Barton, E.A. v Croner Trading Pty Ltd

[1984] FCA 149

Re: EDWINA ALICE BARTON
And: CRONER TRADING PTY. LIMITED
Nos. G199 to G216 of 1983
Criminal Law and Procedure
(1984) ATPR para 40 - 466

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Criminal law and procedure - Application to state special case - Contest as to finding of fact - Whether prosecutor should have leave to re-open on hearing of application to state case - Inference to be drawn from the circumstances - onus of proof.

HEARING

SYDNEY

#DATE 7:6:1984

JUDGE1

This is the statement of a special case to the Full Federal Court pursuant to s.25(6) of the Federal Court Act, 1976 made upon the application of both parties in a series of prosecutions under s.79 of the Trade Practices Act, 1974. The informations for the offences charge a number of contraventions of s.53(a) and (c) of the Trade Practices Act said to arise out of representations allegedly made by the defendant in connection with the sale of certain toys. The informations which are of immediate concern were laid on 1 August 1983. The prosecution alleges that certain of the contraventions occurred on 2 August 1982 when the goods in question were displayed for sale at a retail store. A question arises in this connection, and otherwise, whether the prosecution was commenced within the one year time limit provided by s.21 of the Crimes Act, 1914 (see, for example, Thompson v. Riley McKay Pty. Ltd. (No. 3) (1980) 43 F.L.R. 293).

Although both parties joined in the application to state a case to the Full Court, they were unable to agree on one particular fact to be included in the special case, namely, the date upon which a toy kangaroo was first displayed and offered for sale at Woolworths Limited's Big W store at Chullora.

The background facts to the prosecution appear from the draft Special Case in the schedule hereto. In dispute is the date upon which the toy kangaroo purchased by Mervyn Reilly from Woolworths Limited's Big W store at Chullora was first displayed and offered for sale (see draft Special Case, para. 13). Evidence was led by the prosecutor in an endeavour to establish that the date in question was Monday, 2 August 1982. The defendant, on the other hand, submitted that there existed a reasonable doubt that this was the date, submitting that it was possible that the kangaroo was put on display on either Friday, 30 July or Saturday, 31 July, 1982.

The evidence led by the prosecutor, prior to the close of the case for the defence, was given by Michael John Manfredotti, the Operations Manager of Woolworth's store at the time. Mr. Manfredotti's affidavit, sworn 26 March 1984, reads, so far as material, as follows:

"3. As Operations Manager, my duties included making decisions about when certain lines should first be put on display to the public in the Chullora Big W store. I used the 'REMARKS/DISPLAY' column of the ADVT LINES ADVICE form to record my instructions about the date of first display.

4. I have looked at an ADVT LINES ADVICE, 'buff' as they are commonly known, headed 'BIG W W.C. 2/08/ . . ., MEMO W 382/32, ISSUED 24/05/82'. A copy of that document is annexed hereto and marked with the letter 'A'. I note that four particular toy lines - plush fruggle in a jar, plush puggle in a bag, plush koala comm. games and plush matilda kangaroo - have been bracketed together by means of a handwritten bracket in the 'REMARKS/DISPLAY' column, next to which the word 'MONDAY' has been written.

5. I recognise that handwriting notation in the 'REMARKS/DISPLAY' column - that is, the bracket and the word 'MONDAY' - as being in my handwriting. That notation constitutes an instruction by me that the four toy lines which I bracketed together are not to be put on display to the public in the Chullora Big W store until the Monday of the sale, which in this case was Monday, 2 August 1982.

6. The said four toys were an 'XW' line which signifies a product not normally carried by the store and as such limited stock is received.

7. On this occasion, I recall having regard to the reasonable proposed selling price, the extent and quality of advertising and the limited quantity of the toys and decided (sic) that to ensure stock being available for the advertised date the goods were not to be placed on display until the morning of 2 August 1982.

8. The system at the store is that the document and notation thereon are treated as instructions to and acted upon by employees known as the 'price and fill team'. I have no reason to doubt that my instruction was carried out by staff in the Chullora Big W store at that time in accordance with the usual practice."

The defendant objected to the admissibility of the whole of this affidavit on the ground of its lack of relevance. Although the affidavit provides primary evidence of only part of the events now in question, for reasons which appear later, I am of the opinion that the affidavit does tend to establish matters now in dispute and is thus admissible. The objection made by the defendant goes to the weight rather than the admissibility of the affidavit evidence.

The document headed "ADVT LINES ADVICE", described as "the buff", being annexure "A" to Mr. Manfredotti's affidavit is, so far as material, as follows:

(ADVT LINES ADVICE FORM DELETED)

Mr. Manfredotti also gave oral evidence in chief that there was a procedure in the store at the time that "XW" lines of limited quality and good value were not to be put on show until the advertised date because Woolworths "buy these . . . lines in to complement the range that we carry within the store."

In cross-examination, Mr. Manfredotti said that he would have made the notation on the buff on either Wednesday, 28 July 1982 or Thursday, 29 July 1982; and that he would have given the document to the "price and fill" team on Friday, 30 July 1982. He also said that, although he had no specific recollection, his notation on the buff suggested to him that he would have explained to the leader of the "price and fill" team that the lines in question were not to be tied up until Monday, 2 August 1982. Mr. Manfredotti also said that he had no recollection of seeing the lines in question being placed on display. The prosecutor called no further evidence and closed her case.

Although the defendant cross-examined Mr. Manfredotti, it called no evidence on this aspect of the proceeding. The parties then addressed on the findings of fact which should be made in the present context. It was submitted on behalf of the defendant, inter alia, that, in the absence of evidence from the leader of the "price and fill" team, it would not be proper to infer that Mr. Manfredotti's instructions were in fact carried out. The prosecutor then sought leave to re-open her case and to call evidence from Karan Marie McKinnon, the leader of the "price and fill" team at the store in July and August 1983.

The defendant opposed the application to re-open, mainly on the ground that, since this was a criminal prosecution, it would be wrong in principle to permit the prosecution to re-open in the absence of any exceptional circumstance and none existed here (see Shaw v. R. (1952) 85 C.L.R. 365; Lawrence v. R. (1981) 38 A.L.R. 1 per Gibbs, C.J. at p.3).

Whilst it is common ground that I have a discretion in the matter, I do not think that the prosecutor has advanced any ground which is sufficient to justify the grant of leave to re-open, given the defendant's opposition to that course (cf. Reakes v. Reakes (1928) 45 W.N. (N.S.W.) 123 at p.124). The prosecutor must be taken to have been at all times aware that the absence of at least one member of the "price and fill" team from the witness box would inevitably lead to the defendant's commenting upon that absence (see Jones v. Dunkel (1959) 101 C.L.R. 298 at p.321). Given knowledge or at least constructive knowledge that the defendant was likely to adopt that course, no attempt was made on behalf of the prosecutor to explain her failure to call at least one member of the "price and fill" team. In the absence of any such explanation, I do not think that it would be fair to the defendant to permit the prosecutor to re-open her case after submissions had been made on behalf of the parties as to the finding of fact to be made. I refuse the application for leave to re-open.

I return to the evidence of Mr. Manfredotti. That evidence is specifically in point up to the stage at which Mr. Manfredotti placed his notation upon the buff. Thereafter, the evidence relied upon by the prosecutor is circumstantial in that she asks the court to draw an inference that Mr. Manfredotti's instruction was in fact carried out. In this connection, it is true that an important distinction must be drawn between the drawing of inference in a criminal as distinct from a civil case. The general position was explained in Luxton v. Vines (1953) 85 C.L.R. 352 at p.358 in citing from a passage in Bradshaw v. McEwans Pty. Ltd. ((1951) unreported) as follows:

"'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. . . .'"

Can it be said, then, that the facts established by Mr. Manfredotti's evidence are "such as to exclude reasonable hypotheses consistent with innocence" on this aspect of the prosecution?

In this connection, the defendant relies upon an answer given by Mr. Manfredotti in cross-examination to the effect that the earliest time the toy could have been put on display was the morning of Friday, 30 July 1982. But that answer must be understood in its context, which is as follows (I have emphasised the answer):

"MR. GAILBRAITH: Mr. Manfredotti, do you know when the kangaroo and koala referred to in annexure A to your affidavit came into store at Woolworths, Chullora?---I would not know the exact date but it would have been two or three weeks prior to the advertisement being on sale.

When did you make the notation of the bracket joined together for XW lines?---Either the Wednesday or the Thursday prior to 2 August.

What did you do with the document after you made that notation on it?---That particular document is held within a folder which then I gave to the price and fill team on the Friday preceding the advertised date so that they could tie up the other lines which were in that folder.

. . .

I think in your affidavit you say that the policy or procedure or whatever it was that existed was to the effect that the goods were not to be displayed prior to the Friday morning before the Monday of the sale commencing?---That is correct. That would be the earliest time. If I believed or the sales manager believed that a particular XW line could be put on show, it would be the earliest time it could go on show.

. . .

But so far as you were aware, it was permissible with an XW line for it to be put on display any time after the preceding Friday morning - it could be put on display?---The earliest time it could be put on display would be the Friday morning.

The price and fill team would have been aware of that as well?---Yes, they would have been. So they would have been handed this document, annexure A to your affidavit, with the XW documents referred to and they would have realised that it would have been permissible for them to have put those items on display at any time after the Friday morning?---Except that I had written Monday which meant that I did not want this particular line to be put on show until the Monday morning.

. . .

MR. GALBRAITH: Did you discuss the notation you had put on this sheet with anyone in the price and fill team after you put the endorsement on the document?---Yes, with the price and fill leader.

What did you say?---I normally say - after I have had a look at the sheets I normally then get the price and fill leader and discuss with her in what order I wish her to start, and then give her the sheets and explain to her that those particular lines are not to be tied up until Monday, even giving her a reason so that she understands why.

What did you say to the price and fill leader on this occasion?---Not knowing exactly what was said but I would have probably said to her that those particular lines, I do not want tied up until Monday because I feel that they are good value and price and the quantity is limited, so those particular lines would not be tied up until the Monday."

In my opinion, when this evidence is read as a whole, it establishes beyond any reasonable doubt that the "price and fill" team could take no step towards placing the subject item on display until Mr. Manfredotti gave the team the folder which included the buff; that his reference to "Monday" on the buff meant that he would have explained to the leader of the team that the subject item was not to be displayed until Monday 2 August 1982; and that the answer I have emphasised now relied upon by the defendant was immediately qualified by Mr. Manfredotti as no more than a generalisation which was not applicable in the events which happened here, having regard to the specific notation on the buff which excluded the subject item from display before 2 August 1982. In those circumstances, in my opinion, there is no reasonable foundation for the suggestion or hypothesis advanced by the defendant that the "price and fill" team may have acted to place the items on display without seeking the instructions of Mr. Manfredotti on the matter: the evidence is consistent only with those instructions having been given in the terms noted on the buff and it could not reasonably be suggested that the team could act to place on display any XW item without the information contained in the folder, including the information on the buff: no alternative source of such essential information could reasonably be suggested. Further, in my opinion, no reasonable hypothesis could be advanced to ground a suggestion that it was possible that Mr. Manfredotti's instructions were departed from: no reason or motive could reasonably be argued to exist to justify any wilful departure; and given the need to resort to the buff for the essential information contained in it, it could not reasonably be suggested, in my view, that the "price and fill" team might have overlooked Mr. Manfredotti's prominent notation "Monday" beside the display instructions.

The defendant then points to the failure of the prosecutor to call any member of the "price and fill" team. But, as Jones v. Dunkel, supra, decides, the failure to call that evidence does no more than to "lead rationally to the inference that (the) evidence would not help (the prosecutor's) case" (per Windeyer, J. at p.321). In other words, the failure to call that evidence does not necessarily or at all involve the rejection of Mr. Manfredotti's evidence: the evidence of members of the "price and fill" team almost two years after the event may reasonably be expected to have done no more than reveal the lack of any specific recollection of the fact now in issue. In the absence of any particular reason to recall the matter, and none has been suggested, the ordinary course of human affairs would lead one to expect that no member of the "price and fill" team would have any reason to remember the events in question. Thus, whilst such evidence would not advance the prosecution case, it would in no way detract from Mr. Manfredotti's evidence.

The situation then is that the prosecution case on the point is based largely on Mr. Manfredotti's note of his instruction. That note was a contemporary one; it was genuine; it is not, and could not be, suggested that it is not reliable evidence; and there is no material upon which any reasonable suggestion could be founded that the instruction was not carried into effect. There is, thus, in my opinion, no room for any reasonable hypothesis consistent with the innocence of the defendant on this aspect of the case. I am satisfied, beyond reasonable doubt, that the toy kangaroo was not displayed for sale before Monday, 2 August 1982. I so find for the purpose of the special case.

Subject to hearing the further submissions, if any, of the parties on any other matters which may arise, the case to be stated to the Full Court will be in the form of the draft in the schedule hereto.
THE SCHEDULE

DRAFT SPECIAL CASE

FACTS:

1. In 1981 and 1982 and at all material times the defendant ("Croner") was a company incorporated according to the laws of the State of Victoria and carried on business as, among other things, an importer and distributor of toys.

2. In or about April 1981 Croner established a toy manufacturing operation in New South Wales. That operation was known as Playmate Toys (which name was registered by Croner pursuant to the provisions of the Business Names Act, 1962). Among other things, Playmate Toys marketed its products under the name "Joy Toys".

3. During the course of 1981 Croner conducted negotiations with Advance Australia Marketing with a view to obtaining, among other things, non-exclusive product/corporate licensing in respect of soft toys sold under the name Joy Toys.
4. On an application made by Croner to Advance Australia Marketing and after correspondence, Croner was advised by letter from Advance Australia dated 19 October 1981 that Croner's application for non-exclusive products/corporate licensing in respect of soft toys manufactured by Playmate Toys and sold under the name Joy Toys was approved. A document accompanying that letter showed certain conditions which Advance Australia imposed on its approval including the statement:

"Usages relates (sic) to Australian made products only."

1. On or about 23 October 1981 Advance Australia Marketing forwarded to Croner an invoice in respect of royalties for non-exclusive product licensing. Among other things, that invoice contained the following:

"Period 1.10.81 to 30.9.82."

1. In or about March, 1982 the National Sales Director of Croner had discussions with a representative of one of that company's major customers, Woolworths Limited, in connection with the possible supply by Croner to Woolworths of plush toys to be supplied as part of a promotion which that company was having in July 1982. In particular, such toys were to include a koala and a kangaroo. The kangaroo was to be named "Matilda" after a kangaroo of the same name which by that time had become the mascot of the XII Commonwealth Games. It was also intended that the koala should form some kind of Commonwealth Games souvenir as well.

1. As a result of the discussions referred to in 6 above the following orders were placed with Croner by Woolworths:

(a) Order 88891470 on 4 May 1982 in respect of 3,576 "plush Matilda Kangaroos" to be supplied no earlier than 31 May 1982 and no later than 4 June 1982 with 1,800 to be delivered into Woolworths' warehouse Sydney, 1,224 in Brisbane, 96 in Fremantle, 96 in Adelaide and 360 in Melbourne;

(b) Order 88887468 dated 7 May 1982 in respect of 3588 "plush Koala Comm Games" to be delivered no earlier than 31 May 1982 and no later than 4 June 1982 with 1,800 to be delivered into Woolworths' warehouse in Sydney, 1,224 in Brisbane, 96 in Fremantle, 108 in Adelaide and 360 in Melbourne;

(c) Order 88887471 dated 12 May 1982 in respect of 1,836 "plush Matilda Kangaroo" to be delivered no earlier than 13 June 1982 and no later than 18 June 1982 with 528 to be delivered into Woolworths' warehouse in Sydney, 780 in Brisbane, 144 in Fremantle, 144 in Adelaide and 240 in Melbourne; and

(d) Order 88887469 dated 12 May 1982 in respect of 1,632 "plus Koala Comm Games" to be delivered no earlier than 13 June 1982 and no later than 18 June 1982 with 540 to be delivered into Woolworths' warehouse in Sydney, 624 in Brisbane, 132 in Fremantle, 144 in Adelaide, 192 in Melbourne.

1. Croner issued to Woolworths the following invoices in respect of the supply by Croner to Woolworths of the following:

ORDER CITY QUANTITY ITEM

88887468 Melbourne 360 Koala

88887468 Adelaide 108 Koala

88887468 Fremantle 96 Koala

88887468 Brisbane 1224 Koala

88887468 Sydney 1800 Koala

88887469 Brisbane 612 Koala

88887469 Sydney 540 Koala

88891470 Melbourne 360 Kangaroo

88891470 Sydney 1800 Kangaroo

88891470 Brisbane 1224 Kangaroo

88887471 Brisbane 780 Kangaroo

88887469 Adelaide 144 Koala

88891470 Adelaide 96 Kangaroo

88887469 Melbourne 192 Koala

88887471 Adelaide 144 Kangaroo

88887471 Melbourne 240 Kangaroo

88887469 Fremantle 132 Koala

88891470 Fremantle 96 Kangaroo

88887471 Fremantle 144 Kangaroo

88887497 Sydney 528 Kangaroo

The total goods delivered by Croner to Woolworths Stores were 5411 kangaroos and 5205 koalas.

1. All kangaroos supplied by Croner pursuant to the orders referred to in 7 above were received by Woolworths warehouses on 16, 17, 18, 21, 30 June 1982 and 1 July, 1982. All koalas supplied by Croner pursuant to the orders referred to in 7 above were received by Woolworths warehouses on 4, 7, 8, 15, 16, 17 and 21 June 1982. Woolworths stores advertised a sale of the toys so supplied to commence on 12 July 1982.

1. In each case in respect of each koala supplied by Croner to Woolworths there was fixed to such koala the following:

(a) A label reading "made in Australia";

(b) A label reading "Advance Australia" and bearing a representation of the flag of the Commonwealth, being an emblem of Advance Australia;

(c) A label reading "this item exceeds all Australian Safety Regulations including the Inflammability Act"; and

(d) A T-shirt upon which appeared the legend "XII Commonwealth Games Brisbane 1982".

1. In respect of each kangaroo supplied by Croner to Woolworths there was affixed to such kangaroo the following:

(a) A label reading "made in Australia";

(b) A label reading "Advance Australia" and bearing a representation of the flag of the Commonwealth, being an emblem of Advance Australia;

(c) A label reading "this item exceeds all Australian Safety Regulations including the Inflammability Act"; and

(d) Coloured ribbon to which was attached a XII Commonwealth Games medal.

12(a) On Monday, 2 August 1982, Pamela Elizabeth Ross of 10 Lomar Court, Frankston, Victoria, purchased from Woolworths (Victoria) Limited's Big W store at Frankston, Victoria, one of the toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to in 7 above.

(b) This toy koala had not been displayed and offered for sale by Woolworths' Frankston Big W store prior to Friday, 30 July 1982.

(c) This is the toy koala referred to in the summonses Nos. G199, G200 and G202 of 1983.

13(a) On 30 August 1982, Mervyn Reilly of 55 Waterview Street, Mona Vale, purchased from Woolworths Limited's Big W store at Chullora, New South Wales, one of the toy kangaroos which had been supplied by Croner to Woolworths pursuant to one or other of the orders referred to in 7 above.

(b) This toy kangaroo had not been displayed and offered for sale by Woolworths' Chullora Big W store prior to 2 August 1982.

(c) This is the toy kangaroo referred to in the summonses Nos. G201, G203 and G204 of 1983.

14(a) On 16 September 1982, Stephen James Carbery, an employee of the Trade Practices Commission, inspected at Woolworths Limited's Variety store at Campsie, New South Wales, a number of toy koalas which had bee supplied to Woolworths by Croner pursuant to one or other of the orders referred to in 7 above.

(b) These toy koalas had not been displayed and offered for sale by Woolworths Campsie Variety store prior to 5 July 1982.

(c) Included among these toy koalas were those referred to in the summonses Nos. G211, G212 and G213.

15(a) On 16 September 1982, the said Stephen James Carbery inspected at Woolworths Limited's Family Centre store at Bankstown Square, Bankstown, New South Wales, a number of toy koalas which had been supplied to Woolworths by Croner pursuant to one or other of the orders referred to in 7 above.

(b) These toy koalas had not been displayed and offered for sale by Woolworths' Bankstown Square Family Centre store prior to 28 June 1982.

(c) Included among these toy koalas were those referred to in the summonses Nos. G205, G206 and G210 of 1983.

16(a) On 17 September 1982, the said Stephen James Carbery inspected at Woolworths Limited's Variety store at Chatswood, New South Wales, a number of toy kangaroos which had been supplied to Woolworths Limited by Croner pursuant to one or other of the orders referred to in 7 above.

(b) These toy kangaroos had not been displayed or offered for sale by Woolworths' Chatswood Variety store prior to 12 July 1982.

(c) Included among these toy kangaroos were those referred to in the summonses Nos. G214, G215 and G216 of 1983.

17(a) On 17 September 1982, the said Stephen James Carbery purhcased from Woolworths Limited's Variety store at Chatswood, New South Wales, one of the toy koalas which had been suppllied to Woolworths by Croner pursuant to one or other of the orders referred to in 7 above.

(b) This toy koalas had not been displayed or offered for sale by Woolworths Chatswood Variety store prior to 12 July 1982.

(c) This is the toy koala referred to in the summonses Nos. G207, G208 and G209 of 1983.

1. After dispatching the toys to Woolworths as set forth in paragraph 9, Croner took no part at all in handling, displaying or selling the toys. Ross, Reilly and Carbery dealt only with employees of Woolworths: Croner had no servant or agent or other representative at any of the stores at which Ross, Reilly and Carbery purchsed toys.

1. Each of the toy koalas and kangaroos supplied by Croner to Woolworths Limited pursuant to the orders referred to in 7 above were made in the Republic of Korea and imported into Australia by Croner.

1. There is not in force in the Commonwealth of Australia nor was there in force in 1981 and/or 1982 and at any material time any statute known as Inflammability Act nor any State or Commonwealth legislation or regulation dealing with the flammability of such toys.

1. Pursuant to the administrative arrangements ordered by His Excellency the Governor-Genral and notified in Commonwealth Government Gazette No. S46 dated 11 March 1983, Part V of the Trade Practices Act is an enactment administered by the Minister of State for Home Affairs and Environment. The balance of the Act (including Part VI which includes s.79) is administered by the Attorney-General.

1. Commonwealth of Australia Gazette No. S47 of 11 March 1983 notified the appointment of Gareth John Evans to hold the office of Attorney-General and Barry Cohen to hold the office of Minister of STate for Home Affairs and Environment.

1. On 10 April 1983 Senator Evans signed a document published in the Commonwealth of Australia Gazette No. S129 of 9 April 1984 in the following terms:

"I, Gareth John Evans, Attorney-General of Australia, hereby authorise the Minister of State for Home Affairs and Environment to give consent for the purpose of paragraph 163(4)(b) of the Trade Practices Act, 1974 to the institution of proceedings in respect of offences against Part V of the Trade Practices Act, 1974."

1. On 26 July 1983, Mr. Cohen, as Minister of State for Home Affairs and Environment, signed a consent in relation to the subject prosecutions of Croner Trading Pty. Limited.

QUESTIONS

(1) Upon the facts stated herein, has the Attorney-General validly authorised Mr. Barry Cohen to sign the consent fo institute these proceedings under s.163(4)(b) of the Trade Practices Act, 1974?

(2) Did the defendant commit the offences charged in the informations at the times and places charged therein?

(3) Were the prosecutions for the offences or any of them barred at the date of the informations by s.21 of the Crimes Act, 1914?