Sachter v Attorney-General

The section has been considered by this Court in Lowenstein's Case [1] . By that decision the majority of the Court decided that s. 217 was a valid exercise of the legislative power of the Commonwealth.

We have at this sittings declined to allow the correctness of that decision to be canvassed; we have declined to reconsider it.

As a first point in support of the appeal Mr. McIntosh endeavoured to show that in the particular circumstances of this case the proceedings had developed into a case in which there was in fact a trial upon indictment contrary to s. 80 of the Constitution. To support that view he laid hold of the fact that the charges had been amended so that they were not exactly those upon which the Court directed the bankrupt should be charged under s. 217 of the Bankruptcy Act. He also laid hold of the further fact that the Attorney-General appeared by counsel to conduct the prosecution. We think that there is no substance in the contention.

In the judgment of Latham C.J. in Lowenstein's Case [1] , there is the passage which was read during the course of the argument. It shows that his Honour contemplated an appearance for or at the direction of the Attorney-General to prosecute a charge made in pursuance of s. 217 of the Bankruptcy Act.

In the judgment of McTiernan J. there appears a passage which explicitly says: "Upon the exercise by the court of its power to charge the bankrupt a criminal proceeding is instituted to which the Crown and the accused, but not the court, become parties" [2] .

Therefore there is nothing in the fact that counsel appeared for the Attorney-General and obtained amendments of the charges which in any way supports the view that the proceedings did take the form of a prosecution on indictment so as to require a jury.

Actually the charges which were made against the bankrupt were four. On one he was acquitted at the hearing. On another, made under s. 210 (1) (d) of the Act, it appears clearly enough from what has been said on behalf of the Crown that the charge was misconceived. The charge was that he made a material omission in a statement relating to his affairs in omitting to state certain matters which are now immaterial, and what is material, in omitting therefrom the receipt of certain moneys from Parimax Pty. Ltd. in the name of Sachter. It is conceded frankly on behalf of the Crown that that particular receipt would not naturally have taken a place in the bankrupt's statement of his affairs.

That charge therefore fails and we must quash the conviction upon that charge and the sentence thereon, which was a sentence of one month's imprisonment concurrent with the other sentences.

Of the two remaining charges, one was made under s. 209 (g) and was that the bankrupt omitted to keep such books of account as are usual and proper in the business carried on by him - it was a business of importer and exporter of textiles - and as sufficiently disclose his business transactions and financial position during the period from 1st July 1951 to 20th March 1953. The other charge was made under s. 210 (2) (c).

With respect to the charge made under s. 209 (g), it has been made perfectly clear by the argument before us that the books which were in fact kept were not true accounts in certain respects in the period from 30th June 1952 to December 1952, and that they were kept in a way which would not enable anybody to see the true picture with respect to specific items. The motive for doing this may be a matter rather of speculation than of certainty but it cannot have been honest. Motive, however, is of no great materiality except for the purpose of punishment.

We shall not go into the figures which have been discussed before us, but the items through which we have been taken are quite convincing as showing that there was a definite course adopted to conceal from those who merely inspected the books the exact financial state of the business as it stood at that time.

We think that the conviction on the charge under s. 209 (g) must stand. The sentence imposed was one of four months' imprisonment. The maximum sentence which the judge of the Bankruptcy Court could impose was six months' imprisonment. He took into consideration the circumstances and the admissions made by the bankrupt, which he could not but think were not ill-advisedly made, and he fixed the sentence at four months. This court could not, unless it were clearly of opinion that the learned judge erred in the exercise of his discretion, interfere with the sentence. The sentence must stand.

The charge which was made under s. 210 (2) (c), namely that the bankrupt had made omissions in books affecting or relating to his property or affairs, etc., seems clearly enough to have been made out and that conviction must stand. A concurrent sentence of one month's imprisonment was imposed upon the bankrupt in respect of that conviction and there is no reason for interfering with it.

The result is that an order will be made quashing the conviction and the sentence on the charge under s. 210 (1) (d) and confirming the convictions and sentences on the other two charges. Subject to quashing of the conviction under s. 210 (1) (d) the appeal will be dismissed with costs.