory in relation to offences against the laws of that State or Territory. In order to determine what that jurisdiction is one needs to go to the relevant laws of the particular State or Territory. The nature and ambit of the jurisdiction is to be found in such laws. If the law of this State conferred no relevant right of appeal beyond that conferred by the relevant sections of the Federal Court of Australia Act considered in Thompson v Mastertouch TV Service Pty Ltd (supra) and Davern v Messel (supra) it might readily be said that no right to appeal against an acquittal was conferred. However, in this State, there is an express right on the part of the Attorney-General for the State to apply for leave to appeal against an acquittal and there is conferred upon this Court express jurisdiction to consider such an application, grant leave and determine the appeal in such a way that the verdict of the jury does not stand. As is explained by Cox J in R v Sender (supra) the policy of s68(2) is "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State", (Williams v R (No 2) [1933] HCA 54; (1933) 50 CLR 536, per Dixon J at 560). This is not a case where the jurisdiction is sought to be found in general words. It is to be found in the very specific provisions of the Code which are sufficiently identified in a law of the Commonwealth applying State laws to Commonwealth offences.

24. In my view the objection to competency ought to be overruled.

25. I turn to a consideration of the substance of the application for leave to appeal.

26. Relevant provisions of the Crimes Act 1914 (Cth) are as follows:

"3. (1) In this Act, unless the contrary intention

appears: 'Commonwealth officer' means a person holding

office under, or employed by, the Commonwealth, and

includes:

...

(c) for the purposes of sections ... 73 ..., a person who,

although not holding office under, or employed by, the

Commonwealth, a Territory or a public authority under the

Commonwealth, performs services for or on behalf of the

Commonwealth, a Territory or a public authority under the

Commonwealth; and

...

73. (3) A person who, in order to influence or affect a

Commonwealth officer in the exercise of his duty or

authority as a Commonwealth officer, gives or confers, or

promises or offers to give or confer, any property or

benefit of any kind to or on the Commonwealth officer or any

other person is guilty of an offence."

27. There was evidence before the jury upon the basis of which they could have been satisfied that the respondent offered to one Peter Bennett sums of money if Bennett would allow him access to a container then at the premises of Seapak Transport in Launceston that container then not having been cleared by Customs. Those premises of Seapak Transport included a place for the examination of goods on landing appointed pursuant to the provisions of the Customs Act 1901 (Cth), s17(b), although the container was not within that place. Mr Bennett was the operations manager of Seapak Transport and as such had general superintendence of the premises. He understood it to be his duty to ensure that imported goods were not released until they had been cleared by Customs. He considered that it was his role to be responsible for the security of such goods because he believed that his employer had requirements to meet for the Customs Service.

28. The learned trial judge ruled that there was no evidence before the jury upon the basis of which he could find that Mr Bennett was at any relevant time a Commonwealth officer within the extended definition given to that expression by the Crimes Act, s3(1). That ruling was given by references to par(c) of that definition, there having been no suggestion that Mr Bennett conceivably could fall within any other part of the definition. The question which his Honour was required to determine was whether there was evidence before the jury upon the basis of which it could be found that Mr Bennett performed "services for or on behalf of the Commonwealth". In my view, it is plain there was no evidence to that effect and that the applicant's submissions are devoid of merit. Mr Bennett was employed by Seapak. Such services as he performed were performed as incidents of the performance by him of his contract of employment with that company. In no way can it be said that that company or Mr Bennett received any form of delegated power or authority from the Commonwealth. An earlier appointment of part of the Seapak premises under s17(2) was expressed as having been made subject to a number of conditions. Counsel for the applicant sought to place some reliance on those conditions. I would make the following observations about those conditions:

1 Plainly they were ultra vires the Customs Act and counsel

for the applicant conceded that to be so.

2 They did not apply to any appointment in force at the time

the respondent allegedly committed the offence charged.

3 There was no evidence that the relevant container was ever

within the appointed place.

4 At best, those conditions could be construed as being

indicative of circumstances in which the Customs Service

might be minded to have the s17(b) appointment revoked.

29. The appointment of a place under s17(b) does not result in a person having some form of association with that place thereby being put in the position of performing services for or on behalf of the Commonwealth. Nothing is required from the owner of an appointed place. It may be assumed that shipping companies and the like perceive there to be a commercial advantage in having at their premises an appointed place for the convenience of their customers. At the same time it may well be convenient for the Customs Service to have the facility of appointed places which have acceptable levels of security but which are provided at the cost of someone other than the Customs Service. The provision of such security is not provided by way of a service for the Commonwealth although it may consider such provision to be advantageous.

30. The expression "for or on behalf of" appearing in the Crimes Act, s3(1)(c), is to be construed as meaning "in some way concerned with the standing of one person as auxiliary to or representative of another person or thing" (per Stephen, Mason, Murphy and Aickin JJ in In re Ross; Ex parte Attorney-General for the Northern Territory [1980] HCA 2; (1979-1980) 54 ALJR 145 at 149; see also R v Portus; Ex parte Federated Clerks' Union of Australia [1949] HCA 53; (1949) 79 CLR 428, per Latham CJ at 435). In that sense there was nothing in the evidence to suggest that either Seapak or Mr Bennett performed any service for or on behalf of the Commonwealth. Seapak made available portion of its premises as an appointed place. In no way did it stand in the place of the Customs Service as auxiliary to it or representative of it. It assumed no responsibilities on behalf of the Customs Service. At best the Customs Service relied upon Seapak not breaching the Customs Act. Seapak's obligation not to breach the Act was one imposed upon every citizen and every corporation. There was no evidence that Seapak assumed any obligation to do anything as the auxiliary to or the representative of the Customs Service. There was no evidence that Seapak in fact performed acts which assumed the existence of any such obligation. Mr Bennett's obligations were those which arose out of his contract of employment with Seapak and were not more extensive than those of his employer.

31. I do not find it necessary to deal with the other submissions put by counsel for the respondent as to the alternative bases upon which the learned trial judge might have concluded that there was no case for the respondent to answer.

32. In my view, the application should be refused.