RE ROBERT KEITH BLACK MAGISTRATE OF THE MAGISTRATES COURT AT PERTH; EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2009] WASC 41 (26 February 2009)

RE ROBERT KEITH BLACK MAGISTRATE OF THE MAGISTRATES COURT AT PERTH; EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2009] WASC 41 (26 February 2009) - WASC 2009 case summary — Zoe

[97]

The first question to be decided is whether s 107(c) creates for the present purpose one or several offences. Here, with respect, I find myself in disagreement with the learned Judge. It seems to me that the opening words of s 107, read with the specific words of sub-section (c), create two offences only, one of knowingly sending and one of knowingly attempting to send a postal article possessing any one or more of certain characteristics. The complaint only charges the defendant with knowingly sending, not with knowingly attempting to send. If the postal article in question has more than one objectionable word, mark or design, if it has some of such words, marks or designs thereon and some therein and some on its envelope and some on its cover, nevertheless only one offence, in my view, is created. If there are words to which all the five adjectives can be applied, or a collection of words to some of which each of the five adjectives can be applied separately, still, in my view, only one offence is created. Were it otherwise, for example, if a man knowingly sent by post a postal article which contained one word both indecent and obscene, another indecent word, another blasphemous word and another libellous word, and if all of those words were grossly offensive as well, he would commit ten offences. The principles adopted by this Court in R v O'Loughlin; Ex parte Ralphs [(1971) 1 SASR 219] might save the defendant from being convicted more than once in respect of the same word, but could not on this interpretation save him from several convictions for several different words. I cannot think that Parliament intended anything like this. I think that the case falls into the line of authorities represented by Smith v Perry [[1906] 1 KB 262]; Hedberg v Woodhall [(1913) [1913] HCA 2; 15 CLR 531]; Moore v Allchurch [[1924] SASR 111]; per Napier J., as he then was, at p 119; Thomson v Knights [[1947] KB 336]; Naismith ...; and O'Sullivan v Truth and Sportsman Ltd [(1957) [1957] HCA 8; 96 CLR 220]. I agree with Mr Cox that the observations of the learned Judges of the High Court in the last-mentioned case at p 224 are practically conclusive on this point.

The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow. See, for example, Bastin .... So it may be, as Mr Cox suggests, that s 107(a) creates several offences if more than one of the things referred to therein is enclosed in the same postal article, but it is not necessary to decide that. In s 107(a) the various prohibited things are each separated by the word 'or', whereas in s 107(c) the word 'or' only appears once before the last item in the collection, and this has sometimes been regarded as a feature of importance, though with respect, it seems to me that it can only possess very limited significance.

I think, then, that s 107(c) only creates one offence of sending a postal article of the kind referred to. This conclusion renders it unnecessary to discuss many of the points canvassed about the form of the complaint in the event of the Court holding that more than one offence was alleged in it. (551 - 552, emphasis supplied)

[126]

It is submitted that this is incorrect because evidence that is truthful, evidence that is correct, that is not erroneous, may in any event be misleading. Evidence given that is truthful may not be the whole truth and as a result may lead into error being made. False evidence is evidence that is incorrect or erroneous or is not truthful evidence. Misleading evidence may be truthful or correct evidence. The submission is that the section penalises not only evidence that is untruthful but also evidence that is misleading and that these are separate and distinct offences. It is therefore said that the basis of Her Honour's conclusion is incorrect as it refers to but one of the acts offending against section 33(1) of the Act. As a result it is submitted that it ought not be followed. As I understand it the correctness of the other decisions referred to in the prosecutors submissions is not disputed. What appears to be said however is that in these particular instances where the word 'or' appears are different to the section now under consideration. They are instances of one offence being created with the various alternatives indicated by the work 'or' being simply incidents of that single offence. That is that possession of an illegal substance for the purpose of distribution is the offence with an incident of that offence being to sell or supply. Similarly the single offence is of causing grievous bodily harm, with the intent to maim, disfigure or disable being alternative incidents of the intent required. This is different it is said to an offence under section 33(1) the Act of either giving evidence which is false, that is untruthful, incorrect or erroneous, or the different offence of giving evidence which will not necessarily be untruthful, incorrect or erroneous but is misleading. As a result it is submitted that two offences are created by section 33(1) of the Act.

It is my understanding that neither the decision of the Court of Criminal Appeal in New South Wales in Cassell nor the decision of Sweeney DCJ in Mercanti are binding upon me. They are however persuasive authority. The decisions are clearly at odds. It is the case that the decision in Cassell approaches from a different angle than does the decision of Sweeney DCJ in Mercanti the question of whether a statute worded in substantially the same terms as section 33(1) of the Act creates more than one offence. It does appear to me however that notwithstanding this both decisions are directed towards the same question; that is whether or not the relevant statutes create one or two offences. In all the authorities to which reference has been made the question of whether a particular statute creates one or two offences is said to depend upon the intent of Parliament as disclosed by a proper construction of the Act being considered. In Cassell four judges, the original appeal judge and three judges of the Court of Criminal Appeal, reached the conclusion that the word 'or' in section 87 of the ICAC Act creates two offences and that such conclusion better reflects the objects of the legislation; that is that that is the intent of that Act. The court in Cassell recognized and referred to the fact that in other circumstances the word 'or' had been held to mean 'and', thereby creating not two but one offence. Sweeney DCJ in Mercanti concluded that the intent of the legislature by section 33(1) of the Act is to create but one offence. In my view the conclusion of Sweeney DCJ relies upon her conclusion that the intent of Parliament was to penalise the giving of untruthful evidence. As previously set out for a statement to be 'false' the statement must be untrue, incorrect or erroneous. For a statement to be 'misleading' it is not necessary for it to be any of those things but merely capable of leading into error. A statement that is true or not incorrect or not erroneous may well be capable of leading into error. As was set out by Smart J in Cassell '... it is important that a witness speak the whole truth and that his evidence not be misleading' in examinations such as are conducted under the Act. With respect, in my view, section 33(1) of the Act does not intend to penalise only the giving of untruthful evidence but also evidence that though truthful may be misleading. Accordingly, I prefer the view advanced in Cassell and decline to follow the view expressed in Mercanti.

[131]

First, the submissions do not explain how the primary judge 'failed to appreciate the duplicity argument'' as distinct from rejecting it. Indeed the reference to Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19; 79 ALR 1 in the appellant's submissions to the primary judge and to this court, and in the primary judge's reasons for judgment, suggests that the primary judge did appreciate the argument. An argument was put below that s 998(1) created one offence of doing something intended to create a false appearance with respect to the price of securities, and another offence of doing something intended to create a misleading appearance with respect to the price of securities. It was submitted that 'false'' meant 'deliberately untrue' while 'misleading' meant 'true but misleading in the context': 1/155 line 56-156 line 4. That analysis for s 998(1) was supported by the citation of Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19; 79 ALR 1, a case on the construction of s 229(1)(i) of the Customs Act 1901 (Cth). It was submitted that 'the issue in duplicity is not just whether you are able to meet it but whether a jury, in coming to the decision, consider the true import of each word beyond a reasonable doubt and not shovel it together': 1/156 lines 21-4. That was the argument which the primary judge rejected. The primary judge held that what the prosecution had to prove was the doing of something intended to create a particular appearance: it sufficed if that appearance could be characterised as false or misleading. As the primary judge said, Mason J in North v Marra Developments Ltd [1981] HCA 68; (1981) 148 CLR 42 at 58-9 ; [1981] HCA 68; 37 ALR 341 appeared to treat the words 'false or misleading appearance' in the predecessor to s 998(1), namely the Securities Industry Act 1970 (NSW) s 70, as a single integer of one offence, not distinct integers of separate offences. Mason J said the object of s 70 was to protect the market from 'artificial managed manipulation' and to cause it to be 'real and genuine, free from manipulation'. He said that the 'false or misleading appearance' which conduct in breach of s 70 is calculated to create 'is that the market ... appears to be real or genuine, there being no overt sign of market support or manipulation'. In Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd [1998] NSWSC 157; (1998) 28 ACSR 58 at 62-3, Gleeson CJ used similar language in saying that conduct found in breach of s 998(1) in that case had 'both the purpose and effect of creating, temporarily, an artificial market and price'. An artificial, managed, manipulated, non-genuine market is one with a false or misleading appearance [78].

[140]

In many circumstances where there has been a breach of s 129(2), it is likely that the material furnished will be 'information' as well as being contained in a 'return' and that the material will be both 'false' and 'misleading'. In that situation I am in no doubt that Parliament did not intend that the furnisher of the material could be charged with four separate offences. The act which attracts a penalty pursuant to s 129(2) is furnishing material in the manner and circumstances referred to where that material possesses one or other of the forbidden characteristics of being 'false' or 'misleading'. That being the case, only one offence is created by s 129(2).

One of the concerns underpinning the law in relation to duplicity is that a person convicted or acquitted of a charge which is duplex, may be denied the benefit of a plea autrefois acquit or autrefois convict. Once it is established that s 129(2) creates only one offence, that concern is overcome. An acquittal or conviction on a charge of furnishing material in contravention of the section will provide the accused full immunity from a further prosecution under the section.

It is, of course, proper and desirable for the prosecution to confine the charge as far as possible. If it is not asserted that the furnished material was both false and misleading, the charge should be limited to the particular forbidden characteristic relied upon. This course appears to have been taken in relation to a charge alleging a breach of s 129(1) in Ward (1989) 42 A Crim R 56. In that case, it was alleged that the material which was the subject of the charge was false. There was no allegation that it was misleading. Accepting that s 129(1) also only creates one offence, the eventual verdict against that accused would have enabled her to plead autrefois convict or acquit in the event that the Crown subsequently sought to lay a further charge alleging a breach of s 129(1) relying on the same material, but alleging that it was misleading.

I have not been referred to any authority which adverts to the proposition that a charge alleging that information or conduct was 'false or misleading' is duplex. In my experience, borne out by a cursory examination of the authorities, this allegation is commonly included in charges. I draw some comfort from this in relation to my conclusion that s 129(2) creates only one offence, and that the charges under consideration are not bad for duplicity [13] - [19].

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Judgment (157 paragraphs)

RE ROBERT KEITH BLACK MAGISTRATE OF THE MAGISTRATES COURT AT PERTH; EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2009] WASC 41 (26 February 2009)

Legislation Cited (12)

Cases Cited (11)