Before doing so, however, it is necessary to briefly deal with the applicant's objection to the s 58 documents lodged by the Respondent. Section 58 of the ADR Act relevantly provides:
(1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:
(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and
(a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and
(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.
The s 58 documents filed by the Commissioner include information going to the conduct of the applicant in respect of the perjury offence (including a police fact sheet, sentencing remarks and an ACT Court of Appeal Decision) as well as information relating to his background and reputation more generally. There are also administrative records relating to his licensing application.
Because the administrative review is confined to a consideration of whether the offence of perjury in the ACT, of which the applicant was convicted within the last ten years, is one "one involving fraud, dishonesty or stealing" it does not require a consideration of the applicant's fitness, reputation or conduct. He therefore objects to the Tribunal having regard to material detailing his conduct in relation to the offence. The Commissioner on the other hand submitted that it, "was not precluded from having regard to documents filed pursuant to s 58 of the ADR Act, including for informing itself as to the background of the matter."
The Commissioner has failed to explain how, in the circumstances, material evidencing the conduct of the applicant, when committing the perjury offence, or of the applicant's conduct, reputation and fitness more generally, is relevant to the Tribunal's determination under s 16(1)(a) of the SI Act. Given the decisions in Farah and Murabito, the consideration is confined an examination of the offence of perjury under the ACT Code to see if it necessarily involves "fraud, dishonesty or stealing".
As a result, I have not had regard to materials in the s 58 documents going to the applicant's character and the circumstances resulting in his conviction. Having reached that conclusion it is not necessary to consider the applicant's submission that the Commissioner is prohibited from relying on the police fact sheet by the operation of the Harman Principle: see Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 323, per Lord Scarman.
[2]
Relevant provisions of the ACT Code.
Part 7.2 of the ACT Code, sections 700 to 704, is found in Part 7, Administration of justice offences. Section 703(1) relevantly provides:
703. Perjury
(1) A person commits an offence (perjury) if -
(a) the person makes a sworn statement in a legal proceeding; and
(b) the statement is false; and
(c) the person is reckless about whether the statement is false.
Maximum penalty: 700 penalty units, imprisonment for 7 years or both.
A sworn statement is one made on oath or affirmation.
Part 2.2 - section 11 to 22 sets out the elements of an offence against the ACT Code. It mirrors the provisions of Part 2.2. of the Commonwealth Code, which are numbered 3.1 to 5.6. There are more authorities considering how the Commonwealth Code applies, that those relating to same provisions in the ACT Code.
Under the ACT Code "offences consist of physical and fault elements": s 11(1). Section 12(1) then specifies:
(1) A person must not be found guilty of committing an offence unless the following is proved:
(a) the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt;
(b) for each of the physical elements for which a fault element is required - the fault element or 1 of the fault elements for the physical element.
Physical element is defined in s 14:
A physical element of an offence may be -
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, happens.
Section 17 provides that there are four possible fault elements for any physical element of an offence: "intention, knowledge, recklessness or negligence." These are all defined in the ACT code:
18. Intention
(1) A person has intention in relation to conduct if the person means to engage in the conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.
19. Knowledge
A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events.
20. Recklessness
(1) A person is reckless in relation to a result if -
(a) the person is aware of a substantial risk that the result will happen; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) A person is reckless in relation to a circumstance if -
(a) the person is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is a question of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
21. Negligence
A person is negligent in relation to a physical element of an offence if the person's conduct merits criminal punishment for the offence because it involves -
(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist.
In the case of perjury, in which recklessness is the fault element, s 20(4) provides that proof of intention or knowledge will satisfy proof of that element, as well as proof of recklessness itself.
It is important to note that Part 7.2 of the ACT Code also contains an offence of aggravated perjury. This is found in s 702(1) which provides:
702. Aggravated perjury
(1) A person commits an offence (aggravated perjury) if -
(a) the person makes a sworn statement in a legal proceeding with the intention of procuring the person's or someone else's conviction for, or acquittal of, an offence (the relevant offence); and
(b) the relevant offence is punishable by imprisonment; and
(c) the statement is false; and
(d) the person is reckless about whether the statement is false.
Maximum penalty: 1400 penalty units, imprisonment for 14 years or both.
The maximum penalty for aggravated perjury is twice that for perjury. Aggravated perjury requires that a person make a sworn, false statement in legal proceedings with the intention of procuring a conviction for, or acquittal of, a person charged with an offence. It therefore only applies to criminal proceedings in which a person is charged with an offence. Perjury, on the other hand, applies to legal proceedings both civil and criminal as defined in s 701, and does not require any specific intention of a person in making a sworn, false statement.
The offences of perjury and aggravated perjury in the ACT Code are not precisely replicated in the Commonwealth Code.
[3]
Does the offence involve fraud, dishonesty or stealing?
Section 703(1) of the ACT Code does involve not theft. It does not require that a false sworn statement be made dishonestly or fraudulently, or with any specific intention. Unlike the offence of aggravated assault under s 702(1), no specific intention to procure a desired result in legal proceedings is required. What is required is that statement made in legal proceedings is false and that the person making the statement is reckless about that fact.
This requires that an offender who makes a false statement "is aware of a substantial risk" that the statement will be false, and that, having regard to the circumstances known to the offender, making the statement is an unjustifiable risk to take; see s 20(2). The fact that there is a substantial risk is a subjective element of the offence which must be known to the offender: see Hann v DPP (Cth) (2004) 88 SASR 99 where Gray J said at [26]:
In order to establish recklessness under the Criminal Code [Cth] it must also be shown that the defendant was aware of the substantial risk. Conscious awareness of risk is required; it is not enough to show that the risk was obvious or well known.
Whether taking the risk is unjustifiable is a somewhat different matter. In R v Saengsai-Or [2004] NSWCCA 108 the NSW Court of Criminal Appeal (Wood CJ at CL Simpson and Bell JJ) explained that, at [70]:
Recklessness with respect to a circumstance under the Criminal Code invites consideration of (i) the accused's awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused's advertent disregard of the risk.
The Victorian Law Reform Commission in its Recklessness Report, February 2024, at 6.78, suggested that the second element created complexity and involved both objective and subjective risk assessments, which could be characterised as requiring an objective judgment.
The offence of perjury under the ACT code does not require proof that that an accused know that a sworn, statement is false, or that it be made with the intention of procuring a specified outcome. Proof of recklessness as defined in s 20 of the ACT Code will suffice, as will proof of knowledge or intent. Section 703(1) does not require that the making of the statement be dishonest or fraudulent. This is to be contrasted with the offence of aggravated perjury, where an intention to procure a desired outcome in the legal proceedings is an element of the offence. That is clearly dishonest.
In Gregg v R (per Bathurst CJ, Hoeben CJ at CL and Leeming JA) the accused, as an officer of a company, was charged with two counts of engaging in conduct that resulted in the falsification of books affecting or relating to affairs of the company under to section 1307(1) of the Corporations Act 2001. One count did not on its face require an element of dishonesty, while the other count did: because it related to a sham transaction. The Court found no error in the trial judge's direction on count I to the effect that falsity did not require proof of dishonesty or any intention to deceive or mislead. On count 2, however, it did. The Chief Justice explained, at [447] that:
… the incorporation of the definition of falsity including the absence of any requirement to prove dishonesty or an intention to mislead or deceive was erroneous in circumstances where sham requires deliberate deception.
Dishonesty or fraud is not a stated element of the offence of perjury under s 703(1) of the ACT Code. There is no requirement that the accused know the statement is false, or that the accused have an intention of procuring a desired outcome in the proceedings by making a false statement. Both would demonstrate dishonesty if proved, as well as satisfying the element of recklessness under the ACT Code. Recklessness, as defined in s 20 of the ACT Code, envisages situations where a prosecution for perjury may be demonstrated by proof of knowledge and intention involving dishonesty: but it also envisages situations in which the offence is committed recklessly, without knowledge or intent. I do not accept that a conviction for such an offence necessarily involves dishonesty as submitted by the Commissioner. It may do so, but that is not necessarily the case.
While some authorities point to perjury as being an offence necessarily involving dishonesty, on closer examination it is apparent that they deal with cases in which a false statements were made with the intent of procuring a desired result. Bell J in Barber cited the Textbook of Criminal Law, 2nd Ed, Stevens, Lond. 1983, at p 699, as instancing, "the commission of perjury in order to avoid going to prison," as an offence of dishonesty. In that example, the false statement is made to procure a desired result. That is not a requirement of s 701(3). The reference in Farah, at [31], to perjury involving dishonesty, was made in the context of discussing the decision in Barber, and related to perjury under NSW law, not the ACT Code.
In McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 Gaudron J pointed to the importance of "a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled," in proving dishonesty. This is not a requirement of s 701(3). In Pollard, at 673 to 674, Abadee J, when discussing recklessness in the context of fraud and deceit, expressed the clear view such recklessness was dishonest. In that case His Honour found that to prove dishonesty the only intent necessary was an intent to "obtain money, a valuable thing or financial advantage." In contrast, the pursuit of an objective, advantage or benefit, as occurs in cases of dishonesty, fraud and deceit, is not a requirement of the offence of perjury under s under s 701(3). It is possible to be convicted of that offence, if committed recklessly and without knowledge or intent. When a person is charged with that offence, it is not possible to find that it involves dishonesty or fraud without further inquiry.
Mention should also be made of the offence of Goods in Custody contrary to 527C(1) of the Crimes Act 1900 (NSW) which was found to be an offence involving dishonesty in Nguyen v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 242. There the essence of the offence is that a person is in possession of goods reasonably suspected of being stolen or otherwise unlawfully obtained. A defence is available if the person charged satisfies the court that he or she had "no reasonable grounds" for suspecting that the goods were stolen or otherwise unlawfully obtained. The section itself puts honesty in issue.
That is not the case with the offence under s 703(1) of the ACT Code, which does not necessarily require proof of dishonesty or fraud. It is to be contrasted with aggravated perjury under s 702(1), which, while confined to criminal cases, clearly involves an intention to procure a desired outcome in proceedings. That is plainly dishonest.
As a result, I am satisfied that the applicant's conviction for the perjury contrary to the ACT Code is not for an offence necessarily involving fraud, dishonesty or theft.
Therefore, the decision will be remitted to the Commissioner for reconsideration, so that discretionary matters concerning the licence application, which are yet to be considered, may be dealt with.
[4]
Orders
The Tribunal makes the following orders:
1. An oral hearing is dispensed with.
2. The decision of the Commissioner made 11 June 2024 is set aside.
3. The decision is remitted to the Commissioner for reconsideration in accordance with these reasons within 28 days.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 September 2024
Should the application be determined without a hearing?
Section 50 (2) to (4) of the NCAT Act provide:
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case both parties have consented to the application being determined on the papers. Having reviewed the materials and submission it is plain that the applicant does not dispute the fact of his conviction for perjury under s 703(1) of the ACT Code, or its date, 19 April 2022. He does dispute that the conviction was one for an offence "involving fraud, dishonesty or stealing." He says that the offence does not involve fraud, dishonesty or stealing, and that, as a consequence, s 16(1)(d) of the SI Act does not require that his licence application "must" be refused; i.e. a mandatory refusal. Whether or not the offence is one ""involving fraud, dishonesty or stealing" is a question of statutory interpretation: see Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. It does not require an oral hearing, and can be readily determined by considering submissions addressing that issue.
I am satisfied that this matter can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.