Zarb v Kennedy

High Court of Australia|1968-07-01|Before: Owen JJ

The applicant is quite well aware of the Court's decision in this matter and I would ask your co-operation in advising the applicant of his position.

To this letter no reply was received but in July 1968 the appellant's solicitors searched the court records. On 10th November 1967 counsel advised the appellant's solicitor on the footing that the magistrate had, in fact, signed an order of which the document sent to the appellant by mistake on 2nd November was a copy. Even had there been some doubt about the meaning of the letter of 3rd November - which seems clear enough to me - the advice could not have been given on the footing stated had counsel known of the conversation of 3rd November which, it is to be recalled, was reported by the solicitor's clerk to the appellant as follows: "I told him the clerk said a clerical error had been made, that he sent a form 9 and he should have sent a form 11". The basis on which the opinion was given was stated by counsel as follows: "I further read the letter (i.e., the letter of 3rd November) as meaning that the magistrate, after making the form 9 order, then decided he should have made a form 11 order and that to have made a form 9 order was incorrect." On this footing the following advice was given: "Nevertheless the form 9 order remains the order of the court. Having made the order, the magistrate was thereafter functus officio and any attempt to reverse it, except by appeal, must be ineffective. Neither under s. 111 of the Justices Act nor by inherent power may a magistrate reverse an order; Gregory v. Murphy [1] . I therefore advise that the applicant is exempt from military service unless the Minister appeals against the order successfully." 1. [1906] V.L.R. 71.

At the hearing of the information with which we are now concerned on 14th October 1968, the appellant gave evidence that he had read counsel's opinion, that he believed that he was exempted, and, accordingly, he did not comply with the call-up notice. Although the opinion had been tendered and rejected, counsel for the appellant, in the course of addressing the magistrate read part of his opinion after having stated his intention of doing so. What he said was as follows: "Regulation 34 of the National Service Regulations makes quite clear the fact that the form 9, 10 or 11 as the case may be when signed by the magistrate is the formal order in a conscientious objection application. Usually the order is what is announced in open court. Regulation 34, however, lays down a different rule to that. When the defendant received the form 9 he was entitled to and indeed should have assumed that the magistrate had signed the original and that the clerk was not acting capriciously. That being so it followed that the magistrate was thereafter functus officio and any attempt to reverse the order, except by appeal, was ineffective. Neither under s. 111 of the Justices Act nor by inherent power may a magistrate reverse an order: Gregory v. Murphy [1] ." As it turned out, therefore, the magistrate did have the very terms of counsel's opinion before him. Speaking of this his Worship said: "Perhaps not all the facts were given to counsel for his opinion." His relevant finding was as follows: "I am not satisfied that the defendant had an honest and reasonable belief that he was exempted."

In these circumstances, even if the magistrate were wrong in refusing to admit the opinion - and he was not unless the defence to which it was directed was one applicable to an offence under s. 51 of the Act - its admission could have made no difference to the decision of the magistrate with which, having read counsel's opinion as well as the evidence, I am in entire agreement. The appellant, having heard the magistrate dismiss his application, having been told that the document sent to him first was sent by the clerk in error, and having had the letter of 17th November, it just did not lie in his mouth honestly to say as he did: "I was not told until today that an order had not been made exempting me." Assuming, contrary to my own opinion, that a mistaken belief as to his exemption could afford the appellant a defence to the charge under s. 51 of the Act, I am satisfied that the so-called defence was not made out and that the magistrate was right in rejecting it. This conclusion also makes it unnecessary to determine whether, if the appellant did labour under any mistake at all, that mistake was an error of fact or an error of law.

The last matter to be decided is whether s. 51 (2) of the Act required the court to sentence the appellant to two years imprisonment. I have no doubt that it did. The section makes an offender liable to a fine; furthermore it requires the court to ask the offender whether he would enter into a recognizance to comply with the subsequent call-up notice; it then provides as follows:

51 - (2) (c) if the person does not forthwith enter into such a recognizance to the satisfaction of the court, the court shall sentence him to imprisonment in respect of the offence for the period specified. The word "shall" as used in s. 51 (2) (b) and s. 51 (2) (c) is clearly mandatory. These provisions are entirely inconsistent with the court exercising the power conferred in general terms by s. 20 of the Crimes Act to release a person convicted of an offence against the law of the Commonwealth, either without passing any sentence upon him, or, upon his giving security of good behaviour. Section 20 is therefore excluded by s. 51 (2) (c) of the Act: Chu Shao Hung v. The Queen [1] . 1. (1953) 87 C.L.R. 575.

It follows, in my opinion, that the appeal should be dismissed.

Mr. Laurie said, fairly and forcefully, all that could be said in support of this appeal: but the law is too clear, and the facts too strong, to admit of any doubt that the appellant was rightly convicted of the offence charged. I therefore agree that the appeal be dismissed. As I concur generally in the reasons for this course given in the judgments of other members of the Court, I can confine my remarks to some aspects only of the case.

Whether failure to comply with the requirements of a call-up notice is an offence of absolute liability or involves mens rea seems to me to be in this case more a matter of description than of substance. The implications of the word "fail" do introduce a mental element; for a man cannot be said to have failed to present himself at an appointed time at an appointed place unless he knowingly and wilfully abstained from doing so. If he never had the notice to attend, or if he were precluded from attending by some events outside his control, he would not I think be guilty of failing to do so. But it is only in that sense that mens rea is an element in guilt under s. 51. Apart from that, the offence can be appropriately called one of absolute liability: see for recent examples of cases of absolute liability in England with discussions of the principles involved Warner v. Metropolitan Police Commissioner [1] ; Reg. v. Salter [2] . Nevertheless, if by an honest mistake the recipient of a notice thought that he was not required to obey it or had been excused from doing so, I am prepared to accept the view that his not doing so could be excusable - or at most a venial offence, not to be visited with severity if having learnt of his mistake he then shewed himself ready and willing to render the service the law requires. But this case is far removed from that.

The evidence before the magistrate did not shew that the appellant was honestly mistaken as to any relevant fact. He thought, and was advised, that he could take advantage of another man's mistake. By the mistake of a court officer he had been sent a wrong document. He, and those then advising him (not the senior counsel who appeared for him in this Court), were told that it had been sent in error; but he nevertheless hoped and his advisers told him that he could make use of it for his purposes. This specious idea, which was called in the argument an honest and reasonable mistake, was not the matter on which when he was charged he sought to rely. When the information was read to him and he was asked to plead, he said: "I have previously been proceeded against in respect of the alleged offence: I regard the present information as an abuse of process of the court: I object to pleading." But that an earlier information had been withdrawn by the Crown did not, in the circumstances, amount to an acquittal. It was no bar at all to the magistrate proceeding on the information before him. He did so, hearing evidence and argument on both sides including the appellant's evidence as to his belief in the effect of the document he had been sent. At the end the appellant was convicted of an offence under s. 51.

The appellant is now in gaol. He is not there because he did not comply with the call-up notice, or because he had made an honest mistake. He is in gaol because, after having been disillusioned of any mistake, he said he would not undertake the duties the law required of him. The magistrate was then obliged to sentence him to two years imprisonment, being the period of military service for which he was liable according to law, and which he refused to render. I agree that the magistrate had no option to award any lesser sentence. He was bound by the provisions of s. 51, which are obviously designed to be compulsive rather than punitive.

A suggestion was tentatively made to us that we could on this appeal consider whether or not the appellant should have been exempted from military service on conscientious grounds. This proposition was not persisted in. It obviously could not be sustained. The appellant had not sought to appeal to a court of review from the refusal of his application for exemption. Moreover, even if it were open to us to consider whether he is entitled under the provisions of the National Service Act to exemption on conscientious grounds, it is apparent that he is not. In the proceedings from which this appeal comes his counsel had said, with his assent, that he was willing to join the Army and to undergo "basic training". This expression was, I take it, used with the meaning it has in military parlance today, as the stage of recruit training before "corps training" which is the training of the recruit for the arm or branch of the Army in which he is to serve, armour, artillery, engineers, infantry or so forth. A man who is willing, as the appellant says he is, to be trained in combatant duties, in what he called "the martial arts", as a member of the Army and subject to military law, cannot be - within the meaning of s. 29A of the Act - "a person whose conscientious beliefs do not allow him to engage in any form of military service".

The appellant's real unwillingness is not to all forms of military service. It is to being required to take any part in, or in aid of, active military operations now in progress abroad. I understand this attitude. I recognize it as one which can be conscientiously based. But the sincere scruples to which it can give rise do not give any right to exemption from the obligations which the Act imposes or to any qualification of them. A man who under the Act is obliged to serve cannot, with impunity, refuse to do so, leaving the duty to others who are law-abiding and dutiful. Nor can a man on his enlistment pursuant to the Act make a bargain with the Commonwealth as to the orders he will, as a soldier, obey or the places in which he will serve.

The proposition that the appellant should have been tried by a jury cannot be sustained in law. It may be pertinent to add that any jury who were properly instructed and obedient to their oaths must, on the facts before us, have found the appellant guilty, as the magistrate did, of failing to obey the notice calling him up for service.

This appeal is brought against the conviction of and the sentence imposed upon the appellant on 14th October 1968 by a court of summary jurisdiction exercising federal jurisdiction under the National Service Act 1951-1966 (the Principal Act) as amended by the National Service Act 1968 (which came into force on 24th June 1968), upon an information laid by the respondent charging that the appellant, being a person upon whom a notice had been served under s. 26 of the Act, had, contrary to s. 51 (1) of the Act, failed to comply with the requirements of the notice, namely to present himself to the Officer-in-Charge at the Engineers' Training Depot, Swan Street, Melbourne on 17th July 1968 at 8 a.m.

Before dealing with the submissions made on behalf of the appellant I have thought it desirable to give an outline of some of the provisions of the Principal Act, as amended in 1968, which bear upon the questions which were debated before us and of some of the circumstances which led up to and followed upon the service of the call-up notice upon the appellant with which, it was alleged, he had failed to comply.

Part II of the Act, which includes ss. 10 to 18, contains provisions enabling the Minister, by notice published in the Gazette , to require all male persons, with certain exceptions not here material, who have attained the age of nineteen years to register for the purposes of national service and the persons to whom any such notice applies are required to register. Section 25 provides, inter alia, that a person who is registered or required to register under the Act, who has attained the age of twenty years, who is not exempt from liability to render service under the Act and who has not attained the age of twenty-six years shall be liable to render service as required by the Act. By s. 26 (1) the Secretary (who is defined to mean the Secretary to the Department of Labour and National Service) may serve on a person liable to render service under the Act a notice calling up that person for service with the Military Forces of the Commonwealth. The call-up notice is to state the time and place at which, and the authority to whom, the person served is to present himself for service (s. 26 (2)), and upon presenting himself for service he is deemed to have enlisted for service in the Regular Army Supplement and to have engaged to serve in that force for a period of two years (s. 27). Section 29A (1) provides that a person whose conscientious beliefs do not allow him to engage in any form of military service is, so long as he holds those beliefs, exempted from liability to render service under the Act and, by s. 29A (2), a person whose conscientious beliefs do not allow him to engage in military duties of a combatant nature but allow him to engage in military duties of a non-combatant nature is not, so long as he holds those beliefs, to be required to engage in duties of a combatant nature. Questions arising under these two subsections are to be heard and decided by a court of summary jurisdiction of a State or Territory of the Commonwealth constituted by a police, stipendiary or special magistrate (s. 29B), and an appeal against any such decision may be made to the "Courts of Review" mentioned in ss. 29C and 29CA. By reg. 34 made under the Act the court which hears an application for exemption based upon s. 29A and finds that the applicant holds a conscientious belief that does not allow him to engage in any form of military service is required to direct, "by order in accordance with Form 9" in the Schedule to the Regulations, that he be registered as a person exempt from liability to render service under the Act. If the finding is that the applicant holds a conscientious belief that does not allow him to engage in military duties of a combatant nature but will allow him to engage in military duties of a non-combatant nature, the court is required to direct, "by order in accordance with Form 10", that he be registered as a person who is required to engage in duties of a non-combatant nature only; and if neither such finding is made the court is to make an order "in accordance with Form 11" dismissing the application. By reg. 36 the Clerk of the Court is required, within seven days after the making of an order, to forward a copy of it to the applicant and to the Registrar.

Section 23 of the Act of 1968 repealed s. 51 of the Principal Act and inserted in its stead a new s. 51. The new section, which is the one with which the present case is mainly concerned, is in these terms:

(1) Where a notice has, whether before or after the commencement of the National Service Act 1968, been served on a person under section twenty-six of this Act and the person fails after the commencement of that Act to comply with the requirements of the notice, the person is guilty of an offence punishable, upon conviction, in accordance with the next succeeding sub-section.

(2) Where a person is convicted of an offence against the last preceding sub-section -

(a) the person is, subject to paragraph (c) of this subsection, liable to a fine not exceeding Two hundred dollars;

(b) the court shall, whether or not a fine is imposed on the person, ask the person whether he is willing to enter forthwith into a recognizance, to the satisfaction of the court, that he will comply with the requirements of any notice that is subsequently served on him under section twenty-six of this Act; and

(c) if the person does not forthwith enter into such a recognizance to the satisfaction of the court, the court shall sentence him to imprisonment in respect of the offence for a period equal to the period of service that he is liable to render under this Act in the Regular Army Supplement but, in that case, any order of the court imposing a fine on him ceases to have effect.

(3) A person who has entered into a recognizance under the last preceding sub-section but does not comply with a condition specified in the recognizance is guilty of an offence and, upon conviction, shall be sentenced to imprisonment for a period equal to the period of service that he is liable to render under this Act in the Regular Army Supplement.

(4) An offence against this section is punishable on summary conviction and not otherwise.

Sub-section (5) is not material in the present case and need not be set out.

It appears that in January 1967 the appellant became registered under the Act. He then applied to be exempted from liability to render service on the ground that he had conscientious objections to engaging in military service and his application was heard by a stipendiary magistrate and dismissed on 2nd November 1967. His Worship gave reasons for his decision in open court, the appellant and his legal advisers being present, and ended by saying, following form 11 in the Schedule to the Regulations, "I therefore find that the applicant does not hold a conscientious belief that does not allow him to undertake any military duties of a combatant or non-combatant nature and I accordingly dismiss the application". An entry in the court register was made to this effect and was signed by the learned magistrate on 3rd November. On the previous day, however, the Clerk of the Court, by error, had forwarded to the appellant a document in the following form:

Commonwealth of Australia Form 9 National Service Act order of exemption from liability to render service on the ground of conscientious belief 2051237

Upon hearing the application of John Francis Zarb of 429 Gaffney Street, Pascoe Vale South, 3044 Builder's Labourer I find that he holds a conscientious belief that does not allow him to engage in any form of military service and that he is, by virtue of the provisions of section 29A of the National Service Act, exempt from liability to render service under that Act.

The name of the magistrate was typed in but the original of the document had not been signed by him and in fact he had not made and never did make such an order. On the following day, 3rd November, the Clerk of the Court, having discovered the mistake that had been made, lost no time in taking steps to correct it. He immediately telephoned the appellant's solicitors and told them what had happened. He said that he would send them "a proper copy order" and asked for the appellant's telephone number so that he might tell him what had occurred. The solicitors, however, said "not to bother". Later in the day the Clerk posted to the appellant a letter enclosing a copy of the order dismissing the appellant's application for registration as a conscientious objector and expressing regret for the mistake that had been made.

Shortly after the Clerk of the Court had told the appellant and his solicitors of the mistake that had occurred and a copy of the order actually made by the magistrate had been received by them, junior counsel's opinion was sought by the appellant and on 10th November 1967 it was given. For reasons which will later appear a copy of this opinion is before us. Although that counsel had appeared for the appellant on the application for exemption and had been present in court on 2nd November when the magistrate had announced his decision, and although he knew also that the Clerk of the Court had informed the appellant's solicitors and the appellant that the document purporting to be a copy of the order of the court was not a copy of the order actually made but had been sent by mistake, he assumed, for the purposes of his opinion, that the magistrate had in fact made and signed an order in the form of the document which had been sent to the appellant on 2nd November and had later made and signed a second order dismissing the application. I fail to understand the reasoning which led him to take to be the fact that which I would have thought a person in his position must have realized was not the fact. In the result, however, he advised that the appellant was exempt from military service and suggested that a letter be sent to the Clerk of the Court in these terms:

We refer to your letter dated 3rd November 1967, to our client Mr. J. F. Zarb.

Counsel has advised that the form 9 order was effective to exempt our client from military service and that the order may only be reversed on appeal.

Our client will therefore retain his copy of the form 9 order but herewith returns the form 11 document.

We have minuted a copy of this letter to the Deputy Commonwealth Crown Solicitor.

A letter to this effect appears to have been sent and on 17th November 1967 the Clerk of the Court wrote to the appellant's solicitors a letter in which he said:

Due to a clerical error an incorrect form was forwarded in the first instance. Our file contains the original order of dismissal, signed by the magistrate and this order is the one which binds the applicant.

The applicant is quite well aware of the court's decision in this matter and I would ask your co-operation in advising the applicant of his position.

In the light of these facts it seems to me to be incredible that, at this stage at least, the appellant or his advisers could have believed that an order exempting the appellant from liability to render service had been made.

On 4th July 1968 an officer of the Commonwealth Police served upon the appellant a notice dated 3rd July 1968 calling him up for national service with the Military Forces of the Commonwealth and requiring him to present himself to the Officer-in-Charge at the Engineers' Training Depot, Swan Street, Melbourne, on 17th July 1968 at 8 a.m. He did not comply with the requirements of the notice and on 1st October 1968 the information upon which he was convicted was laid.

When the case came on to be heard on 14th October a number of matters were put forward by counsel then appearing for the appellant. Two of them only need be mentioned. One was that the call-up notice of 3rd July had not been served in accordance with s. 26 (1) because it had not been served personally by the Secretary to the Department of Labour and National Service. This objection was rejected by the magistrate. The other matter was a contention that the appellant had not failed to comply with the notice because he had, at the date when the notice required him to present himself for service, namely 17th July 1968, held an honest belief based upon reasonable grounds in the existence of a state of facts which, if they had existed, would have meant that s. 51 had no application to his case. The submission was no doubt based upon cases such as Maher v. Musson [1] and Proudman v. Dayman [2] and in support of it the appellant gave evidence that, having read his counsel's opinion in the previous November, he believed that he was exempt from service under the Act and that this was the reason why he had not complied with the call-up notice. In cross-examination, however, he said that the basis for his belief was that he was not satisfied with the judgment of the magistrate who had heard his application for exemption because "his reasons were inconsistent and contradictory" and that he considered that "the decision was unfair". He agreed that he had heard the magistrate dismiss his application in open court but said that he thought that "the form 9 was the correct order". This referred to the form of order which had mistakenly been sent to him. He said also that he had learnt for the first time during the course of the proceedings upon the information that no order of exemption had been made. In support of this suggested defence, counsel's opinion was tendered in evidence but was rejected by the learned magistrate.

(1934) 52 C.L.R. 100. 2. (1941) 67 C.L.R. 536.

The learned magistrate refused to believe that the appellant had an honest and reasonable belief that he was exempt from service and convicted him. He then asked the appellant, pursuant to s. 51 (2) (b), whether he was willing to enter into a recognizance that he would comply with the requirements of any call-up notice that might subsequently be served upon him and, after some discussion, the appellant refused to do so. He was thereupon sentenced to two years imprisonment, that being a period equal to the period of service that he was liable to render under the Act in the Regular Army Supplement.

Before this Court senior counsel who appeared for the appellant put a number of submissions but, very rightly in my opinion, relied only on some of the matters set out in the notice of appeal. Although in the final result I am of opinion that none of his arguments can be accepted I think it right to say that he put his points in an able and responsible fashion. One of the matters raised by him was directed to the constitutional validity of some unspecified provisions of the National Service Act and the Defence Act but, after some debate, he said very frankly and properly that he did not feel that he could press the point. He made, however, five submissions. First that the notice of call-up was not served upon the appellant in accordance with the Act. Section 26 of the Act, he contended, required that such a notice be served personally by the Secretary to the Department of Labour and National Service or by his delegate and that there was no evidence that the police officer who in fact served the document was such a delegate. I think it is impossible to attribute to the Parliament an intention that, except where service is made by post under s. 60, the Secretary must himself or by a delegate appointed under the Act serve all call-up notices. There is, in my opinion, a valid service if the Secretary causes such a notice to be received by the person to whom it is addressed. Next it was submitted that the magistrate should have found that the appellant honestly believed upon reasonable grounds that he was a person who was exempted from liability to render service and that this would afford an answer to the charge of failing to comply with the call-up notice. Further it was said that the opinion given by counsel in November 1967 should have been admitted in evidence and, if admitted, would have added force to the appellant's evidence. I do not think it necessary to decide whether in a prosecution for the offence created by s. 51, an issue such as was raised is a relevant one. The learned magistrate was plainly entitled to refuse to believe that the appellant held an honest belief that he was exempt from service under the Act and I have no hesitation in saying not only that the magistrate was entitled to reach that conclusion but that his finding was correct. I can find nothing in counsel's opinion, assuming it to have been admissible, which could have led to a different result. A further argument was put that the offence created by s. 51 was of such a serious nature that the Parliament could not make it triable summarily, as it purported to have done by s. 51 (4) and we were referred to s. 80 of the Constitution. I am unable to agree with this submission and it is sufficient to refer in this connexion to the decision of this Court in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1] . Finally it was said that the magistrate fell into error in thinking, as he plainly did, that the only sentence of imprisonment that he could impose in the present case was one of two years. Section 20 of the Commonwealth Crimes Act gave him, it was contended, a discretion which might be exercised in the case of a conviction for a breach of s. 51 (1). I agree with and do not wish to add anything to what has been said on this point by the Chief Justice, whose reasons I have had the opportunity of reading.

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. Zarb v Kennedy [1968] HCA 80

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