R v Tkacz [2001] WASCA 391

Court of Appeal (WA)|2001-12-06|Before: Malcolm CJ

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- TKACZ [2001] WASCA 391

Criminal law - Miscellaneous offences and matters - Whether respondent a "public officer" as defined in s 1(1)(d) of the Criminal Code (WA) - Respondent an employee of University established as a body corporate by statute - Whether respondent an employee of a "corporation ... established under a written law" - Respondent employed as Telecommunications Manager to purchase mobile telephones and make them available to certain employees of the University - Indictment alleged that respondent being a public officer without lawful authority or excuse acted corruptly in his office or employment so as to gain a benefit

Appeal allowed, order quashing indictment set aside and case remitted to District Court for trial

1 MALCOLM CJ: This is an appeal by the Crown from an order made by Hammond CJDC, the Chief Judge of the District Court, on 10 July 2001 that an indictment presented against the respondent in the District Court dated 13 October 2000 be quashed and the trial dates for the respondent's trial be vacated.

2 The indictment as originally presented contained two counts, namely:

(1) Between 17 December 1996 and 30 January 1998 at Bentley MICHAEL TKACZ, without lawful authority or reasonable excuse, acted corruptly in the performance or discharge of the functions of his office or employment, so as to gain a benefit.

(2) AND FURTHER that between 10 January 1997 and 11 May 1998 at Bentley MICHAEL TKACZ, without lawful authority or reasonable excuse, acted corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit.

3 Section 83(c) of the Criminal Code provides that:

"Any public officer who, without lawful authority or a reasonable excuse -

...

(c) acts corruptly in the performance or discharge of the functions of his office or employment,

so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 3 years."

4 The term "public officer" is relevantly defined in s 1(1) of the Code as follows:

"The term 'public officer' means a person exercising authority under a written law, and includes -

...

(d) a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law; ..."

5 Section 5 of the Curtin University of Technology Act 1966 (WA) under the heading "Establishment of the Curtin University of Technology" provides that:

"(1) On and after the day on which the Western Australian Institute of Technology Amendment Act 1986 comes into operation (in this section called 'the proclaimed date') the body corporate, consisting of the Council, the members of the academic and other staff, and the enrolled students, that was hitherto established under this Act by the name of the 'Western Australian Institute of Technology' is preserved and continues in existence as a body corporate under and subject to the provisions of this Act to be called the 'Curtin University of Technology', but so that the corporate identity of the body corporate and its rights and obligations are not thereby affected.

(1a) A reference to the Western Australian Institute of Technology, whether by use of that name or a similar or abbreviated form of that name --

(a) in a written law passed or made before the proclaimed date;

(b) in any document or other instrument made, executed, entered into or done before the proclaimed date; or

(c) made before the proclaimed date in any other manner,

shall, unless the context is such that it would be incorrect or inappropriate so to do, be read and construed as a reference to the Curtin University of Technology.

(2) The University --

(a) has perpetual succession;

(b) shall have a common seal;

(c) may sue and be sued in any court;

(d) may take, purchase and hold real and personal property, including property devised, bequeathed or given to the University;

(e) may grant, sell, alienate, assign or demise real and personal property acquired or held by the University as it thinks fit subject only, in respect of property devised, bequeathed or given to the University, to the express trusts of any deed, will, or instrument under which the property was acquired by the University;

(ea) may grant leases of land vested in the University under section 20 or 31 for a term not exceeding 99 years subject, where the term exceeds 21 years, to the approval of the Governor; and

(f) may do and suffer all other acts and things that bodies corporate may by law do and suffer."

6 There was before the learned Judge a certificate dated 4 October 1999 signed by one Mr Bolden-Walker, Payroll Manager, Human Resources of Curtin University of Technology which stated that:

"This is to confirm that the abovenamed [the respondent] was a permanent employee of Curtin University of Technology from 2nd February 1981 until 6th November 1998. Until termination, Mr Tkacz held the position of Telecommunications Manager and received a salary of $62,242 per annum. Mr Tkacz was employed under the General Staff Enterprise Agreement."

7 The trial was due to commence on 16 July 2001. The respondent made his application to the court to quash the indictment on 17 June 2001 on the ground that, under s 614 of the Code, the indictment was calculated to prejudice and embarrass him in his defence of the charge. The respondent submitted that he was not a "public officer" as defined in s 1 of the Code and consequently s 83 had no application to him. The relevant portion of the reasons for judgment of the learned Chief Judge is as follows:

"The term 'public officer' is defined in s 1 of the Code as meaning a person exercising authority under a written law and 'includes' a specified number of persons. It is put to me by the Crown that the two limbs or sections of the definition are disjunctive and that to fall within the definition of 'public officer' the person must either be exercising authority under a written law or be one of the named persons in that section.

In other words, that the definition section is saying that the word 'includes' is expansionary in effect. The University in question was established under the Western Australian Institute of Technology Act ... 1966, now known as the Curtin University of Technology Act, and by ss 5 et seq of the Act the University therein is, however, called the 'Institute', is established as a body corporate and s 7 sets out the functions of the Institute and s 8 sets out that the governing authority of the Institute consists of specified persons.

Sections 15 and 16 relate to the power of delegation by the Council and also the power of management, and upon reading the statute it is quite possible to identify a number of people who would be personnel at the University exercising authority under written law. It would perhaps and probably almost certainly be the members of the Council. It might perhaps be those persons vested with authority by statutes made by the University, for example, dealing with entrance standards and the supervision and teaching of enrolled students. The position of academic staff would also in my view not be entirely clear, but that is not relevant here today. As to whether the definition has disjunctive or conjunctive elements, the situation is that I find that the definition must be read in a conjunctive manner.

The authorities produced by counsel for the Crown are of interest indeed and they are certainly of sociological interest as to affairs of a century ago and it is surprising that there is no later authority on these issues, but those authorities do not incline me to any other conclusion. I'm also conscious of the need to interpret a penal statute in a rigorous manner and that the thrust of the authorities all cited to me all indicate that the intention of the statute in question is to be gathered from the provision[s] as a whole.

It therefore returns to this threshold question as to whether the accused here was a person exercising authority under a written law. I simply cannot see that that is the case. The written law must be the statute that establishes the University. There is no way that the definition extends as far as the applicant. The Act does not confer any powers or grant any authority to employees per se. It follows therefore that on what is before me I find that the accused in this matter does not fall within the definition of 'public officer' as contained in s 1 of the Code."

8 That ruling having been made, it was submitted by counsel for the Crown to his Honour that it was necessary to form a judgment in accordance with s 614 of the Code whether the respondent was embarrassed or prejudiced by the way in which the indictment was cast and, if so, the indictment should be quashed. It was accepted that there was within the Crown brief no evidence that the Crown could prove that the respondent was a "public officer" for the purposes of the Code, based on the interpretation of the definition adopted by his Honour. It was submitted that it was a matter for the Crown to revisit the issue whether the prosecution should proceed. As counsel put it, he was not sure that the learned Chief Judge could be satisfied that the indictment ought to be quashed. In the end, however, the learned Chief Judge ordered that the indictment be quashed and the trial dates be vacated.

9 The Crown appeals against those orders on the following grounds:

"1. The learned trial Judge erred in law and in fact in finding that the Respondent was not a Public Officer within the definition contained within section 1(1) of the Criminal Code, 1913.

2. The learned trial Judge erred in law in ruling that the definition of the term 'public officer' contained within section 1(1) of the Criminal Code, 1913 must be interpreted conjunctively.

3. The learned trial Judge erred in law in quashing the indictment when the indictment was not calculated to prejudice or embarrass the Respondent in his defence of the charges or was not formally defective."

10 The Crown seeks an order that the order quashing the indictment be set aside and the matter be remitted back to the District Court for a trial on the indictment.

11 It was contended in support of ground 1 that the respondent was a "public officer" within the meaning of s 1(1) of the Code in that he fell within par (d) of the definition as an employee of a "corporation ... established under a written law". It was submitted on behalf of the Crown that under s 5 of the Curtin University of Technology Act 1966, Curtin University was "established as a body corporate under a written law". This gave rise to a narrow issue as the respondent contended that the University was not established as a body corporate "under" a written law, but had been established as a body corporate "by" a written law. It was common ground that at all material times the respondent was employed by the University as Telecommunications Manager. The Crown brief contained a deposition by Gary Patrick Wood dated 16 August 1999, who commenced employment with the University in January 1997 as a communications officer, and had been employed as the Telecommunications Manager of the University since September 1998. The position of manager was previously held by the respondent, who was Mr Wood's immediate supervisor until late August 1998.

12 According to Mr Wood's deposition, the role of manager, among other things, was to ensure that the appropriate procedures were adopted and followed with regard to the purchase and distribution of communications equipment, including mobile telephones. The allegation against the respondent was that he exceeded the authority vested in him by making available mobile telephones to two persons who were not employed by the University, namely, himself and another person. It was submitted that in the light of Mr Wood's statement, assuming that it was accepted, it could not be said that the respondent was not exercising authority under a written law in his capacity as Telecommunications Manager. Consequently, so the submission ran, the respondent was a "public officer" as defined in s 1(1) of the Code.

13 The respondent contended that he was employed pursuant to s 17 of the Act which provides that:

"... the Council may appoint ... any member of the staff of the University, whether a member of the academic or non-academic staff and such appointment shall be upon such terms and conditions as the Council thinks fit."

14 The respondent conceded that he was at all relevant times an employee of the University. His submission was that, as an employee of the University, he was not a "public officer". He contends that, as an employee of the University, he did not exercise authority under a written law. He did not exercise an independent authority because he was always subject to direction by his superiors. He was not required to take an oath or to provide a bond. Further, it was submitted that the categories of person in s 1(1)(a), (aa), (ab), (ac), (b) and (e) in the definition of a "public officer" in the Code were in respect of offices inconsistent with his employment as Telecommunications Manager by the University.

15 In the context of the issue whether the University was a "body established under a written law" within par (d) of the definition of "public officer" in s 1(1) of the Code, it is necessary to consider the relevant written law first in its original form, namely, the Western Australian Institute of Technology Act 1966 (WA). In s 4 of that Act the "Institute" was defined as:

"... means The Western Australian Institute of Technology established under this Act." (my italics).

"(1) An Institute, consisting of a Council, the members of the academic and other staff and the enrolled students, shall be established in the State.

(2) The Institute shall be a body corporate by the name of 'The Western Australian Institute of Technology' and under that corporate name -

(a) has perpetual succession;

(b) shall have a common seal;

(c) may sue and be sued in any court;

(d) may take, purchase and hold real and personal property, including property devised, bequeathed or given to the Institute;

(e) may, subject to subsection (3) of this section, grant, sell, alienate, assign and demise real or personal property; and

(f) may do and suffer all other acts and things that bodies corporate may by law do and suffer.

(3) The Institute shall not, except with the approval of the Governor grant, sell, alienate, mortgage, charge or demise any real property."

16 Provision was made in s 6(1) for a common seal and in s 6(2) for judicial notice to be taken of the common seal affixed to any document and presume that it was duly affixed until the contrary is proved.

17 It is apparent, therefore, that the draftsman of the legislation and Parliament regarded the Institute as having been established "under this Act". In s 4(1) of the Act as it now stands, it is provided that:

" 'University' means the Curtin University of Technology established under this Act."

18 It follows that the respondent's submission that the University was not a body established under a written law but a body established by a written law is contrary to the expressed will of Parliament by the use of the word "under" in s 4 both as originally enacted and as amended in 1986. Depending on the context, there may or may not be a distinction between "by" and "under". In Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 the Full Court of the Supreme Court of New South Wales distinguished between a price fixed "under" and a price fixed "by" a regulation. Regulation 32 of the National Security (Price Fixing) Regulations 1940 (Cth) prohibited a payment or offer to pay for "declared goods" at a "greater price than the maximum price ... fixed in relation thereto under the Regulations". By reg 26(1) there was a provision which fixed a maximum price for the sale of goods purchased by a wholesaler. It was held that the prohibition in reg 32 applied only when a price was fixed "under" the regulations and did not apply to a price fixed "by" the regulations. As Jordan CJ (with whom Davidson and Street JJ agreed) said at 364:

"... at a greater price than the maximum price fixed by or under the Regulations. In a particular context, 'under' may clearly mean 'by', and it may be open to question whether it includes anything else: Corporation of Hyde v Bank of England [(1882) 21 Ch D 176 at 180-1]; A-G v Chapman [[1891] 2 QB 526 at 532]; but the question is, what does it mean in its present context?"

19 In Corporation of Hyde v Bank of England (1882) 21 Ch D 176 the local board of the district of Hyde in the county of Chester purchased certain securities as an investment of money received pursuant to the Public Health Act 1875 (Eng). Subsequently, the local board was reconstituted as a borough and incorporated by Royal Charter. Thereupon, by s 310 of the Public Health Act, all the property in the board vested in the Corporation of Hyde. The Bank of England refused a request by the Corporation to register the securities in the name of the Corporation or pay it the dividends thereon. The Corporation claimed a declaration that they were entitled to the securities and the dividends and to be registered as the owners of them in the books of the Bank. There was a question whether the securities constituted "property vested under the Act". As to this Fry J said at 180 - 181:

"In the next place it is said that the property in question is not 'property vested under the Act.' [His Lordship referred to sects 12 and 13.] It is said that the property which by force of those particular sections and any similar provisions vested in the local board (if it existed before the passing of the Act of 1875, a point upon which I have no information) on the passing of the Act, that that property and that only is transferred from the local board to the corporation by force of sect 310. On the other hand, it is contended that 'property vested under the Act' includes not only that property but all property which has come to the local board by force and virtue of the exercise of the authorities and powers given to them by the Act. I have come to the conclusion that the latter is the true construction.

In the first place, it is obvious that the general scope and intention of these clauses is to make the corporation the universal successor to the local board, - to place it as regards all its powers, and as regards all its property also, entirely in the same position as the local board. If it is to have the powers it is natural that it should have the property which either has resulted from the exercise of the powers in the past, or will be acquired by the continued exercise of the powers in the future. Again, I think, the language 'vested under this Act' ought not to receive a narrow construction referring only to the particular provisions of the Act; but in its true meaning it appears to me to extend to everything in the nature of property which, if the Act had not passed, would have come to the hands of the board. The local board had the power under the Act of making rates - general rates, and private improvement rates - and had the power of purchasing consols with money so produced for the purpose of forming a sinking fund. All those powers are powers given by the Act. The property resulting to the local board from the exercise of those powers appears to me to be described with reasonable exactitude as 'property vested in the local board under the Act'."

In the context of that case "under" was treated as a synonym of "by". Jordan CJ went on to say with respect to the word "under":

"The word occurs in a regulation which creates a new offence, not otherwise provided for by the Regulations, that of paying for declared goods a price higher than the maximum price fixed under the Regulations. In general, the Regulations do not themselves fix prices. They empower an authority, acting under them, to fix prices. It is only in one very special class of case (which includes the present) that a maximum price is fixed by a Regulation itself and not under a Regulation by an authorised person. And the Regulations themselves, in Reg 45, treat as two different things a maximum price fixed by and one fixed under the Regulations."

20 It was concluded by Jordan CJ in that case at 365 that, although a maximum price was fixed by reg 26 for a sale by one wholesaler to another (in the absence of some special fixation by the Commissioner under the Regulation), reg 32 imposed no penalty upon a person who bought goods from a wholesaler at a price higher than the maximum selling price fixed by the regulation itself, and not by an order or declaration under it.

21 In my view, the distinction which might otherwise be made between something done by an Act and something done under an Act, as exemplified by Ex parte Zietsch, is not applicable in the present case where in s 4(1) of the Act Parliament has chosen to legislate that the Institute and now the University is a corporate body "established under" the Act, both as originally enacted and as amended in 1986. This conclusion is supported by the relevant meanings of "under" and "by" in the present context as being capable of having the same meaning.

22 The respondent relied on a statement made by the then Attorney General, the Hon Peter Foss, Hansard Vol 333, 1996 at 2799, during the second reading of the Statutory Corporations (Liability of Directors) Bill 1996 that:

"Part 2 is intended to apply only to those corporations established by a written law, as opposed to those established under a written law."

23 While in particular contexts such a distinction may be made, there are also contexts where "by" and "under" have the same meaning. For example, both "by" and "under" are commonly used in contexts where the meaning is "pursuant to" or "in accordance with".

24 While the word "under" has a primary meaning in the sense of denoting a position beneath or below something which is overhead or above or covered by it, it also has a meaning as an adverb implying covered by or in accordance with some regulative power or principle: Shorter Oxford English Dictionary (3rd Ed) Vol II, 2290.

25 The word "under" as an adverb also has a meaning in denoting a state or condition including in the sense of denoting inclusion in a group, category or class. Thus the reference to "a member, officer or employee of any ... corporation ... established under a written law" identifies a corporation as one member of a class of various bodies established under a written law. The University is a member of that class by virtue of the provisions in the Act to which I have referred. In this context it matters not that the University was in terms established as a body corporate "by" the Act, as distinct from "under" the Act in the general sense, as it is clear from the definition in the Act that "under" was being used as an equivalent to "by" in the relevant sense. That sense is roughly the equivalent to "in accordance with" or "pursuant to". For example, "by and with" is described in A Dictionary of Modern Legal Usage (Oxford 2nd Edn) at 124 as follows:

"by and with is a classic legal REDUNDANCY with but one legitimate use: 'For appointments to constitutional offices the phrase by and with the advice of the Senate is a TERM OF ART and should not be changed.' Reed Dickenson Legislative Drafting 75 n4 (1954)."

26 The terms "by law" and "under law" are regarded as synonymous: ibid at 897. The word "under", like "by", is used in the sense of inclusion in a class or category or "in accordance with some regulatory power or principle": Shorter Oxford English Dictionary (3rd Ed) Vol II at 2290. Another example is a warrant "under" the King's "own hand": ibid; and see The Macquarie Dictionary (3rd Ed) at 229 where the meanings of "under" include "in accordance with" law.

27 The latter meaning is exemplified by Evans v Friemann (1981) 53 FLR 228 in which it was held that a decision of the Board of Examiners to fail a candidate under the Patent Attorneys Regulations pursuant to the Patents Act 1952 (Cth) was a "decision ... under an enactment" for the purposes of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Fox ACJ said at 238:

"There seems to me to be no doubt that the decision of the Board was made 'under an enactment'. 'Enactment' is defined in s 3(1) to mean, inter alia, a regulation passed under an Act. The term 'under' is, as I have said, used in the part of the Constitution (s 76(ii)) upon which the legislative power principally rests. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [(1945) [1945] HCA 50; 70 CLR 141] the expressly non-exhaustive test used in relation to the term in s 76(ii) was to ask if the right or duty owed its existence to federal law, or depended upon federal law for its enforcement (per Latham CJ [(1945) 70 CLR at p 154]); see also Felton v Mulligan [(1971) 124 CLR 369]. In the present Act the word has a similar meaning, which I believe can be taken as being, or including, 'in pursuance of' or 'under the authority of', and, of course, a decision purporting to be 'under' in either of these senses is included. From the definition of 'decision to which this Act applies' without more, it is apparent that there does not have to be a specific duty cast on the decision maker (cf s 7). In this case, the enactment is the Patent Attorneys Regulations. In any of the senses of 'under' which I have mentioned, the decision of the Board was made 'under' the regulations, and therefore 'under an enactment'."

28 In my opinion, the University was at all material times a corporation "established under a written law" within the meaning of par (d) of the definition of "public officer" in s 1(1) of the Code.

29 It is in this context that the next issue falls to be considered, namely, whether at the material times the respondent was a "public officer" by reason only of the fact that he was an employee of the University. This issue arises in the context of the construction of the "means ... and includes" form of the definition of "public officer".

30 By s 7(1) of the Act the functions of the University as an educational institution are set out, including in s 7(1)(g) the provision of:

"... such facilities relating to the foregoing functions as the Council thinks necessary or conducive for their attainment."

"(2) The University shall have all such powers, rights and privileges as are reasonably necessary to enable it to carry out its functions.

(3) The University may carry out its functions and exercise its powers, including the power to enter into business arrangements, within or outside the State."

31 In his deposition in the Crown brief, Mr Wood described the role of the Telecommunications Manager as it applied to the respondent as:

"... to ensure that the appropriate procedures are adopted and followed with regard to the purchase and distribution of communications equipment."

32 On the face of it, the evidence to be given by Mr Wood, as contained in his deposition, was to the effect that the Telecommunications Manager's functions included the entry into business arrangements with Telstra regarding the supply of telephones and associated equipment, including mobile telephones, and making of payments for their purchase and use. If this evidence were accepted, it would tend to establish that the Manager was empowered to carry out functions and exercise powers conferred on the University by s 5(2)(d) and s 7 of the Act with respect to the purchase and distribution of communications equipment, including mobile telephones. Mr Wood's evidence, if accepted, would also tend to establish that his actions in supplying mobile telephones to persons not employed by the University went beyond his authority, which was that of a "public officer" within the meaning of the statutory definition. If this evidence were accepted, his guilt of the offence charged would be established.

33 In my opinion, there was in the Crown brief evidence fit to be put before a jury that the respondent was a "public officer" in that he was a person exercising authority under a written law, namely, the authority delegated to him under the Act in his capacity as Telecommunications Manager, in relation to the purchase of mobile telephones on behalf of and in the name of the University, and making them available to persons duly authorised to be supplied with them. The case against him is that he acted corruptly by supplying two such telephones to himself and another without such authority so as to obtain a benefit in the form of use of the mobile telephones at the expense of the University.

34 In my opinion ground 1 of the grounds of appeal has been made out.

35 It was also submitted by the Crown that the respondent was a "public officer", even if the Court concluded that he was not "a person exercising authority under a written law" within the opening words of the definition in s 1(1) of the Code. The submission was that the words " 'public officer' means a person exercising authority under a written law, and includes" the various categories of persons designated, were to be read disjunctively rather than conjunctively. In other words, the use of the words "means and includes" had the effect that the specific classes of persons mentioned were deemed to be persons exercising authority under a written law, whether or not they were in fact or in law exercising such authority. The Crown said that those specifically listed were deemed to be persons exercising authority under a written law even if as a matter of fact or law they did not do so. The respondent argued that the definition should be read conjunctively.

36 The definition of "public officer" which now appears in the Criminal Code was introduced by the Criminal Law Amendment Act 1988 (WA). The original designation prior to the amendment was "person employed in the Public Service" which was defined as:

"... includes officers and men of the Defence Force and police officers, and persons employed to execute any process of a Court of justice and persons employed by the Commissioner of Railways."

37 Mr Murray QC (as he then was) regarded this definition as unhelpful, clumsy and rarely used in the Code without being modified in the relevant sections: The Criminal Code: A General Review Vol 1 (June 1983) at 75. The learned author went on to recommend at 75:

"It seems to me that it would be much better to use the term 'public officer' and I recommend that a definition of such an individual be inserted in Section 1 (See Appendix A) to widen the existing definition so as to include public employees and officers other than persons employed in the public service in the strict sense of the Public Service Act, members of the Defence Force, Police Officers, Sheriff's Officers, Bailiffs and persons employed in the WAGR Commission. I have endeavoured to devise an appropriate general description of the nature of the person referred to as a public officer, and then for clarity have included a number of specific categories of individuals, which might assist to remove doubts and further aid interpretation of the initial general description.

My aim has been to include all those within WA who perform duties of a public nature and to impose upon them the obligations which from the point of view of the criminal law go with the assumption of a role of that type. I have not included members of the Defence Force or Public Officers of the Commonwealth who are adequately covered in relation to their duties and obligations by the provisions of Part VI of the Commonwealth Crimes Act. The definition I devised for Section 1 is based upon that which appears in the Commonwealth Crimes Act, Section 3 and the Tasmanian Code, Section 1 which appeared to me to be the most suitable models.

"Any person who, being employed in the Public Service, takes or accepts from any person, for the performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any promise of such reward, is guilty of a misdemeanour, and is liable to imprisonment for three years."

39 The definition proposed by Mr Murray in his report was that:

" 'public officer' means a person discharging a duty imposed by any Act or of a public nature, or holding office under or employed by, the State of Western Australia, whether for remuneration or not, and includes -

(a) a police officer;

(b) a person employed to execute any process of a Court;

(c) an officer of the public service within the meaning of the Public Service Act, 1978; and

(d) a member, officer or employee of any public authority, board, commission or committee established pursuant to any Act."

40 It is apparent that a number of changes were made to the definition when the amendments were incorporated in the Code in 1988. There was a widening of the class of persons specifically included and, in particular, an expansion of the class in par (d) as well as removal of the limitation in the opening words to persons "holding office under or employed by the State of Western Australia".

41 The present s 83 (as amended in 1988) provides that:

"Any public officer who, without lawful authority or a reasonable excuse -

(a) acts upon any knowledge or information obtained by reason of his office or employment;

(b) acts in any manner, in the performance or discharge of the functions of his office or employment, in relation to which he has, directly or indirectly, any pecuniary interest; or

(c) acts corruptly in the performance or discharge of the functions of his office or employment,

so as to gain a benefit, which pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 3 years."

42 The relevant benefits in this case were the mobile telephones he made available to himself and a third party which were paid for by and thus were the property of the University.

43 The Crown submitted that a person falling within pars (a) to (e) of the definition of "public officer" need not also be a person exercising authority under a written law. It was contended that all of the persons mentioned in the various paragraphs were intended to be included within the definition of "public officer" whether or not they were in fact exercising authority under a written law.

44 In view of the conclusion which I have reached with respect to ground 1, it is not strictly necessary to deal with ground 2, but as it was fully argued and is a matter of considerable public interest, it is appropriate to deal with it. It was contended, in effect, that the definition was wide enough to include persons who would be employed in the public sector or, as in the present case, by a body established by or under an Act and were intended to be caught by s 83 as amended who acted without lawful authority or a reasonable excuse.

45 Of such a use of the word "includes", Young CJ, Starke and Gray JJ said in Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 at 660:

"When the word 'includes' is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say, to bring within the word something that would otherwise not be within it: Savoy Hotel Co v London County Council [1900] 1 QB 665 at 669. The classic statement is of course to be found in the advice of the Privy Council in Dilworth v Comr of Stamps [1899] AC 99 at 105, which was quoted by the learned trial judge. Yet in a passage that is worth quoting, Kitto J has warned against taking that statement so literally as to reduce the inquiry to a consideration of the meaning of the word 'includes'. In YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395 at 401-2; [1964] HCA 12; [1964] ALR 667 at 670, Kitto J said 'Unlike the verb "means", "includes" has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Comr of Stamps [1899] AC 99 at 105, 106, should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole."

46 It is apparent that the definition of "public officer" was introduced to enlarge the body of persons covered by s 83 of the Criminal Code over those previously described as "employed in the public service".

47 In R v McCann [1998] 2 Qd R 56 the Court of Criminal Appeal of Queensland considered the meaning of the definition of "public officer" in s 6(2) of the Criminal Law Amendment Act 1997 (Q) which defined "public officer" as follows:

" 'public officer' means a person other than a judicial officer, whether or not the person is remunerated -

(a) discharging a duty imposed under an Act or of a public nature; or

(b) holding office under or employed by the Crown;

and includes, whether or not the person is remunerated -

(c) a person employed to execute any process of a court; and

(d) a public service employee; and

(e) a person appointed or employed under any of the following Acts ..., and

(f) a member, officer, or employee of an authority, board, corporation, commission, local government, council, committee or other similar body established for a public purpose under an Act."

"The same definition of 'public officer' was contained in the Criminal Code 1995. In place of s 87 and other sections of the 1899 Code, that statute made it an offence to bribe a wide range of people, including a 'public officer'. The provisions of that 1995 Act which repealed the 1899 Code were to commence on a day to be fixed by proclamation. In the meantime, the Criminal Law Amendment Act 1997 had repealed the 1995 Code and with it the considerably extended bribery offences for which it provided."

48 This led the learned Judge to conclude that the chapter containing s 87 deserved legislative attention. His Honour went on to say at 77 - 78:

"The Western Australian analogue to s 87 used to be materially the same. A new provision was substituted in 1988. It concerns the bribery of 'any public officer', an expression which much like 'public officer' in Queensland's amended Code, is defined to include all employees of state and local government as well as the staff of any authority, corporation, board or commission established under a written law."

49 In Dilworth v Commissioner of Stamps [1899] AC 99, the House of Lords was concerned with the interpretation of two provisions in the Charitable Gifts Duties Exemption Act 1883 (Eng) which provided as follows:

"2. In this Act, the term 'charitable purposes' includes devises, bequests, and legacies of real or personal property respectively of whatever description to public institutions such as libraries, museums, institutions for the promotion of science and art, colleges and schools, or to hospitals, orphan, lunatic, or benevolent asylums, dispensaries."

3. Notwithstanding anything contained in the Deceased Person's Estates Duties Act, 1881, or in any other Act of like character, no duty whatsoever shall be payable in respect of any charitable devise or bequest."

50 As to these provisions, Lord Watson said at 105 - 106:

"Sect. 2 is, beyond all question, an interpretation clause, and must have been intended by the Legislature to be taken into account in construing the expression 'charitable devise or bequest,' as it occurs in s 3. It is not said in terms that 'charitable bequest' shall mean one or other of the things which are enumerated, but that it shall 'include' them. The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include,' and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."

51 This distinction has been accepted as authoritative as Pearce and Geddes in Statutory Interpretation in Australia (4th Ed) par 6.40 at 190 say:

"... the expressions are incompatible with one another, one limits and the other extends. Persons who say means and includes invariably use the expression to limit the meaning of the word defined."

52 In YZ Finance Company Pty Ltd v Cummings [1964] HCA 12; (1963) 109 CLR 395 the High Court was called upon to consider the definition of "security" in s 24 of the Money-Lenders and Infants Loans Act 1941-1961 (NSW). Sub-section (2) of that section provided that:

"In this section 'security' includes bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan."

53 McTiernan J, after referring to the passage in the speech of Lord Watson in Dilworth v Commissioner of Stamps, which I have quoted above, said at 399:

"I agree entirely with the way Sugerman J applied this passage in the course of his reasoning in Bachelor & Co Pty Ltd v Websdale [[1963] SR (NSW) 49; (1962) 79 WN 494]. His Honour said, 'the enumeration in sub-s (2) adds nothing to the natural import of the word "security". Indeed all the matters enumerated are within the strictest meaning of that term and, within that meaning, the second limb of the definition is of the widest import. All the matters enumerated share the common characteristic that they relate to securities by which rights in relation to specific property of the debtor are conferred. These considerations lead to the conclusion that "include" in sub-s (2) is equivalent to "mean and include" and that the definition therein given is intended to be exhaustive or at least that the securities intended to be embraced all share the common characteristic of conferring rights against specific property' [[1963] SR (NSW) at 52 - 53]. The word 'security' in the context of sub-s (1) could, in the absence of sub-s (2), include a promissory note. All the transactions mentioned in sub-s (2) are securities in themselves. None of them needs any expression of legislative intent to be a security for the purposes of sub-s (1). The manifest object of sub-s (2) to be gathered from its contents is to afford guidance as to what the term 'security' in sub-s (1) is intended to be confined. I think it would be contrary to the legislative intention revealed by adding sub-s (2) to sub-s (1) to enlarge by construction the scope of the word 'security' in sub-s (1) to bring within the operation of the latter provision a promissory note, as no such instrument falls within the enumeration of securities in sub-s (2). In my opinion, this sub-section provides 'an exhaustive explanation' of the meaning of 'security' for the purposes of sub-s (1). The meaning of 'security' elsewhere in the Act is not, of course, governed by sub-s (2)."

"Without subscribing to everything that was said in the judgment in Bachelor & Co Pty Ltd v Websdale [supra], I agree in the conclusion that sub-s (2) of s 24 exhaustively prescribes the ambit of the word 'security' for the purposes of the section. It is expressed as a statement of what the word 'security' in the section 'includes'. Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well known statement of Lord Watson in Dilworth v Commissioner of Stamps [supra] should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'includes'. Strictly speaking, that word cannot be equivalent to 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole."

55 In Hepples v Commissioner of Taxation (1990) 22 FCR 1 the Full Federal Court gave detailed consideration to a statutory definition in the "means and includes" form in s 160A of the Income Tax Assessment Act 1936 (Cth) in the context of Pt IIIA of the Act dealing with capital gains and losses and, in particular, s 160M(6) and (7) which concerned the deemed disposal of assets. Surprisingly, this decision was not referred to by counsel for the Director of Public Prosecutions. The word "asset" was defined by s 160A as follows:

"In this Part, unless the contrary intention appears, 'asset' means any form of property and includes -

(a) an option, a debt, a chose in action, any other right, goodwill and any other form of incorporeal property;

(b) currency of a foreign country; and

(c) any form of property created or constructed, or otherwise coming to be owned without being acquired,

but does not include a motor vehicle of a kind mentioned in paragraph 82AF(2)(a)."

56 Gummow J described the effect of this form of definition at 21 as follows:

"Section 160A uses the expression 'means ... and includes' rather than simply 'means' or 'includes'. As a general proposition, the use of the expression 'means and includes' indicates an exhaustive explanation of the meaning which for the purposes of the statute must be attached to the term the subject of the definition, and conveys both the idea of enlargement and exclusion: Dilworth v Commissioner of Stamps [1899] AC 99 at 105 - 106; YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395 at 398 - 399, 401 - 402, 405. But, in a given context, the draftsman may have used 'include' not so much to extend the ordinary meaning of the defined term as to specify as falling within the definition that which might otherwise have been in doubt: Lilleyman v Pinkerton (No 2) [1982] FCA 279; (1982) 71 FLR 135 at 138.

This, in my view, is the function served by pars (a), (b) and (c) of s 160A. Paragraph (c) makes it clear that the assets with which Pt IIIA is concerned extends to those which were created or constructed rather than acquired from one another. The reference to currency of a foreign country removes any doubts that might arise from the circumstance that where Australian currency was the money of payment for a transaction, foreign

currency would not be proper tender: cf Re Ikin; Ex parte Same & Lamborghini Tractors of Australia Pty Ltd (1985) 4 FCR 582 at 584, and s 160K(5) of the Act. Paragraph (a) serves to emphasise that all forms of incorporeal property, that being one form of property, are included within the definition of 'asset'.

In that case the asset was the trade secrets, connections and goodwill of an employer's business."

57 In my opinion, whether one regards the definition of "public officer" in the first or second of the two senses so helpfully described by Gummow J, the respondent falls within the definition either as a result of enlargement of what might otherwise have been the meaning or of what might otherwise have been in doubt.

58 This conclusion means that the respondent falls within the definition whether or not the words "means ... and includes" are construed disjunctively or conjunctively. The natural reading of the definition compels me to the conclusion that the definition should be construed conjunctively rather than disjunctively. Consequently, while ground 2 does not succeed, the appeal must still be allowed on the basis of the conclusion that I have reached with respect to ground 1.

59 As a result of the conclusion reached in relation to ground 1, it cannot be said that the indictment was calculated to prejudice or embarrass the respondent in his defence of the charges or was formally defective.

60 For these reasons, I would allow the appeal and order that the order of the learned Chief Judge quashing the indictment be set aside and that the case be remitted to the District Court for trial on both counts on the indictment.

61 ANDERSON J: I agree that this appeal should be allowed. The order quashing the indictment should be set aside and the matter remitted to the District Court for trial. My reasons are as follows.

62 The amended indictment charged the respondent with two offences that he "being a public officer" acted corruptly to gain a benefit. This offence is created by s 83(c) of the Code which provides:

"Any public officer who, without lawful authority or a reasonable excuse -

...

(c) acts corruptly in the performance or discharge of the functions of his office or employment,

so as to gain a benefit ... is guilty of a crime ... "

63 The indictment was quashed by Hammond CJDC on the ground that, on the evidence contained in the Crown brief, the respondent was not a "public officer" within the definition of "public officer" in s 1(1) of the Code. The definition is what may be described as a "means and includes" definition. It is in the following terms:

"The term 'public officer' means a person exercising authority under a written law, and includes --

(a) a police officer;

(aa) a Minister of the Crown;

(ab) a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;

(ac) a member of either House of Parliament;

(b) a person authorized under a written law to execute or serve any process of a court or tribunal;

(c) a public service officer or employee within the meaning of the Public Sector Management Act 1994;

(ca) a person who holds a permit to do high-level security work as defined in the Court Security and Custodial Services Act 1999;

(cb) a person who holds a permit to do high-level security work as defined in the Prisons Act 1981;

(d) a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law; or

(e) any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not;"

64 The Curtin University of Technology exists by force of the Curtin University of Technology Act 1966 (WA) (formerly the Western Australian Institute of Technology Act 1966 (WA)). In s 5(1) of that Act, the University is designated as a "body corporate" with a "corporate identity". It is provided that the body corporate consists of "the Council, the members of the academic and other staff, and the enrolled students". Prima facie, the respondent was "other staff" and the Crown case is that he came within subpar (d) in the definition of "public officer" in the Code as being "a member ... or employee of ... [a] corporation ... or similar body established under a written law".

65 There is evidence that, at the time the respondent is alleged to have acted corruptly, he was employed by the University as Telecommunications Manager. His duties included superintending the purchase by the University and the distribution to employees of items such as mobile telephones. The corrupt acts which the Crown alleged he committed were arranging for the allocation of university mobile phones to persons who he knew had no claim to that privilege. Hammond CJDC held that, on the Crown brief, the respondent was not shown to be a public officer because the evidence did not prove, or tend to prove, that in point of fact the respondent "was a person exercising authority under a written law" within the first part of the definition of "public officer". He held that the first part of the definition which is introduced by the word "means" and the second part of it which is introduced by the words "and includes" must be read "in a conjunctive manner".

66 As I understand the Chief Judge's reasoning, he meant by this that the import of the first part of the definition was not enlarged or clarified by the specific categories enumerated in the second limb. Even if the respondent was an employee of a "corporation ... or similar body established under a written law" within subpar (d) in the second limb, he was not a public officer unless he was also "a person exercising authority under a written law" in the natural (narrow) meaning of those words in the first part of the definition. As to whether the respondent in his office as Telecommunications Manager was "a person exercising authority under a written law", his Honour said:

"I simply cannot see that that is the case. The written law must be the statute that establishes the university. There is no way that the definition extends as far as the applicant. The act does not confer any powers or grant any authority to employees per se."

67 With respect, I am not able to agree with this construction of the definition of "public officer". In my opinion, the evident purpose of subpar (a) to subpar (e) is to declare that the persons who fall within the subparagraphs are included within the meaning of the term "public officer" for the purposes of the Code. The result is that if the respondent falls within the description set forth in subpar (d), he must be regarded as falling within the definition of "public officer". The meaning of the term extends to him.

68 In my opinion, there is nothing strained in this construction of the definition. It does not create a fiction or anomaly. It is true that the Curtin University of Technology Act does not contain a job specification for Telecommunications Manager. But I do not see why an executive serving a statutory body should not be regarded as a public officer deriving his authority from the statute creating that body. In carrying out his duties, the respondent was simply the persona designata who carried out the functions of the University referable to the office of Telecommunications Manager. In this sense, he exercised authority under the written law which gave that body its existence and corporate identity.

69 The respondent, who appeared in person, also argued that the University was not within the list of entities enumerated in subpar (d) of the definition section in that the University is not an "authority, board, corporation, commission, local government, council of a local government, council or committee or similar body ... ". In my opinion, the University is plainly a corporation or similar body. As has been pointed out, it is expressly provided that the University is a "body corporate" with a "corporate identity" in s 5(1) of the Curtin University of Technology Act 1966 (WA).

70 The respondent also argued that the University was not established "under" a written law within the meaning of s 1(1)(d). He submitted that the University was established "by" the Curtin University of Technology Act, not "under" it. It is possible to argue that the University came into existence as an entity directly by force of its creating Act and hence was established "by" the Act rather than "under" it. However, this would only be a point of importance if, in enacting the Criminal Code, the legislature intended that persons should not be regarded as public officers for the purposes of the criminal law if they are employees of a corporation

established by a written law, but should be so regarded if they are employees of a corporation established under a written law. I can think of no good or sensible reason why parliament would wish to create that dichotomy in this legislative context. In my opinion, the word "under" in the phrase "established under a written law" in s 1(1)(d) of the definition of "public officer" in the Code is intended to encompass what would be signified by the word "by" in the phrase "established by a written law". To put that in less abstract terms, the phrase must be construed as meaning "established by or under a written law".

71 EINFELD AJ: I have had the benefit of reading the draft reasons for judgment of the Chief Justice and Justice Anderson. Upon the proper construction of the relevant legislation, there was, in my opinion, evidence from which the respondent could be convicted of the offences in the indictment. I agree therefore that the appeal should be allowed and the case sent for trial.

University of Technology Act 1966

Australian Institute of Technology Amendment Act 1986

Law Amendment Act 1988

Law Amendment Act 1997

Australian Institute of Technology Act 1966(WA)

Security (Price Fixing) Regulations 1940

Decisions (Judicial Review) Act 1977

Acts Amendment Act 1899

Security and Custodial Services Act 1999

Gifts Duties Exemption Act 1883

Infants Loans Act 1941

Tax Assessment Act 1936

Sector Management Act 1994

At a glance

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Cases Cited (7)