Brian Trevor Ling v Michael Munns No. SCGRG 95/599 Judgment No. 5097 Number of Pages 6 Criminal Law and Procedure

[1995] SASC 5097

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Criminal law and procedure - particular offences - offences against government - Appeal conviction and sentence - whether dishonesty required to be proved for offence under s16(1) Export Control Act 1982 mental element required recording of conviction discretion under s19BCrimes Act - whether discretion miscarried. Export Control Act 1982 (Commonwealth); Crimes Act 1914 (Commonwealth), referred to. Lanham v Brake (1983) 34 SASR 578, applied. Proudman v Dayman (1943) 67 CLR 536; Noll v Cameron (1979) 22 SASR 321; Cameron v Holt (1979-1980)142 CLR 342, discussed.

HRNG ADELAIDE, 16 May 1995 #DATE 13:9:1995 #ADD 28:11:1995

Counsel for appellant:     Mr P D Smith

Solicitors for appellant:    Barnfield Somerville Verlato

Counsel for respondent:     Mr M Loftus

Solicitors for respondent: DPP (Cwlth)

ORDER
Appeal dismissed.

JUDGE1 LANDER J The appellant was charged on a complaint and summons in the Mount Gambier Magistrates Court on 20 February 1994 with making a misleading statement in a declaration furnished for the purposes of the Export Control Act regulations, contrary to s.16(1) of the Export Control Act 1982. The particulars of the offence alleged were:-
    "In a Vendor's Declaration as to Hormonal Growth Promotion
    Treatment Status of Cattle Offered for Sale/Slaughter form
    the defendant misleadingly stated that the cattle described
    on the form had not been treated with Hormonal Growth
    Promotants (HGPs) at any period of their lives, when in fact
    one cow was subsequently found to have been so treated."

2. The learned Magistrate found the charge proved, recorded a conviction against the appellant and fined him $100, with Court fees of $66. The appellant has appealed against both the finding that the charge was proved and against the penalty imposed insofar as the learned Magistrate recorded a conviction.

3. Section 16(1) of the Export Control Act 1982 reads:
    "A person shall not make a false or misleading statement in
    a declaration furnished for the purposes of the regulations.
    Penalty: $2,000 or imprisonment for twelve months, or
    both."

4. At the trial the parties provided a statement of agreed facts.
    "1. On 20 February 1994 at Kingston South East the defendant
    signed the Vendor's Declaration as to Hormonal Growth
    Promotant Treatment Status of Cattle offered for
    Sale/Slaughter. This Declaration is marked P2.

2. The purpose of completing P2 was to enable the cows
    referred to in P2 to be eligible for export to the European
    Community. The European Community does not permit the
    importing of cows which have been treated with Hormonal
    Growth Promotants.

3. P2 was provided to the occupier of the Smorgon Meat
    Abbatoir (sic) at Naracoorte after the defendant signed it
    and before the cows referred to in P2 were slaughtered.

4. The defendant was at all material times the owner of the
    cows referred to in P2.

5. The cows referred to in P2 were slaughtered on about the
    24th day of February 1994 at Smorgon Meat Abbattoir (sic) at
    Naracoorte. This Abbatoir (sic) is a registered premises
    under the Export Control Act 1982 by the Australian
    Quarantine and Inspection Service (AQIS) to produce export
    meat and has been allocated AQIS registration number 423.

6. One of the cows referred to in P2 had been treated with
    Hormonal Growth Promotant. The Hormonal Growth Promotant
    used was either Compudose 200 or Compudose 400.

7. The defendant was interviewed on 3 March 1994 and a
    transcript of that record of interview is attached and
    marked P3.

8. It was contrary to practice recommended by the
    manufacturers of Compudose that Hormonal Growth Promotants
    be used in breeding cattle. Compudose labels carry the
    words: 'Treated heifer calves should not be used for
    breeding'."

5. It was conceded by Mr Smith, counsel for the appellant, that the appellant made a statement in the declaration furnished for the purposes of the regulations and that the statement was misleading in that it was false in that it stated that none of the cows had been treated with HGP at any period of their lives, when in fact a cow had been treated. The declaration that the appellant executed stated:
    "I, the owner/authorized representative of the owner (delete
    as applicable), responsible for the husbandry of the
    livestock described below hereby declare that the cattle
    described below have not been treated with Hormonal Growth
    Promotants (HGPs) in any period of their lives."

6. The concession made by counsel, which in my opinion was rightly made, carried with it the concession that the particulars had been made out. So it followed the concession carried with it an acknowledgement that the actus reus had been proved.

7. The real issue before the Magistrate, and on appeal, was whether the Crown had discharged whatever burden it had in relation to the proof of the mental element of the offence. It was accepted by the respondent that there was an obligation on the part of the respondent to establish mens rea. The Crown further conceded that it was not suggested that the appellant knew that the declaration was misleading. The appellant's argument was that there was no evidence that the appellant signed the declaration knowing it to be false. It was then argued that the question to be determined was whether or not the appellant had been recklessly indifferent in signing the declaration. Mr Smith submitted, in the context of this section, and therefore this offence, that reckless indifference requires proof of dishonesty and there can be no dishonesty where a person has an honest belief in "as regards this case", the truth of the declaration. He relied on Holt v Cameron (1979) 22 SASR 321.

8. In that case the Full Court (and later the High Court) was concerned with the Social Services Act 1947 (Cth), which provided that it was an offence to present to an officer a document which was false in a particular. The matter in issue before the Full Court was as to whether or not that required proof by the prosecuting authority of mens rea, or whether the section, properly construed, left to the common law (viz. Proudman v Dayman (1943) 67 CLR 536) the protection for those who acted with an honest and reasonable belief in facts, which, if true, would have rendered the conduct innocent.

9. The Full Court examined the section, the context in which it was found, the purpose of the legislation, and reached the conclusion that the Crown was obliged to prove mens rea. The matter went to the High Court sub-nominee Cameron v Holt (1980) 142 CLR 342, and the reasoning of the Chief Justice, (with whom Mitchell J agreed) was expressly approved.

10. In the Full Court the learned Chief Justice said at page 324:
    "It seems to me that in practical terms, putting aside
    refinements and distinctions, the difference between the
    effect of the competing views as to the section is that if
    mens rea is an element of the offence, there must be
    dishonesty; if it is not and the defence of honest and
    reasonable mistake of fact must be relied on,
    unreasonableness is sufficient."

11. His Honour was there simply putting the competing arguments and the practical effect of them. As his Honour said, if mens rea was an element of the offence it was necessary for the Crown to prove an intention to do that which was alleged to have been done. On the other hand, if mens rea was not an element of the defence, the onus would have been upon the Crown to disprove that the belief which the defendant had (provided that issue was raised) was either not honest or not reasonable. His Honour was simply stating what needed to be established by the Crown on whichever competing argument was correct.

12. His Honour went on to say at page 325:
    "I think that the mens rea which is an element of the
    offence is knowledge of the falsity of the statement or at
    least reckless indifference as to its truth or falsehood."

13. There, his Honour identified precisely what was needed to be established to prove the mental element of the offence.

14. The Crown needed to establish beyond reasonable doubt that the defendant knew that the document was false in a particular, or if that could not be established, the Crown at least, to make out the mental element, needed to establish that the defendant had shown reckless indifference in the completion of the document in the form that it was completed. To put it even more simply, it was incumbent upon the Crown to establish intention on the part of the appellant, either by proof of knowledge or reckless indifference. As already mentioned, the Crown disavowed knowledge upon the part of the appellant. The question left to be answered is whether the Crown has made out reckless indifference.

15. The appellant argued that there can be no dishonesty where a person has an honest belief in the truth of the declaration. That may be to confuse the Proudman v Dayman defence, which would not be available, with the obligation of the Crown to prove reckless indifference. But in any event, he could not have honestly believed the declaration was true, or not misleading, because as to part of the period over which the declaration was concerned, he simply did not know if the cows had been treated.

16. In Howard's Criminal Law 5th Ed. at page 486 the learned author says:
    "The generally accepted meaning of recklessness in the
    criminal law at the present day is well expressed in the
    Model Penal Code of the American Law Institute.
    'A person acts recklessly with respect to a material element
    of an offence when he consciously disregards a substantial
    and unjustifiable risk that the material element exists or
    will result from his conduct. The risk must be of such a
    nature and degree that, considering the circumstances known
    to him, its disregard involves a gross deviation from the
    standard of conduct that a law-abiding person would observe
    in the actor's situation.'

This definition brings out clearly the structure and purpose
    of recklessness as a concept in the criminal law. The
    guiding idea is the conscious disregard of risk but
    liability to conviction is qualified in three ways: the risk
    must be both substantial and unjustifiable and the disregard
    must constitute a gross deviation from accepted standards of
    conduct."

17. In this case the appellant admitted in his statement, referred to in the agreed facts, that the cattle had been bought by his father ten to fifteen years before, probably at the local market. He agreed that he did not know the original owner, and therefore had not contacted him, but had just assumed that the cattle were HGP free, because as he put it, "they hadn't failed to produce a calf over the last number of years".

18. The appellant admitted in his evidence that he knew nothing of the cow's history for some one and a half to two years before they were purchased by his father. In the light of those admissions it seems to me it is not possible to argue that his Honour was wrong in coming to the conclusion that the appellant was recklessly indifferent to an element of the offence. The declaration was that the cattle described had not been treated with HGPs in any period of their lives. He knew that he could only account for a history for part of their lives. He knew that he was unable to account for the history for a further period of their lives. To sign a declaration in the form that he did, in my opinion, was a gross deviation from the standard of conduct that he ought to have observed.

19. For all of those reasons, the finding and the conviction was inevitable.

20. The appellant also complained that the learned Magistrate erred in recording a conviction against the appellant. It was submitted that the learned Magistrate ought to have exercised the powers given by s19B of the Crimes Act.

21. Section 19B of the Crimes Act (Commonwealth) provides:
    "(1) Where:
    (a) a person is charged before a court with an offence
    against the law of the Commonwealth; and
    (b) the court is satisfied, in respect of that charge or
    more than one of those charges, that the charge is proved,
    but is of the opinion, having regard to:
     (i) the character, antecedents, age, health or mental
     condition of the person;
     (ii) the extent (if any) to which the offence is of a
     trivial nature; or
     (iii) the extent (if any) to which the offence was
     committed under extenuating circumstances;
    that it is inexpedient to inflict any punishment, or to
    inflict any punishment other than a nominal punishment, or
    that it is expedient to release the offender on probation;
    the court may, by order:
    (c) dismiss the charge or charges in respect of which the
    court is so satisfied; or
    (d) discharge the person, without proceeding to conviction
    in respect of any charge referred to in paragraph (c) ..."

22. This charge was not of a trivial nature and could not have been so considered. It is important by way of regulation of the export industry that these declarations are accurate. The failure to make accurate declarations could have a very significant effect upon other persons in the industry. Nor, in my opinion, were there extenuating circumstances that would serve to trigger the operation of s19B. It was put, however, having regard to his character, and the circumstances surrounding the offence, it would have been appropriate not to have recorded a conviction. In particular, counsel argued that the non-deliberate nature of the offence and the appellant's previous good character, and the effect that a conviction might have upon the appellant and his wife adopting a child, required that the penalty not include a conviction. Whilst it is true to say that this appellant had been a person of good character, that by itself is not enough for the exercise of the discretion under s19B. In fact, in the absence of the fact that the offence is of a trivial nature or that the offence was committed under extenuating circumstances, proof of the character antecedents, age, health or mental condition of the person is necessary for the purpose of qualifying under the Act. It therefore follows, of course, that proof simply of the appellant's good character was not of itself sufficient to invoke the powers under s19B. Lanham v Brake (1983) 34 SASR 578.

23. The learned Magistrate had a discretion, which is conferred upon him by s19B, such that if he was satisfied that the charge was proved, but that it was inexpedient to inflict any punishment at all or any punishment other than a normal punishment, or that it was expedient to release the appellant on probation, then he could do so. However, I stress again, it is a discretion. It can only be said that the learned Magistrate was wrong if the discretion miscarried by reason of the fact that there was a misapprehension of principle, a misunderstanding of relevant facts, extraneous facts were had regard to, or extraneous facts which were relevant were ignored. There is no suggestion that the learned Magistrate fell into error in any of those respects. Indeed, there is no suggestion that he was under any misapprehension as to his duty.

24. In my opinion it has not been demonstrated that his Honour's discretion miscarried.

25. For those reasons this appeal ought to be dismissed.