Bou-Simon, Robert Anthony v Attorney-General of the Commonwealth of Australia

[1998] FCA 1097

FEDERAL COURT OF AUSTRALIA

EXTRADITION – proceedings in France for extradition for alleged offences under s 232(6) of the Corporations Law – application to this Court for relief relating to alleged misleading conduct by the DPP in connection with those proceedings – whether submission of allegedly misleading affidavit to the French court is an abuse of process – appropriate relief if there is found to be an abuse of process.

CRIMINAL LAW – application of s 65 of the Justices Act where incorrect statement in charge – whether reliance can be placed on s 15C of the Crimes Act to amend the charge – whether variation of charge by application of either of those provisions amounts to mere variance – whether application of either of those provisions requires recharging to constitute new proceedings for the purposes of limitation period – whether charge reformulated in reliance on either of these provisions constitutes institution of fresh proceedings under s 1316 of the Corporations Law.

Corporations Law ss 232(6), 232(6A), 1311(1), 1316, 1317FA(1)

Crimes Act 1914 (Cth) ss 15B, 15C

Justices Act 1902 (NSW) ss 21, 22, 23 56, 57, 65, 133

Judiciary Act 1903 (Cth) s 68

Jervis’ Act 11 & 12 Vic. c. 43 (1848)

Treaty on Extradition between the Government of Australia and the Government of the Republic of France (31 August 1988)
Extradition (Republic of France) Regulations

Regina v Horseferry Road Magistrates Court; Ex parte Bennett [1994] 1 AC 42, distinguished

Jones v Dunkel (1959) 101 CLR 298, cited
Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, distinguished

Ex parte Findlay; Re James (1953) 70 WN 115, considered

Ex parte Lovell; Re Buckley [1938] SR 153, considered

Connelly v DPP [1964] AC 1254, cited
National Companies and Securities Commission v Falk (1993) 10 ACSR 218, cited
Parmeter v Proctor (1949) 66 WN 48, considered
Ex parte Kirkpatrick (1916) 16 SR 541, cited
Ex parte Williams; Re Singleton (1928) 28 SR 616, considered

Carcosa Pty Ltd v Czerwaniwas agent for Department of Health (1997) 93 A Crim R 287, considered

Hedberg v Woodhall (1913) 15 CLR 531, cited
Reginav Justelius [1973] 1 NSWLR 471, considered

ROBERT ANTHONY BOU-SIMON v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA & ANOR

NG 581 of 1998

EMMETT J
SYDNEY
8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 581  of  1998

BETWEEN:

ROBERT ANTHONY BOU-SIMON
Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
Second Respondent

JUDGE:	EMMETT J
DATE:	8 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: On 1 December 1995 warrants were issued for the arrest of the applicant, Robert Anthony Bou-Simon (“Mr Bou-Simon”). The warrants were issued pursuant to informations laid on the same day alleging contravention of section 232(6) of the Corporations Law.  The warrants were not executed and in September 1997 proceedings were commenced for the extradition of Mr Bou-Simon to Australia from France.

In these proceedings, Mr Bou-Simon seeks orders that the second respondent, the Commonwealth Director of Public Prosecutions (“the DPP”), take steps to correct statements made in connection with the extradition proceedings which are alleged to have been misleading.  That conduct is said to have constituted an abuse of process such as would attract the intervention of this Court.  Mr Bou-Simon also seeks a stay of the criminal proceedings against him.

BACKGROUND

From before 15 September 1992 to February 1993, Mr Bou-Simon was an employee of Fay Richwhite Australia Limited (“FR Australia”).  It appears that, in the course of his duties as such employee, Mr Bou-Simon was required to provide services to Fay Richwhite Futures Australia Limited (“FR Futures”), a related company of FR Australia.  The precise terms of that arrangement are not in evidence before me.  However, as appears below, that arrangement apparently gave rise to a misconception on the part of those responsible for framing the charges against Mr Bou-Simon.

Section 232(6) of the Corporations Law provides as follows:

An officer or employee of a corporation must not, in relevant circumstances, make improper use of his or her position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or herself or for any person or to cause detriment to the corporation.

Section 232(6A) provides that the reference in section 232(6) to doing an act “in relevant circumstances” is a reference to doing the act anywhere if the corporation is a local corporation.  Both FR Australia and FR Futures are local corporations for that purpose.

Six separate warrants were issued alleging different but similar offences.  There is a question of duplicity involved in some of the warrants. I shall deal with that question below.  It is convenient to consider the issues raised in these proceedings by reference to one of the warrants which is described as “Warrant Computer System Number 3034307” (“the Warrant”).  The allegation made in the Warrant is that Mr Bou-Simon:

Did between about 15 September 1992 and about 29 September 1992 at Sydney in the State of New South Wales, being an employee of a Corporation, namely Fay Richwhite Futures Australia Limited (“the Corporation”) conduct trading without authorisation and thereby did make improper use of his position as such an employee to gain an advantage for himself, namely a financial advantage.

It is alleged that Mr Bou-Simon engaged in unauthorised trading on an account of FR Futures in the name of O and O Investments Pty Ltd (“O and O Investments”), a client of FR Futures, without the authority of FR Futures or of O and O Investments.  The “improper use” of position is particularised in the Warrant as follows:

1.BOU-SIMON conducted trading using account number 17110, an account of the Corporation, in the name of O & O Investments Pty Limited (“O & O Investments”) without the authority of Mark O’Brien, a Director of O & O Investments and without the authority of the Corporation.

2.The unauthorised trading using account number 17110 consisted of four trades ordered by BOU-SIMON on an Order Sheet dated 15 September 1992.  The four unauthorised trades were:

(i)sell 100 short sterling (“SS”) interest rate futures for 89.66.

(ii)buy 100 SS interest rate futures for 89.56.

(iii)sell 100 SS interest rate futures for 89.51, of which 30 contracts were sold at 89.51 and the remainder cancelled.

(iv)buy 30 SS interest rate futures for 89.48.

The trades referred to in (i), (ii) and (iv) were executed at the nominated prices.

3.BOU-SIMON without authorisation from O & O Investments or the Corporation, with the assistance of SUSAN MARGARET BAHR (“BAHR”) posted the 4 unauthorised trades referred to in Particular 2 above to account number 17110 in the name of O & O Investments.

4.BOU-SIMON then acquiesced in the subsequent transfer of the 4 unauthorised trades by BAHR from account number 17110 in the name of O & O Investments to account number 17121 which was an account of the Corporation established without authorisation.

5.The 4 unauthorised trades were eventually settled in account number 17121 on 29 September 1992.  The settlement resulted in a profit of G.B.P.13,625.00.

At the same time as informations were laid against Mr Bou-Simon, informations were also laid against one Susan Margaret Bahr (“Ms Bahr”) asserting that Ms Bahr aided and abetted the alleged offences by Mr Bou-Simon under section 232(6). The informations against Ms Bahr set out verbatim the allegations against Mr Bou-Simon as contained in the warrants for his arrest.

Mr Bou-Simon has resided in Paris, France since May 1994 and has been employed since December 1994 as an interest rates/swaps broker.  Pursuant to an extradition application which was made to the French authorities at the behest of the DPP, Mr Bou-Simon was arrested at his home in Paris on 29 November 1997.  He was taken before a magistrate in chambers and was informed then of the request for his extradition. 

Between 29 November and 17 December 1997, Mr Bou-Simon was remanded in custody in Paris.  On 17 December 1997, extradition proceedings commenced before the Court of Criminal Appeal of the Appeal Court of Paris (“the French Court”).  Mr Bou-Simon applied for bail but was unsuccessful and the matter was adjourned to 14 January 1998.  On that day the matter was adjourned until 21 January 1998.  On that day Mr Bou-Simon was granted bail and he was released on 22 January 1998.

The application for extradition of Mr Bou-Simon was made pursuant to the Treaty on Extradition between the Government of Australia and the Government of the Republic of France of 31 August 1988 which came into force on 23 November 1989.  The Treaty relevantly provides as follows:

Article 1
Obligation to Extradite

1.        Each Contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, any persons who are wanted for prosecution… in the Requesting State for an extraditable offence.

………………………………

Article 3
Exceptions to extradition.

1.Extradition shall not be granted in any of the following circumstances:

………………………………

(e)where the person whose surrender is sought has, according to the law of either Contracting Party, become immune from prosecution or punishment by reason of lapse of time.

………………………………

Article 6

Extradition Procedure and Required Documents.

1.A request for extradition shall be made in writing and shall be presented through diplomatic channel.

2.A request for extradition shall be accompanied:

(a)if the person is accused, by the original or a certified copy of the warrant for arrest or any other instrument having the same effect issued in accordance with the procedure laid down in the law of the Requesting State.

………………………………

(e)in all cases by:

-a statement of the acts or omissions alleged in respect of each offence for which extradition is requested, indicating in particular the time and place at which each offence was committed;

-references to, and the text of, the relevant legal provisions, and in particular those relating to limitation of proceedings and to the sentence that may be imposed;

………………………………

Article 7
Authentication of Supporting Documents

1.        The documents that, in accordance with Article 6, accompany a request for extradition shall be admitted in evidence in the Requested State, if duly authenticated.

2.        A document is duly authenticated for the purposes of this Treaty if it purports to be signed or certified by a Judge, Magistrate or officer in or of the Requesting State and to bear the official seal of the Requesting State or of a Minister of State, Ministry or officer of the Government of that State…

Article 8

Additional information

1.        If the Requested State considers that the information furnished in support of the request for extradition is not sufficient to fulfil the requirements of its law with respect to extradition, that State may request that additional information be furnished within such time as it specifies.

………………………………

Article 13

Rule of Speciality

A person extradited under this Treaty shall not be detained or tried or be subjected to any other restriction of liberty in the territory of the Requesting State for any offence committed before extradition other than the offence for which extradition was granted [subject to exceptions not presently relevant].

Australia’s request for extradition of Mr Bou-Simon was accompanied by an affidavit of law of Ian Donald Craigie sworn 5 September 1997 and an affidavit of facts of Perry Hume sworn 11 September 1997.  Mr Craigie is a legal officer employed in the Sydney office of the DPP.  Mr Hume is a solicitor employed by the then Australian Securities Commission.

Mr Craigie’s affidavit set out relevant provisions of the Corporations Law including section 232(6) and section 1311(1). The latter section provides that a person who does an act or thing that the person is forbidden to do by or under a provision of the Corporations Law is guilty of an offence.

After referring to section 232(6A), the affidavit went on to say:

13.In the present case the relevant corporation, Fay Richwhite Futures Australia Limited, was a company incorporated in New South Wales, and was accordingly a local corporation.  All relevant acts took place in New South Wales.  It follows that the conduct alleged against [Mr Bou-Simon] falls within the scope of the Corporations Law of New South Wales.

That statement, for the reasons indicated above, now appears to be incorrect in so far as it refers to FR Futures as the relevant corporation.  Mr Bou-Simon was not an employee of FR Futures.  It may be arguable that he was an officer of FR Futures although that has not been alleged.

On 2 February 1998 the hearing of the charges against Ms Bahr commenced in the Local Court at Sydney before Ms L. Horler, magistrate. Written submissions were made to Ms Horler on behalf of the DPP by way of opening.  Written submissions were subsequently submitted on behalf of Ms Bahr.  The submissions on behalf of Ms Bahr sought dismissal of the charges, relevantly, on grounds of duplicity.  The contention was that the charges before the Court were patently duplicitous because, in relation to the principal offence (by Mr Bou-Simon) they alleged three “species” of acts occurring on different days, for different amounts, and in respect of different accounts.  It was contended that each “species” was capable on its own of constituting commission of the principal offence, namely:

• unauthorised trading;

• posting the results of unauthorised trading;

• settling unauthorised trades.

It was said that that problem was compounded by the fact that, in some cases, there was more than one trade and more than one posting on different dates.  The problem was further compounded, so the submission went, because Ms Bahr was alleged to have “aided and abetted” only some parts of the conduct alleged against Mr Bou-Simon.

On 9 February 1998, Ms Horler found that the charges were duplicitous but, rather than dismiss the charges, allowed the prosecution to elect to confine each of the charges to one offence only. Following that decision, the prosecution reformulated the charges so as to reflect such an election. Each reformulated charge repeated the assertion that Mr Bou-Simon committed contraventions of section 232(6) of the Corporations Law in that he made improper use of his position as an employee of FR Futures to gain an advantage for himself.

In order to prove that Mr Bou-Simon was an employee of FR Futures, the prosecution tendered a letter of 14 February 1991 from FR Australia to Mr Bou-Simon confirming agreement as to salary and other terms of employment together with an undated deed of confidentiality between FR Australia and Mr Bou-Simon.  Counsel for Ms Bahr then moved for the dismissal of the charges on the basis that the prosecution had failed to prove the first element of the offences charged, namely that Mr Bou-Simon was an employee of FR Futures.  Ms Horler found that Mr Bou-Simon was, at the relevant times, an employee of FR Australia.

Counsel for the prosecution then applied to amend the charges pursuant to section 15C of the Crimes Act 1914 (Cth). Section 15C provides as follows:

(1)At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.

(2)If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.

(3)The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made to injustice to the defendant.

Counsel for Ms Bahr submitted that section 15C could not be “used to circumscribe the limitation period”.  Ms Horler accepted that submission as being “definitely right”.  Ms Horler said that making an amendment by substituting FR Australia for FR Futures would be “adding a fresh element to the informations, and therefore it is statute barred”.  Her Worship considered that to accede to the application to amend would be “an abuse of process and such an unfairness to [to Ms Bahr] that it should not be allowed”.  Those observations were made on 11 February 1998 in the course of argument.  Mrs Horler then dismissed the charges but no reasons for dismissal, beyond those expressed in the course of argument, were given by Ms Horler.

On 18 February 1998, the actual issue of extradition was examined and debated before the French Court.  The evidence before me indicates that, on the hearing of an application for extradition before the French Court, the persons present are the judges, lawyers for the accused and representatives of the French authorities.  There is no formal representation of the foreign state, in this case Australia.  Mr Bou-Simon was present at the hearing on 18 February 1998 and was represented by M. Jean-Yves le Borgne, a very experienced advocate before the French Court. 

At the hearing, Mr Bou-Simon opposed the request for extradition on the basis of issues which his lawyer contended would be available to him by way of defence to the charges.  The issues raised on behalf of Mr Bou-Simon were as follows:

(a)Four of the six charges brought by the Australian authorities would, under French law, be considered null and void as the alleged acts took place more than three years before the first charges were pressed by the authorities and therefore lie outside the statute of limitations.

(b)The charges brought by the Australian authorities involve infractions which are not recognised as such by French law and therefore such charges cannot be the basis for granting an extradition from France to any foreign country.

(c)The explanations given by the Australian authorities themselves concerning changes in legislation “regarding the abuse of position for personal gain” do not clearly assert that the events leading to the charges constitute an infraction under Australian law.

The French Court decided to ask the Australian authorities for further information and details concerning the issues brought to light by Mr Bou-Simon’s contentions.  Subsequently, on 26 February 1998, the Australian authorities were requested, through diplomatic channels, to provide the following information:

·that the acts committed between 15 September 1992 and 22 October 1992 are not excluded from prosecution by a limitation period under Australian law, and indicating the date on which the investigation was commenced, including whether the acts relevant to the proceedings or search for evidence were carried out before the issuing of the arrest warrants (if so, a list of these acts is to be provided);

·the exact and detailed content of the acts for which … Bou-Simon is accused; in particular which acts are said to have gained for him a person [sic] financial advantage;

·whether the companies legislation, as amended on 1 February 1993 should be considered, according to Australian law, as being more lenient or more strict.

In response to that request, a supplementary affidavit was sworn by Mr Craigie on 30 April 1998 (“the supplementary affidavit”).  The supplementary affidavit contained, relevantly, the following material:

The limitation period

2.The acts committed between 15 September 1992 and 22 October 1992 are not excluded from prosecution by a limitation period under Australian law.

………………………………

4.Proceedings for an offence may be instituted under Australian law by the laying of a charge in respect of that offence.  Charges were laid in respect of each of the offences for which Bou-Simon’s extradition is sought on 1 December 1995, that is, within 5 years of the commission of the earliest act by Bou-Simon alleged to constitute the offences.

5.Under Australian law, Bou-Simon may be prosecuted for each of those offences even though the acts alleged to constitute some or all of those offences may be more than 5 years old at the time the prosecution is heard by the trial court.

………………………………

Acts alleged in relation to each charge laid against Bou-Simon

………………………………

32.Bou-Simon was employed at all relevant times as the manager of Overseas Futures ..… of [FR Futures]…

33.Bou-Simon was actually employed to carry out duties with [FR Futures] by [FR Australia] which was the immediate parent entity of [FR Futures].  The warrants for Bou-Simon’s arrest refer to Bou-Simon being an employee of [FR Futures]. This is an error in particulars which may be amended before trial under section 15C of the Crimes Act 1914 which applies to the present proceedings… Also Section 65 of the Justices Act… applies to the present proceedings.  Under this enactment no objection is allowed to any alleged defect in substance or form in the information setting out the charge and to any variance between the information and the evidence adduced in support of the charge at the hearing….  This error in particulars does not, under Australian law, invalidate the warrants issued for Bou-Simon’s arrest.

………………………………

1993 amendments to the Corporations Law

37.The 1993 amendments to section 232(6) of the Corporations Law changed the mental element which must be proved in order to establish the commission of a criminal offence. Prior to 1993 it was enough for the prosecution to prove that a person contravened the section. In respect of conduct that occurs after 1 February 1993, a person is only criminally liable for a contravention of section 232(6) if the person contravened that section with a dishonest intent (as set out in section 1317FA(1)).

38.A person who contravenes section 232(6), but not with a dishonest intent, is still civilly liable to substantial penalties, including a pecuniary penalty of up to $200,000.

39.The purpose and effect of the 1993 amendments was not to make the Corporations Law more lenient but, rather, to ensure that criminal liability for contraventions of certain provisions (such as section 232(6)) only applies where there is a dishonest intent.

40.It is alleged in the present case that Bou-Simon acted with a dishonest intent and, accordingly, if his relevant conduct had occurred after 1 February 1993 Bou-Simon would still be criminally liable for that conduct.

………………………………

Prosecution of Susan Bahr

42.Earlier this year, in the Downing Centre Local Court in Sydney, Susan Bahr was prosecuted for being knowingly concerned in the offences allegedly committed by Bou-Simon.  On 11 February 1998, at a very late stage in the proceedings after the prosecution had completed its evidence, the magistrate hearing the charges against Bahr was made aware of the mistake referred to in paragraph 33 above relating to which company employed Bou-Simon.  It was only then that the prosecution realised that the mistake had occurred.  The magistrate refused an application by the prosecution to amend the charges and subsequently dismissed the charges.  For reasons which are not relevant to the present matter, the DPP decided not to appeal against the decision of the magistrate.

On 27 May 1998, Mr Bou-Simon again attended before the French Court for the purposes of seeking a variation to the conditions of his bail.  On that occasion, Mr Bou-Simon was informed for the first time that the French Court had been provided with the supplementary affidavit and he obtained a copy of the supplementary affidavit from a clerk of the French Court.  The extradition proceedings were adjourned to 24 June 1998.

These proceedings in the Federal Court were commenced on 16 June 1998.  Initially the only respondent was the Attorney-General of the Commonwealth (“the AG”).  It soon became apparent that the DPP was a necessary party and on 19 June 1998 the application was amended to join the DPP as a respondent.  On 22 June 1998, I granted interlocutory relief by ordering that the DPP write to Mr Bou-Simon’s solicitors confirming that the amendment referred to in paragraph 42 of the supplementary affidavit was to change the name of the company alleged to have been the employer of Mr Bou-Simon from FR Futures to FR Australia, that one of the grounds upon which the magistrate refused leave to amend was that to change the name would be to add a fresh “element” to the informations and that this could not be done because the limitation period had expired.

When the extradition request came before the French Court on 24 June 1998, there were present the three judges constituting the Court, a lawyer appearing for the French authorities, Mr Bou-Simon and his lawyer and various court officials.  Mr Bou-Simon’s lawyer argued that extradition should not be granted and opened by referring to the Bahr case.  He explained that Ms Bahr was an accomplice of Mr Bou-Simon and that her case had successfully been defended on the basis that the name of the relevant employer could not be changed.  He informed the French Court that the judgment in the Bahr case had not been the subject of appeal.  He said that Ms Bahr was charged with the same offences as Mr Bou-Simon and that, given that those charges were not successful against her, they could also not be maintained against Mr Bou-Simon for the same reasons.

Mr Bou-Simon’s lawyer then went on to say that those facts were not made clear in the documents which were submitted to the French authorities and that that had led to Mr Bou-Simon commencing these proceedings in the Federal Court.  Reference was made to the interlocutory order which I made although Mr Bou-Simon’s lawyer stressed that that was not a judgment of this Court.  A copy of the order was shown to the lawyer for the French authorities who said that there had not been enough time to prepare a translation.

The lawyer for the French authorities argued that the documents as provided by the Australian authorities showed a clear case for extradition and that all the necessary requirements were present.  Furthermore, it was contended that the material contained in the supplementary affidavit explained and answered the arguments put forward by Mr Bou-Simon’s lawyer.  The Court said that the matter would be stood over and that the earliest date for hearing would be 16 September 1998 because of the Summer recess.  The lawyer for the French authorities questioned the necessity for standing the matter over, arguing that nothing new, relevant to the case, would occur in the meantime.  Nevertheless, the French Court agreed to stand the matter over until 16 September 1998.

It is apparent from what I have said above that, on the hearing of the extradition application before the French Court, Mr Bou-Simon is entitled to be represented by legal advisors.  He has been and will be given ample opportunity to be heard and to make such submissions as he is advised in opposition to the extradition application.  I am satisfied that there is no likelihood of procedural unfairness to Mr Bou-Simon in relation to the hearing of the application and that if, as alleged by Mr Bou-Simon, the material furnished by means of the supplementary affidavit is misleading or incomplete, Mr Bou-Simon has had and will have ample opportunity to correct any misleading impression which it may have created.

It is against that background that this Court is called upon to consider the relief sought in the proceedings by Mr Bou-Simon.

THE ISSUES

In his amended application, filed on 19 June 1998, Mr Bou-Simon sought the following substantive relief:

1. A declaration that the supplementary affidavit is misleading.

1. A declaration that the provision by the DPP to the AG of the supplementary affidavit for submission to the French Court is an abuse of process.

1. An order that the DPP be required to provide to the AG such affidavit correcting the supplementary affidavit as the Court shall determine.

1. An order that the AG submit or cause to be submitted to the French Court the affidavit provided in accordance with (3) above duly authenticated in accordance with the Extradition (Republic of France) Regulations.

In the course of the final hearing before me, I granted to Mr Bou-Simon leave to amend the application further to seek the following additional relief:

1. Judicial review of the decision of the DPP to prosecute Mr Bou-Simon.

1. An order prohibiting or restraining the DPP from proceeding on the informations laid in respect of Mr Bou-Simon.

1. An order restraining the DPP from proceeding with the extradition of Mr Bou-Simon.

The issues raised in the proceedings can be summarised as follows:

(a)Was the supplementary affidavit misleading.

(b)If so, was the submission of the affidavit to the French Court an abuse of process such as justifies the intervention of the Court to require the correction by the DPP and the AG of any misleading impression which might have been created by the supplementary affidavit.

(c)Was the offence involving FR Australia a different offence from the offence alleged in the information involving FR Futures. If it is, the DPP accepts that it cannot now be prosecuted because it would be barred by the operation of section 1316 of the Corporations Law.

(d)If not, would amendment under section 15C of the Crimes Act or reliance on section 65(1) of the Justices Act1902 (NSW) in any event require recharging of Mr Bou-Simon so as to commence fresh proceedings. If so, such proceedings could not continue because they would be out of time by reason of section 1316 of the Corporations Law.

INTERVENTION IN THE EXTRADITION PROCEEDINGS

Complaints in respect of the supplementary affidavit

Mr Bou-Simon contended that the supplementary affidavit was misleading in a number of respects as follows:

1. It does not disclose to the French Court that Mr Craigie was not completely independent but had the conduct and carriage of the prosecution against Ms Bahr.

1. The charges against Ms Bahr were relevantly identical to the charges against Mr Bou-Simon.  It is the DPP’s intention to amend so as to proceed against Mr Bou-Simon in respect of offences which reflect the name of the correct employer.  Ms Horler found that the required amendment could not be made in respect of the prosecution of Ms Bahr as a consequence of the expiration of the limitation period.  Accordingly, in asserting that the acts alleged against Mr Bou-Simon are not excluded from prosecution by a limitation period, paragraphs 2 and 5 of the supplementary affidavit are misleading.

1. Paragraph 40 of the supplementary affidavit asserts that the prosecution alleges that Mr Bou-Simon acted with a “dishonest intent” whereas no such allegation is made in the charge and, if that is the DPP’s case, the absence of such an allegation in the charge demonstrates that the charge is bad for failing to allege that element.

1. Ms Bahr was prosecuted for having “aided and abetted” and not for “being knowingly concerned” as asserted in paragraph 42 of the supplementary affidavit.

1. There is no disclosure of the reasons why the DPP did not appeal against Ms Horler’s decision in the Bahr case.

1. Paragraph 37 of the supplementary affidavit wrongly asserts that section 1317FA of the Corporations Law applies to conduct that occurs “after” 1 February 1993 because the amendment came into effect on that day. If the DPP contends that the charges were not duplicitous, then section 1317FA of the Corporations Law applies to one of the charges which is incurably bad because it fails to disclose essential legal elements.  The supplementary affidavit fails to disclose that Ms Horler, in the prosecution of Ms Bahr, determined that the charges were duplicitous.  If the DPP does not elect in relation to the duplicitous charges, they must be dismissed.  On the other hand, if the DPP does elect, there will be a breach of Article 13 of the Treaty because Mr Bou-Simon will then be prosecuted for an offence other than the offence for which extradition is being sought.

I shall deal with those several questions separately.

1. Mr Craigie’s Position

Mr Bou-Simon contended that, when combined with his failure to disclose Ms Horler’s reasons for dismissing Ms Bahr’s prosecution, Mr Craigie’s failure to disclose that he had the conduct and carriage of the prosecution against Ms Bahr was significant. It was said that an inference should be drawn, from Mr Craigie’s failure to disclose his involvement in the prosecution of Ms Bahr and the outcome of that prosecution, that he was concerned that the French Court might not accept his evidence as having come from an independent expert.

Mr Bou-Simon contended that that conclusion is supported by the terms of a further supplementary affidavit of Mr Craigie sworn on 15 June 1998.  That affidavit has not been tendered in the proceedings in the French Court.  However, Mr Bou-Simon contended that it is also misleading and relied on that fact to support his contention that the conduct of Mr Craigie in relation to the supplementary affidavit was not a matter of mere inadvertence but was deliberate.  Mr Bou-Simon contended that, while it is unnecessary to satisfy the Court that the DPP’s conduct was deliberate in order to obtain the relief sought, if that contention is wrong, the Court should conclude that the DPP, through Mr Craigie, intended to mislead the French Court.

It was said that the French Court would be entitled to take Mr Craigie’s omissions into account when assessing the veracity of his evidence in relation to Australian law.  The argument was that if full disclosure were made, the French Court may not accept Mr Craigie’s statement as to general principles of Australian law. 

The possibility of such a submission may make it undesirable for a lawyer involved in a prosecution to give expert evidence as to Australian law in connection with an extradition application made in aid of that prosecution.  I would be disposed to think that it is an undesirable practice, although in this case I do not consider it necessary to express a decided view on the question.  In any event, Mr Bou-Simon is able to put all of those submissions to the French Court.

1. Reference to the Bahr Proceedings

The submission on behalf of Mr Bou-Simon began with the proposition that any magistrate called upon to make a ruling in relation to the charges against Mr Bou-Simon would, “as a matter of comity”, regard the decision of Ms Horler in relation to Ms Bahr as persuasive.  That proposition may or may not be correct.  However, I do not consider it to be relevant.  As a matter of principle, a magistrate should not, simply as a matter of comity, follow a decision of a fellow magistrate if it is demonstrated that that decision is wrong.  Whether it is wrong is a question which would depend upon the effect of statute as interpreted by superior courts as well as general principles of the common law.  If the rulings of Ms Horler were wrong, and a magistrate dealing with the charges against Mr Bou-Simon followed them, the decision of the second magistrate would be overturned on appeal.

The function and purpose of an affidavit of law in support of an extradition application is to inform the foreign court of the general principles of law in force in Australia both under statute and under the common law.  It would not be incumbent upon any deponent, in performing that function or with that purpose in mind, to refer to specific decisions which have no binding authority, particularly if the view is reasonably tenable that such decisions are wrong.  If the statements of general principle contained in Mr Craigie’s original affidavit and in the supplementary affidavit are correct, I do not consider that there is any reason why the existence of an inconsistent decision which is wrong, albeit based on identical facts, need be drawn to the attention of the foreign court.

Mr Bou-Simon’s complaint, however, was that, having decided to make reference to the Bahr proceedings in paragraph 42, it was incumbent upon Mr Craigie to give a full and accurate account of those proceedings.  Paragraph 42 of the supplementary affidavit is capable of creating a misleading impression as to why Ms Horler had dismissed the proceedings against Ms Bahr.  It fails to disclose that amendment was sought but refused.  That ruling, of course, if it is correct, would lead to dismissal of the charges against Mr Bou-Simon because, it would be argued, amendment is necessary and should be refused by the court which hears those charges.

Mr Bou-Simon has been afforded the opportunity to place before the French Court full particulars concerning the prosecution of Ms Bahr and the outcome of that prosecution, including the reasons for that outcome.  Further, it would be open to Mr Bou-Simon to adduce expert evidence of Australian law contradicting the statements of general principle made by Mr Craigie.

1. Dishonest Intent
   The request from the French Court sought information concerning the amendment to the Corporations Law which took effect on 1 February 1993.  Paragraphs 37 to 40 of the supplementary affidavit responded to that enquiry.  In one of the warrants, conduct which ended on 1 February 1993 was particularised.  The particulars in the other five warrants specify conduct which was complete prior to 1 February 1993.  Even if failure to allege a “dishonest intent” in the one warrant alleging conduct on 1 February 1993 were fatal as to any offence charged in that warrant, the other offences, which did not involve conduct on 1 February 1993, would still stand.  None of the other warrants would be affected.  Thus, the only offence which might involve the element of “dishonest intent” could be abandoned without prejudice to the other charges which involve no allegation of conduct on or after 1 February 1993.

1. Knowingly Concerned

The complaint that Ms Bahr was prosecuted for aiding and abetting offences by Mr Bou-Simon whereas the supplementary affidavit said that she was prosecuted for being knowingly concerned in the offences does not appear to me to be material.  The relevance of the proceedings involving Ms Bahr is that the alleged offences by Mr Bou-Simon were an essential element in the prosecution of Ms Bahr. The material particulars of the charges against Ms Bahr were in fact relevantly identical to the charges against Mr Bou-Simon.  I do not consider that it is material whether she was prosecuted for aiding and abetting rather than being knowingly concerned in Mr Bou-Simon’s alleged offences.

1. No Appeal

The reasons why the DPP did not appeal against Ms Horler’s decision in the Bahr case have no bearing on the extradition matter.  The statement in paragraph 2 that the DPP had decided not to appeal against the decision is probably itself irrelevant.  It may serve, however, as a recognition by the DPP that the result in the Bahr case was not necessarily consistent with the statements of general legal principle made in paragraph 33 of the supplementary affidavit.  The supplementary affidavit does not state that amendment of the charges against Ms Bahr was not permitted because of the expiry of the limitation period.  However, the reference to a decision not to appeal indicates at least that the DPP was dissatisfied with that decision.  I do not consider that the matter is material.

1. Duplicity

The DPP does not, notwithstanding the ruling made by Ms Horler in the Bahr prosecution, accept that any duplicity arises from the pleading of the charges against Mr Bou-Simon in their present form.  Mr Bou-Simon, on the other hand, maintains that Ms Horler was correct and that an Australian court, on the hearing of the charges against Mr Bou-Simon, would find them duplicitous.

It is common ground, however, that the court would be bound to allow the DPP to make an election as to the charge in each information upon which the prosecution was to proceed.  That is to say, the informant would be permitted to elect which part of the totality of improper conduct which has been particularised in each relevant charge should be the subject of the charge to be prosecuted.  Mr Bou-Simon contended, however, that, since certain of the warrants and the informations upon which they are based allege a multiplicity of offences, prosecution of Mr Bou-Simon for only one of those offences would be a contravention of Article 13 of the Treaty because it would involve trying him for offences other than the offences for which extradition was granted.

Even if the informations are duplicitous, because more than one offence is particularised in each information, by definition the information as laid contains each of those offences, albeit together with the other offences.  If the DPP elects to proceed simply on one of those offences, that offence is nevertheless the subject of an information laid on 1 December 1993.  Accordingly, if extradition is granted that offence would be one of those for which extradition will have been granted.  I do not consider that it would be a contravention of Article 13 for an accused person to be prosecuted in respect of only one of several offences for which the accused was extradited. 

Accordingly, I do not consider that the failure to state in the supplementary affidavit that certain of the warrants are duplicitous, assuming that to be correct contrary to the DPP’s contentions, renders the supplementary affidavit misleading.  In any event, it has been possible and will be possible for Mr Bou-Simon to inform the French Court of his contentions as to the duplicitous nature of the warrants thereby enabling the French Court to form its own judgment on that question, if it be relevant to the question of extradition.

Abuse of process

Mr Bou-Simon contended that the concept of “abuse of process” should not be confined to cases where the prosecution has misused the process of a court.  Reliance was placed on Regina v Horseferry Road Magistrates Court; Ex parte Bennett [1994] 1 AC 42 (“Bennett’s Case”).  In Bennett’s Case an accused person was brought to the United Kingdom by subterfuge and complicity between the English police and South African police.  The extradition treaty which apparently existed between the United Kingdom and South Africa was ignored.

Lord Griffiths observed that the judiciary should accept responsibility for the maintenance of the rule of law, which involves a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law (at 61).  The House of Lords expressed its disapproval of what was held to be “a serious abuse of power” by refusing to act on that serious abuse of power and preventing prosecution which could only proceed by reason of the presence of the apprehended person in the United Kingdom.  Lord Bridge observed (at 67) that it would be insular and unacceptable for the Court to turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction.  His Lordship held that, since the prosecution in question could never have been brought if the defendant had not been illegally abducted, the whole proceeding was tainted and constituted an abuse of the criminal jurisdiction in general.  The relief granted was a stay of the criminal proceedings.

Some analogy can be drawn between the circumstances of Bennett’s Case and the circumstances which are alleged in the present case. If an accused person were extradited to Australia for the purposes of prosecution as a result, for example, of fraudulent deception of the extraditing State, that might well be a reason why an Australian court would not permit the prosecution to proceed. As Lord Griffiths observed (at 61), extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country. It is for that reason that evidence has to be produced to show a prima facie case against the accused person.  Further, Article 13 protects the accused from being tried for any crime other than that for which he was extradited. 

Lord Griffiths observed that if a practice developed in which the police or prosecuting authorities of one country ignored extradition procedures and secured the return of an accused person by a mere request to police colleagues in another, the extradition procedures would be flouted, thereby depriving the accused of the safeguard built in to the extradition process for his or her benefit.  If a requesting country, in purported pursuance of the extradition procedures, in effect bypassed them by engaging in, say, fraudulent deception, the consequences could be the same.

One point of distinction, however, between the present case and Bennett’sCase is that in Bennett’sCase the accused person was already within the jurisdiction of the United Kingdom.  If Mr Bou-Simon had been extradited to Australia in circumstances where there had been a fraud on the extradition process, the appropriate relief would be a stay of the prosecution.  However, in the present case, Mr Bou-Simon has sought the Court’s intervention at an earlier point, namely where there is alleged to be a threatened abuse of or fraud on the extradition process.  The question is whether, in those circumstances, it would be appropriate to intervene by restraining the abusive or fraudulent conduct before the damage is done by the extradition of an accused person.

If bad faith were established, an Australian Court may well intervene in relation to the prosecution in Australia, for the reasons outlined by the House of Lords in Bennett’sCase.  That intervention, however, would normally be by way of stay of the prosecution proceedings. That in itself, may, as a practical matter, have an effect on the extradition proceedings.  If the fact of such an order were communicated to the French Court, for example, that may result in dismissal of the application for extradition.  In an appropriate case an Australian court may order a stay subject to conditions designed to ensure that the DPP takes steps to rectify any conduct which was a fraud on or abuse of the extradition process.  For example, the stay might be subject to a provision that if the conduct were rectified, the stay would be lifted.

Mr Bou-Simon has alleged bad faith on the part of Mr Craigie in making the supplementary affidavit.  However, I am not persuaded that Mr Craigie has been shown to be lacking in good faith in relation to the application to the French Court.  Mr Bou-Simon drew attention to the fact that Mr Craigie did not give evidence before me to explain his conduct or to answer the complaints made in respect of the supplementary affidavit.  That of itself cannot be evidence of bad faith.  If inferences of bad faith were available to be drawn from the evidence before me, those inferences might be the more easily drawn in circumstances where Mr Craigie declined to give evidence (Jones v Dunkel (1959) 101 CLR 298 at 308).

While some criticism might be directed at Mr Craigie in relation to the matters complained of by Mr Bou-Simon, I do not consider that they give rise to an inference of bad faith.  They may demonstrate possible errors of judgment as to what should or should not have been provided to the French authorities conducting the extradition application before the French Court.  Ultimately, however, I am not persuaded that there is a risk that there has been an abuse of or fraud on the extradition process such as would justify intervention by this Court.

In support of the contention that the Court should intervene at this stage, Mr Bou-Simon drew analogy with search warrant cases.  In particular, reliance was placed on the decision of the Court in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542. The majority in that case held that there is no general, in the sense of abstract, duty of disclosure imposed upon an applicant for a search warrant although it may be that a warrant could be set aside where there has been “fraud or misrepresentation” (at 555).  Questions may arise as to what conduct would be adequate to justify judicial interference in the administrative procedures involved in the issue of a search warrant.  For example, a question arises as to whether a mere innocent misrepresentation would be sufficient to result in setting aside a search warrant.

However, the search warrant cases, while they may be analogous to some extent, must be distinguished from the circumstances which have arisen in this case.  Where a search warrant is obtained as a result of fraud or misrepresentation (whatever those terms may encompass), the remedy is to set aside the search warrant.  There is no case to date whereby the Court has intervened to restrain a threatened fraud on or misrepresentation to an issuing officer.  As a practical matter, of course, that is no doubt because the aggrieved person would have no knowledge of the threatened fraud misrepresentation.  The aggrieved person would normally only know of the application for a search warrant when an attempt is made to execute it.

That circumstance highlights the real distinction between the search warrant cases and the present circumstances.  The decision to extradite is the equivalent, if the analogy ran, of the decision to issue a search warrant.  An application for a search warrant is made ex parte without any notice to the person affected by the search warrant.  However, as I have indicated above, the extradition proceedings in France are not conducted ex parte.  They are conducted only after notice to the accused person and no order will be made until after the accused person has had the opportunity of being heard and advancing such matters as he or she is advised in opposition to the order for extradition.

So long as an accused person is given ample opportunity by a foreign court to be heard and to refute any contentions advanced or statements made in support of extradition, the decision on extradition should be a matter for the foreign court.  It would not be appropriate for an Australian Court to intervene in a foreign extradition process.  It would not be appropriate for this Court to intervene to supervise the material submitted on behalf of an Australian prosecuting authority to a foreign court.  Thus, this Court should not supervise the DPP in the contentions which might be advanced and the evidence which might be adduced in support of the extradition application to the French Court.

The position may be different if extradition were sought in a country where there is some doubt as to whether procedural fairness will be afforded to an accused person.  One might assume that Australia would not enter into an extradition treaty with a country where procedural fairness is not accorded in relation to the extradition process.  Be that as it may, however, that question does not arise before me, having regard to the findings I have made concerning the process in France. Thus, it has been and will be open to Mr Bou-Simon to maintain before the French Court all of the allegations which have been made in this Court concerning the supplementary affidavit.  Accordingly, I do not consider that a case for intervention has been made out.

STAY OF THE PROSECUTION

The claim to have the prosecution of Mr Bou-Simon stayed is based upon contentions that there are incorrect statements of general legal principle in paragraph 33 of the supplementary affidavit concerning the effect of section 15C of the Crimes Act and section 65 of the Justices Act 1902 (NSW). If those statements are incorrect, it is common ground that the prosecution is bound to fail. It is necessary, therefore, to consider the possible application of those provisions in the context of the charges which have been laid against Mr Bou-Simon. In particular, it is necessary to consider the effect of the alleged incorrect statement in the charge that Mr Bou-Simon was an employee of FR Futures and the extent to which that would have any consequence in relation to the prosecution of Mr Bou-Simon if he is extradited from France.

Mr Bou-Simon’s initial contention was that this Court should not embark upon consideration of this question.  Doing so was characterised as a “collateral attack” upon the decision of Ms Horler. Mr Bou-Simon contended that an examination of that decision will not resolve the issue of whether or not, when Mr Craigie swore the supplementary affidavit, it was incumbent upon him to disclose that Ms Horler had reached a conclusion that was contrary to the opinion expressed by him.

On the other hand, the DPP contended that, in order to determine whether or not paragraph 33 was misleading so as to raise the question of whether or not the conduct of the DPP was an abuse of process, it was necessary for the Court to resolve the question of the correctness of the propositions contained in paragraph 33.  Mr Bou-Simon’s response was that, while it was inappropriate for the Court to embark on the consideration of that question, if the DPP persisted in raising it, Mr Bou-Simon would seek, in these proceedings, to restrain the DPP from proceeding with the prosecution.  It was in that context that Mr Bou-Simon was granted leave on 19 June 1998, without opposition, to claim the additional relief referred to above.

Mr Bou-Simon maintained his contention that, while the opinions expressed in paragraph 33 are incorrect, the real vice of the supplementary affidavit was the failure of the DPP to put before the French Court what was said to be a significant matter of fact.  That fact was the circumstance that Ms Horler had reached a conclusion which was contrary to the opinion expressed in paragraph 33 in relation to the very same charges and in respect of a matter, namely the limitation period, which was raised by the French Court in its request for further information.

Be that as it may, however, once Mr Bou-Simon sought the additional relief in this Court, the question of the naming of the incorrect employer and the possibility of amendment is directly raised in these proceedings.  The DPP has indicated that, if the Court accepts the contentions advanced on behalf of Mr Bou-Simon, the DPP would not pursue the extradition application because there would be a fatal flaw in the proceeding.  It is unfortunate that questions such those which are now raised have arisen more or less as a side wind in the proceedings as they were originally constituted.  At one stage, before the commencement of the final hearing, Mr Bou-Simon indicated that he may well be content with the interlocutory relief which I granted on 22 June 1998.  However, the DPP maintained the position that, if Mr Bou-Simon was not prepared to accept that the proceedings should be dismissed, it was necessary for the Court to embark on a final hearing.  It is therefore necessary for me to consider somewhat abstruse questions of criminal procedure.

It now appears to be accepted by the DPP that Mr Bou-Simon was not, at the time of the commission of the alleged contraventions of sections 232(6), an employee of FR Futures. It is not alleged that Mr Bou-Simon was an officer of FR Futures. Rather, it will be alleged that Mr Bou-Simon was an employee of FR Australia and that, in the course of his duties as such employee of FR Australia, he was required to provide services to FR Futures. It will be alleged that Mr Bou-Simon, being an employee of FR Australia, made improper use of his position as such an employee to gain a monetary advantage for himself by operating accounts of FR Futures in the name of O & O Investments. The DPP contends that, notwithstanding that the information alleges that Mr Bou-Simon was an employee of FR Futures, that incorrect statement is not fatal to the prosecution because, in the circumstances of this case, reliance can be placed upon either section 65 of the Justices Act or section 15C of the Crimes Act.

Section 68 of the Judiciary Act 1903 (Cth) provides that the laws of a State respecting the arrest and custody of offenders or persons charged with offences and the procedure for:
(a)       their summary conviction;
(b)       their examination and commitment for trial and indictment; and
(c)       their trial and conviction on indictment;
shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth.  The proceedings have been conducted before me on the basis that section 68 makes applicable to the prosecution of Mr Bou-Simon the provisions of the Justices Act.

Section 65 of the Justices Act relevantly provides as follows:

65       (1)       No objection shall be taken or allowed to any information, complaint, summons or warrant in respect of:

(a)       any alleged defect therein in substance or in form; or

(b)any variance between any information, complaint, summons or warrant and the evidence adduced in support of the information or complaint at the hearing.

(2)       No variance between any information and the evidence adduced in support thereof at the hearing in respect of the time or place at which the offence or act is alleged to have been committed shall be deemed material if it is proved that the information was in fact laid within the time limited by law in that behalf or that the offence or act was committed in New South Wales, as the case may be.

(3)       Where any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may upon such terms as he or they may think fit adjourn the hearing of the case to some future day.

The DPP contends that if the evidence adduced in any prosecution of Mr Bou-Simon establishes a contravention of section 232(6) on the basis that Mr Bou-Simon made improper use of his position as an employee of FR Australia, there would be no more than a variance between that evidence and the information laid on 1 December 1993 such that no objection could be taken or allowed. The consequence would be that Mr Bou-Simon could be convicted on the present informations.

The terms of section 15C of the Crimes Act of the Commonwealth have been set out above. The DPP contends that section 15C expands the powers of a magistrate in New South Wales when dealing with a variance between evidence and information and gives a power of amendment which is not conferred by section 65 of the Justices Act. Thus, section 15C could be relied upon, if need be, to support an amendment to the information although section 65(1) of the Justices Act makes any application for amendment under section 15C unnecessary.

Accordingly, so the DPP contends, it would be open to the prosecution on the hearing of the charges against Mr Bou-Simon:

(a)to make no application to amend the charge but to call its evidence and ask the magistrate to disregard the variance as to the name of the employer in reliance on section 65(1); or

(b)upon opening the informant’s case, to foreshadow an application to amend under section 15C and then, upon the variance becoming apparent through the tendering of evidence, make the application and secure the amendment of the information.

Mr Bou-Simon contended that neither of those propositions is correct.  First, he contends that the incorrect reference to the name of the employer of Mr Bou-Simon is not a mere “variance” and that, accordingly, neither section 65(1)(b) of the Justices Act nor 15C(1) of the Crimes Act has any application. Further, Mr Bou-Simon contends that, in any event, even where section 65 of the Justices Act applies or amendment is made under section 15C of the Crimes Act, the accused must be recharged and that that recharging is tantamount to the commencement of fresh proceedings such that, if the limitation period in respect of the charge has expired, the prosecution will be barred.  It is common ground that the limitation period in respect of the charges in the informations laid on 1 December 1993 have now expired, since all of the conduct alleged against Mr Bou-Simon occurred more than five years ago.

Variance

Clearly, it is an essential element in the offences alleged against Mr Bou-Simon that he made improper use of his position as an employee of a corporation. The question is whether a magistrate would be bound to convict Mr Bou-Simon of an offence against section 232(6) of the Corporations Law if it was found that all elements of such an offence were proved, even though the element of employment would be proved with respect to FR Australia rather than FR Futures as alleged in the information.

The question depends upon whether the offence for which Mr Bou-Simon would, in that circumstance, be convicted is a different offence from that charged in the information (see Ex parte Findlay; Re James (1953) 70 WN 115 at 117). Section 65 of the Justices Act will not enable a magistrate to convict of an offence established by the evidence if it is a different offence from that charged (Ex parte Lovell; Re Buckley [1938] SR 153 at 173).  If a different offence is involved, it is accepted by the DPP that Mr Bou-Simon would have to be recharged but that prosecution of that fresh charge would be barred.

The authorities to which I have been referred establish that there will be something more than variance where the offence proved is a different offence from that alleged in the information.  No assistance is given by them, however, as to what are the criteria for determining when one offence will be a different offence from another offence so as to constitute something more than a “variance”.

Mr Bou-Simon suggested that a way of testing whether there are different offences involved in this case is by reference to the rule against double jeopardy.  It is a fundamental rule of the criminal law that an accused person is not to be prosecuted twice for the same offence.  Reference was made to Connelly v DPP [1964] AC 1254. It was suggested that if a charge against an employee in respect of company A is the same offence as a charge against the same employee in relation to company B, then if the employee were acquitted of the charge in respect of company A he would be able to plead autrefois acquit in relation to any subsequent prosecution in respect of company B.

Counsel for Mr Bou-Simon drew on the analogy referred to in Connelly’s Case.  If a man is indicted for robbery or murder of John Smith and acquitted and is later indicted for the robbery or murder of Peter Jones, he could plead autrefois acquit if he could show that, notwithstanding the variance, John Smith and Peter Jones were in fact the same man.  However, if a man prosecuted for an offence committed as an employee of company A was acquitted and was later indicted for the same offence in relation to company B, he could not plead autrefois acquit because the offences relate to different companies.  Reference was made to National Companies and Securities Commission v Falk (1993) 10 ACSR 218 where it was held that an accused could not rely on the defence notwithstanding the dismissal of related charges. The Full Court of Western Australia held that the accused was never in peril of being convicted, pursuant to the earlier charges, on the subsequent charges.

I do not consider that these analogies assist in the resolution of the present question.  The question is whether the Warrant in its present form alleges a different offence from that in respect of which Mr Bou-Simon might be convicted as an employee of FR Australia.  The question of the application of the rule against double jeopardy is really no more than a different way of looking at the same question, namely, whether what is involved is a new offence.  If Mr Bou-Simon were acquitted or convicted of an offence by reason of the conduct particularised in the Warrant, I do not consider that he could be recharged with an offence based on that same conduct. 

The charges against Mr Bou-Simon make it clear that he is alleged to have used his position as an employee in relation to the performance of services for FR Futures.  It may be that it was because of his employment by FR Australia that he was performing those services.  Nevertheless it was in the performance of services for FR Futures that the conduct complained of took place.   The charge which would be proved on the assumption that all other matters are established would be that Mr Bou-Simon:

…did between about 15 September 1992 and about 29 September 1992 at Sydney in the State of New South Wales, being an employee of a corporation, namely Fay Richwhite Australia Limited, performing services on behalf of Fay Richwhite Futures Australia Limited (“the Corporation”) conduct trading without authorisation and thereby did make improper use of his position as such an employee to gain an advantage for himself, namely a financial advantage.

I have emphasised additional words which might be inserted in the charge in the Warrant by way of amendment.  The particulars in the Warrant would not require any amendment.

I do not regard the variation between the charge contained in the Warrant and the amended charge I have stated above as being anything more than a variance.  The offence by Mr Bou-Simon of making improper use of his position as an employee of FR Australia in performing services for FR Futures and trading without authorisation in the manner particularised is not a different offence from making improper use of his position as an employee of FR Futures in engaging in precisely the same conduct.

Necessity for Recharging

The alternative contention advanced on behalf of Mr Bou-Simon is that, even where section 65(1) of the Justices Act or section 15C of the Crimes Act applies, there will nevertheless be a requirement for recharging so as to constitute new proceedings for the purposes of any limitation period.  That contention is based on comments made by Jordan CJ in Ex parte Lovell; Re Buckley [1938] SR 153.

The DPP, on the other hand, contended that those comments do no more than state that the accused should fairly be informed and put on clear notice of the amendment or of the fact that reliance will be placed on section 65 of the Justices Act. That is done by orally reformulating the charge, taking account of the evidence adduced. If the Court considers that the accused has been misled, an adjournment must of course be offered pursuant to section 15C(3).

In Ex parte Lovell, Jordan CJ considered the origins of section 65 of the Justices Act in Jervis’ Act, 11 & 12 Vic c. 43 passed in 1848. Sections 1 and 3 of that Act are the precursors of sections 65(1) and 65(2). Jordan CJ explained the origin of those provisions in the practice of quashing summary convictions upon certiorari if the conviction did not on its face contain all such material as was necessary to enable a superior court to form a judgment as to whether the conviction was authorised by law.  In particular, it was essential, in order that a conviction might stand, that it should set out on its face, inter alia, the date and place of the alleged offence and an accurate description of the offence charged, not only stating every essential ingredient of the offence, but also giving particulars of the acts relied on as constituting the offence (at 166).

However, by Jervis’ Act it was provided that a summary conviction might be drawn in one of the forms contained in a schedule to the Act.  According to those forms, it was necessary to state the offence and the time and place when and where committed but it was not necessary to set out either the information or the evidence.  The consequence was that, if an offence had been correctly charged, it was no longer possible, on an application for certiorari, to show that there was no evidence to support the conviction.  It was in that context that sections 1 and 3 of Jervis’ Act provided essentially to the effect of sections 65(1) and (3). Section 9 provided to the effect of section 65(2).

Jordan CJ observed that sections 1 and 3 are primarily directed to proceedings at a stage when they are before justices.  His Honour observed that it had been held in England that, if it appears that the information does not allege all the ingredients of a statutory offence, or if the evidence does not support the offence charged but another and different offence, the sections are not available and the accused must be recharged. 

It is implicit in that observation, of course, that there is no necessity for recharging if the information does allege all the ingredients of the statutory offence and if the evidence does support the offence charged.  Thus, his Honour summarised the position by saying (at 173):

Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons:  s 133.

Section 133 of the Justices Act provides that, notwithstanding that there has been no information or summons, a conviction may be sustained if the party convicted was present at the hearing of the case and such party did not object at the hearing. His Honour’s observation, therefore, is concerned with section 133 and does not appear to have anything to do with section 65.

Jordon CJ then went on to say:

Section 65 of the Justices Act 1902 does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information. If it appears to the magistrate that what is alleged in the information does not constitute an offence, or that the evidence discloses another and different offence, he may go on with the trial if the accused is thereupon orally charged with the actual offence upon which it is proposed to proceed, and he takes no exception to the absence of information or summons; any necessary adjournment being of course allowed to prevent injustice. If, however, the accused does object, there is nothing in s 65 which obviates the necessity for an information and summons accurately charging the accused with the statutory offence of which it is proposed to convict him. If the magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad. [Emphasis added.]

It is clear in that passage that Jordan CJ was not dealing with the circumstances in which section 65 applies but with circumstances where section 65 is not applicable. That is to say, his Honour was not dealing with a variance between evidence and information but with the situation which arises where the evidence discloses an offence different from that which is specified in the information.

Mr Bou-Simon also relied on observations made by Herron J in Parmeter v Proctor (1949) 66 WN 48 in considering the possible operation of section 65 of the Justices Act. In that case, a magistrate had dismissed an information on the ground that the information alleged that dangerous driving was committed in Lang Road, Centennial Park whereas the evidence showed that it was not committed there but in Cook Road, which intersects with Lang Road. His Honour considered that the decision of the magistrate was erroneous in law for failing to give section 65(2) of the Justices Act its full weight, the magistrate, it appears, having directed his attention only to section 65(1). His Honour considered that the words of section 65(2) are distinct and clear in their effect and the street in which dangerous driving actually occurred was not material.

The gravamen of the offence in question was to drive at a dangerous speed in a public street. The variance between the evidence and the information was, by the operation of section 65(2), not to be regarded as material. Herron J said (at 51) as follows:

The present case is perhaps a little unusual in that the date of hearing took place more than six months from the date of the alleged offence, so that it was impossible for the information actually to be amended by re-charging the defendant orally; such a charge would have been out of time.  The proper course in my opinion was for the magistrate to have overlooked the statement of Lang Rd. and offer the defendant an adjournment and if that was refused to have gone on with the case on its merits, and if, as part of the same transaction as that referred to in the information, it was shown that the defendant had driven at a speed dangerous to the public upon a public street it was his duty to have convicted him.  If, in such a case, the magistrate thought that because of the lapse of time between the date of the offence and the hearing it was impossible for an adjournment to do justice between the parties, or that in some way the defendant was so prejudiced by the events that had happened that it would be unfair to convict him, he could no doubt dismiss the charge on the ground that he could not be satisfied beyond a reasonable doubt of the guilt of the defendant, and dismiss the case on such ground, but for him to have dismissed it on the ground that the allegation that the driving was in Lang Street was fatal to the charge was wrong, and the case must be remitted to the magistrate with that opinion.

Section 65(2) introduces the concept of whether a variance is “material”. Section 65(2) has the effect that, even if a variation in time or place between the evidence and the charge might otherwise be taken to be something more than a “variance” within the meaning of section 65(1)(b) such that section 65(1) could not be relied upon, the variance will be taken to be immaterial so long as, in the case of a variation in time, the offence was committed within the limitation period and, in the case of a variation in place, the offence was committed within New South Wales.

That construction of section 65(2) is not inconsistent with the conclusions of Herron J. As his Honour observed (at 51), the date of the hearing in that case took place more than six months from the date of the alleged offence so that it was not possible for the information to be amended by recharging the defendant orally since such a charge would have been out of time. That observation was obiter because his Honour took the view that the proper course in that case was for the magistrate to have overlooked the variance between the place alleged in the information and the place where the offence was proved to have occurred.  The only requirement was that the accused be offered an adjournment.

Mr Bou-Simon contends that it follows from Herron J’s observation that recharging orally constitutes a commencement of a fresh proceeding because of his Honour’s observation that “such a charge would have been out of time”. However, I consider that that statement should not be construed in that way. Although his Honour spoke of amending the information by recharging, his Honour was clearly adverting to the possibility of commencement of a fresh proceeding by an oral charge in reliance on section 133 of the Justices Act.  If such a fresh charge were still in time, that would have been a possible manner of proceeding.

The reference to “amending” the information is a little puzzling. However, I do not consider that his Honour should be taken to have been saying that recharging orally would have been necessary but for the operation of section 65(2). The only question was whether the difference between Lang Road and Cook Road was a variance within section 65(1). His Honour was saying no more than that such a difference is not material so long as the prerequisites of section 65(2) were satisfied, which they clearly were. The observations as to what the consequences might have been had there been an oral recharging, so as to commence a fresh prosecution, had nothing to do with the case. They were clearly obiter.  In any event, for the reasons I have indicated, I do not consider that the observations have the effect contended for by Mr Bou-Simon.

Herron J referred to Ex parte Kirkpatrick (1916) 16 SR 541 at 556 where the Court observed that the magistrates in that case were wrong in dismissing an information when they should have called on the informant for further particulars of the charge and granted an adjournment if necessary (at 49).  His Honour also referred to the observations made by Jordan CJ in Ex parte Lovell to which I have referred above. His Honour said that, notwithstanding section 65(2) of the Justices Act, a variation in date and place may so grossly misrepresent the position as to charge in effect a different offence altogether (at 50).  That, however, will be an extreme case.

Mr Bou-Simon also referred to the decision of Street CJ in Ex parte Williams; Re Singleton (1928) 28 SR 616.  In that case, the magistrate, evidently being of the opinion that the evidence was insufficient to establish the charge on which the accused was brought before him, substituted for it another charge which he thought that the evidence given was sufficient to support.  At the same time he informed the accused of what that other charge was so that he might have an opportunity of answering it.  The accused contended that the magistrate should have adjudicated upon the first charge before proceeding to try the accused upon what was referred to as “the second charge”.

Street CJ made the observation that, while a man cannot be convicted unless a legal offence is proved and cannot be convicted of an offence with which he has not been charged, if he is properly before the Court on an information which discloses no offence or which charges an offence which is not supported by the evidence, he may be orally charged with any other offence which the evidence is sufficient to support and, subject to being given a proper opportunity of meeting it, may be convicted of it (at 618-619). That appears to rely on section 133 of the Justices Act and the observation is clearly supported by that section.  Of course, if the “second charge” were barred because of lapse of time, that would be a different matter altogether.  However, that question did not arise.

In Carcosa Pty Ltd v Czerwaniwas agent for the Department of Health (1997) 93 A Crim R 287, the Court of Appeal of New South Wales held that certain charges of offences under the Tobacco Advertising Prohibition Act 1991 (NSW) relating to advertisements were duplicitous contrary to section 57 of the Justices Act.  Studdert AJA, with whom Powell and Beazley JJA agreed, observed (at 298) that duplicity in the information did not mean that the magistrate was compelled to dismiss the information.  By the time of the hearing, the 12 month limitation period had expired so that it was no longer open to the prosecution to lay a further five charges for the offences comprised in the one information.  However, once the duplicity was recognised, the prosecution should have been required to make an election as to upon which of six relevant advertisements it wished to pursue the prosecution.  That was not done.  The Court of Appeal held that, at the hearing before that Court, the error could not be effectively addressed by inviting an election.  Accordingly, the information was dismissed.

Mr Bou-Simon relied on observations made on by Powell JA (at 288) to the effect that, because by the time of the hearing before the magistrate the limitation period had expired, it would not have been open to the magistrate to recharge the accused.  His Honour referred to Ex parte Williams.  However, those observations do not appear to me to take the matter further.  Once an accused person is before the magistrate he may be charged orally, provided the charge then made is not barred by expiration of a limitation period.  There is nothing in the observations of Street CJ in Ex parte Williams or of Powell JA in Carcosa Pty Ltd to support the contention that it is necessary for there to be an oral recharging as a consequence of a finding that an information is duplicitous.

Section 57 of the Justices Act provides that every information must be for one offence only, and not for two or more offences.  However, as Studdert AJA observed in Carcosa Pty Limited, citing Hedberg v Woodhall (1913) 15 CLR 531, it is the duty of the magistrate, if he or she thinks that an information charges two offences, to tell the informant and to inform the informant of his or her right of election and ask him or her on which charge he or she desires to proceed (at 536). Where there is duplicity, it would be possible for the prosecution to recharge the accused and thereby commence a fresh prosecution. Such recharging could be in respect of all the offences contained in the duplicitous information. That course would clearly be unavailable where a limitation period in respect of the offences has expired. However, where the prosecution elects to proceed on one of the offences contained in the information, there is nothing in those cases to indicate that the prosecution must nevertheless recharge the accused in respect of that one.

In Reginav Justelius [1973] 1 NSWLR 471, the accused had been charged with stealing books stated in the charge to be the property of Heron Books Pty Ltd. The magistrate found that Concert Hall Record Company Pty Ltd was the owner of the books. Lee J, in the Court of Criminal Appeal of New South Wales, with whom Kerr CJ and Nagle J agreed, observed that the fact that an information wrongly alleges the ownership of the goods, the subject of the charge, is to be regarded as a defect of substance within section 65 of the Justices Act (at page 479D).  Once that error became apparent to a magistrate, the proper course for the magistrate to follow would be to require the correct ownership to be alleged, and the hearing adjourned if there were any prejudice to the accused.  It appears, however, that the magistrate did not take that course but the accused was nevertheless convicted.

At the hearing of an appeal to the Quarter Sessions Appeals Court, the ownership of the books was again in issue and, after evidence, the judge of that Court made the same finding as the magistrate. The judge, in relation to a submission that the information was defective, held that section 65 applied to the situation. The Court of Criminal Appeal held, however, that the proper course for the judge at Quarter Sessions was to amend the information by recharging the accused with the charge alleging that the books were the property of Concert Hall Record Company Pty Ltd and that he was in error in holding that section 65 of the Justices Act should be resorted to in order to remedy the defect apparent in the information.

Lee J referred to observations of Owen J in Ex parte Findlay; Re James (1953) 53 SR 174 at 177. There, Owen J said that, in an appellate court, there is a clear distinction between the amendment of a charge or information, so that there may be no variance between that charge and the evidence given in support of it, and the making for the first time of a new charge different in substance from the original one. Thus, while the magistrate may have been entitled to resort to section 65, the proper course for the judge of Quarter Sessions was to amend the information by recharging the accused with a charge alleging that the books were the property of Concert Hall Record Company Pty Ltd.

That conclusion does not bear on the question which I am presently considering. The present hypothesis is that a magistrate, before whom Mr Bou-Simon is prosecuted, will be asked to give leave to amend under section 15C of the Crimes Act or to ignore the variance pursuant to section 65(1) of the Justices Act.  There is nothing in Reg v Justelius to suggest that recharging so as to constitute a new prosecution outside the limitation period would be required for either course.

If the contentions of Mr Bou-Simon were accepted, section 65 of the Justices Act and section 15C of the Crimes Act would have little work to do.  The purpose of both provisions must be to enable a prosecution to continue notwithstanding a variance.  If, whenever reliance is placed on those provisions, it is nevertheless necessary to recharge the accused so as to commence a fresh prosecution, there would be little point in resorting to those provisions.  Without those provisions, if a variance were discovered, the accused would have to be recharged, presumably by laying a fresh information.  The obvious purpose of the provisions is to avoid that necessity.

The expression “no objection be taken or allowed” must mean just that.  Similarly, the word “amendment” signifies a change to an existing proceeding.  There is nothing in either provision which suggests that, in order to rely on the provision, it is necessary to commence a fresh prosecution by making a new charge.  I consider, therefore, that the DPP’s contention that “recharging” when used in the authorities on which Mr Bou-Simon relies, signifies no more than orally reformulating the charge as amended.  In so far as observations are made beyond that, they are obiter and are not justified by the language of the provisions.

Senior counsel for the DPP drew attention to Part IV of the Justices Act dealing with “procedure before justices”. Division 1 deals with indictable offences and Division 2 deals with offences punishable on summary conviction. The scheme of both Divisions is similar. Under section 21, an information may be laid in any case where any person has committed or is suspected to have committed certain offences. Under section 22, any such information may be by parole and without any oath unless it is intended that a warrant in the first instance is to be issued, in which case the information must be laid in writing. Under section 23, where any such information is laid against any person and the matter is substantiated by the oath of the informant, a warrant for the apprehension of the person may be issued if the person is not then in custody.

Section 1316 of the Corporations Law provides as follows:

Despite anything in any other law, proceedings for an offence against this Law may be instituted with the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.

Proceedings will be “instituted” within the meaning of that provision where an information is laid in accordance with section 22 of the Justices Act. Alternatively, if a person were already before a Court, proceedings could be instituted by the laying of an information by parole. Thus, in a case where section 65 of the Justices Act or section 15C of the Crimes Act cannot be called in aid, an information might be laid by parole. Such a case would entail the institution of fresh proceedings within the meaning of section 1316. However, where section 65 or section 15C can be availed of, there is no new proceeding instituted. The object of those provisions is to enable the existing proceeding to continue, either with amendment, if reliance is placed on section 15C, or without amendment, if reliance is placed on section 65.

In either case, if the Court considers that the defendant has been deceived or misled, an adjournment must be granted. In order to ensure that the accused understands the charge which is to be prosecuted against him or her, it may be necessary for the charge as amended pursuant to section 15C or after taking notice of the relevant variance under section 65, to be reformulated for him or her either orally or in writing. Such a reformulation or restatement would not in my opinion constitute institution of fresh proceedings within the meaning of section 1316 of the Corporations Law. 

Section 56 of the Justices Act provides that any information may, unless some other time is specially limited by the Act dealing with the matter, be laid or made at any time within six months from the time when the matter of the information arose. Section 15B of the Crimes Act (Cth) also provides that a prosecution of an individual for an offence against any law of the Commonwealth may be commenced at any time, if the penalty may include a term of imprisonment of more than six months. In any other case, the prosecution must be commenced within one year after the commission of the offence. The observations which I have made concerning when proceedings are instituted within section 1316 would be applicable, if relevant, to section 15B of the Crimes Act.

Thus, if section 15C of the Crimes Act or section 65 of the Justices Act may be availed of in the prosecution of Mr Bou-Simon for the offences referred to in the informations laid on 1 December 1993, there is no requirement that Mr Bou-Simon be recharged such that fresh proceedings could be said to have been instituted within the meaning of section 1316 of the Corporations Law. In other words, if section 65 or section 15C is to be relied upon, the relevant proceedings were instituted by the laying of the informations on 1 December 1993 and the limitation period provided for in section 1316 would have no application in the present case.

CONCLUSION

For reasons indicated above, I consider that Mr Bou-Simon is not entitled to any final relief.  Accordingly, the application should be dismissed with costs.  However, before making orders I will give the parties an opportunity of making further submissions, if they wish, as to the question of costs.

I certify that this and the preceding thirty-seven (37) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             8 September 1998

Counsel for the Applicant:	S.J. Rushton with G.J. Weepers
Solicitor for the Applicant:	Clayton Utz
Counsel for the First Respondent:	M.A. Wigney
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	D.J. Fagan SC
Solicitor for the Second Respondent:	Director of Public Prosecutions (Cth)
Date of hearing:	5 & 6 August 1998
Date of Judgment:	8 September 1998