Bromley v Bembridge
[2002] WASCA 192
•19 JULY 2002
BROMLEY -v- BEMBRIDGE [2002] WASCA 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 192 | |
| Case No: | SJA:1010/2002 | 26 JUNE 2002 | |
| Coram: | ROBERTS-SMITH J | 19/07/02 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions dismissed | ||
| A | |||
| PDF Version |
| Parties: | STUART JAMES BROMLEY KARIN HOPE BEMBRIDGE |
Catchwords: | Appeal Justices Act 1902 (WA) Travel Agents Act 1985 (WA) Convictions of carrying on business as a travel agent without a licence Holding out as carrying on business of a travel agent whilst not the holder of a licence Whether appellant acting in course of his employment Whether excepted under s 4(2) of the Travel Agents Act 1985 Appeal Summary jurisdiction Late amendment of charges Adjournment Summary jurisdiction Reasons for decision Whether required Sufficiency of reasons Appeal Sentence Fines onefifth the statutory maximum Whether manifestly excessive |
Legislation: | Travel Agents Act 1985 (WA), s 4, s 7 |
Case References: | Allen v Gittos (1995) 13 WAR 560 Barton v The Queen (1980) 147 CLR 75 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Donovan v Edwards [1922] VLR 87 Everard v Opperman [1958] VR 389 Grakalic v The Queen [2002] WASCA 139 Markarian v The Queen [2001] WASCA 393 Mathews v The Queen [2001] WASCA 264 Nevermann (1989) 43 A Crim R 347 R v Edwards [1975] QB 27 R v Fischer (1973) 22 FLR 456 R v McGill [1967] VR 683 Taylor v Ellis [1956] VR 457 Thomas v The Queen (1960) 102 CLR 584 Vines v Djordjevetich (1955) 91 CLR 512 Buller v The Queen [2002] WASCA 90 R v Brown [1998] AC 367 R v Cox [1960] VR 665 R v Devenish [1969] VR 737 R v Easom (1981) 28 SASR 134 R v Hall (1890) 16 VLR 650 R v Jones [1971] VR 72 R v Utans (1982) 29 SASR 592 R v Van Beelen (1973) 4 SASR 353 Thornberry v The Queen (1995) 69 ALJR 777 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- SJA 1019 of 2002
Consolidated by Order dated 25 February 2002
- Appellant
AND
KARIN HOPE BEMBRIDGE
Respondent
Catchwords:
Appeal - Justices Act 1902 (WA) - Travel Agents Act 1985 (WA) - Convictions of carrying on business as a travel agent without a licence - Holding out as carrying on business of a travel agent whilst not the holder of a licence - Whether appellant acting in course of his employment - Whether excepted under s 4(2) of the Travel Agents Act 1985
Appeal - Summary jurisdiction - Late amendment of charges - Adjournment
Summary jurisdiction - Reasons for decision - Whether required - Sufficiency of reasons
Appeal - Sentence - Fines onefifth the statutory maximum - Whether manifestly excessive
(Page 2)
Legislation:
Travel Agents Act 1985 (WA), s 4, s 7
Result:
Appeal against convictions dismissed
Category: A
Representation:
Counsel:
Appellant : Mr D P Moen
Respondent : Ms E C J Needham
Solicitors:
Appellant : David Manera
Respondent : Department of Consumer & Employment Protection
Case(s) referred to in judgment(s):
Allen v Gittos (1995) 13 WAR 560
Barton v The Queen (1980) 147 CLR 75
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Donovan v Edwards [1922] VLR 87
Everard v Opperman [1958] VR 389
Grakalic v The Queen [2002] WASCA 139
Markarian v The Queen [2001] WASCA 393
Mathews v The Queen [2001] WASCA 264
Nevermann (1989) 43 A Crim R 347
R v Edwards [1975] QB 27
R v Fischer (1973) 22 FLR 456
R v McGill [1967] VR 683
Taylor v Ellis [1956] VR 457
Thomas v The Queen (1960) 102 CLR 584
Vines v Djordjevetich (1955) 91 CLR 512
(Page 3)
Case(s) also cited:
Buller v The Queen [2002] WASCA 90
R v Brown [1998] AC 367
R v Cox [1960] VR 665
R v Devenish [1969] VR 737
R v Easom (1981) 28 SASR 134
R v Hall (1890) 16 VLR 650
R v Jones [1971] VR 72
R v Utans (1982) 29 SASR 592
R v Van Beelen (1973) 4 SASR 353
Thornberry v The Queen (1995) 69 ALJR 777
(Page 4)
1 ROBERTS-SMITH J: On 23 July 2001 the appellant was found guilty of two offences by her Worship Ms J Musk SM in the Court of Petty Sessions at Perth.
2 The offences were:
1. that between 1 February 1998 and 30 June 2000 in Perth, Western Australia, he carried on business as a travel agent when he was not the holder of a current travel agent's licence contrary to s 7(1) of the Travel Agent's Act 1985 (WA) ("the Act"); and
2. that between the same dates, in Perth, Western Australia, he held himself out as carrying on a business as a travel agent when he was not the holder of a current travel agent's licence contrary to s 7(3) of the Act.
3 Her Worship imposed a fine of $10,000 in respect of count 1 and a fine of $5,000 in respect of count 2. Pursuant to s 58 of the Sentencing Act 1995 (WA) she ordered that the appellant be detained in custody until the fines were paid but for a period not longer than 4 months.
4 Her Worship also ordered forfeiture to the Scouts Association of Victoria of the sum of $89,000, being an amount the appellant had admitted was still in an account in the United States of America. She ordered the appellant to pay the prosecution's costs fixed at $9,000, including $6,081 in disbursements.
5 Applications for extension of time to appeal and for leave to appeal against sentence were filed by the appellant on 25 January 2002. Those applications were granted by McKechnie J on 4 February 2002. On 8 February 2002 the appellant filed applications for extension of time and leave to appeal against the convictions. Those applications were granted by Murray J on 25 February 2002.
6 The appeals came on for hearing before me on 26 June 2002.
7 The grounds of appeal against conviction are:
"(a) the learned Magistrate erred in failing to grant the Applicant an adjournment for the purposes of obtaining legal advice and for the purposes of being represented at the relevant hearing;
(Page 5)
- (b) the learned Magistrate erred in her finding that on at least four occasions the Applicant had acted as a travel agent for the Scouts Association in Victoria and Western Australia by arranging air flights and ground transport for groups of scouts between February 1998 and June 2000 when there was no such evidence that the Applicant had at any time in either 1998 or 1999 engaged in any activity whatsoever relating to the Scouts Association in Victoria and Western Australia by arranging air flights and ground support for groups of scouts;
(c) the learned Magistrate erred in law in the apparent interpretation (sic) of the Travel Agents Act to the facts which were found to be proved beyond reasonable doubt;
(d) the learned Magistrate erred in failing to give sufficient reasons in finding that the charge had been proved beyond reasonable doubt;
(e) the learned Magistrate erred in her decision in failing to examine and look at the defence of honest and reasonable mistake of law and fact when the evidence led by the Applicant supported such a defence.
Particulars:
(i) the failure of the learned Magistrate to consider the defence of honest and reasonable mistake and belief of law and/or fact was germane to the Applicant's defence;
(ii) there was clearly evidence before the learned Magistrate which raised the defence of honest and reasonable mistake and belief of law and/or fact; and
(iii) the failure of the learned Magistrate to at least consider such a defence deprived the Applicant of a prospect of acquittal.
(f) The learned Magistrate erred in failing to take into account the purported intention of the Applicant when he went about fulfilling the requests made of him by the relevant associations;
(Page 6)
- (g) The learned Magistrate, in her reasons for decision, applied speculation in coming to a conclusion that the charges had been proved beyond reasonable doubt.
(h) The learned Magistrate erred in her decision in finding that a fraud had been committed and therefore was an element of the offence to which she paid important significance on (sic) in finding that it is (sic) consistent with the Applicant seeking to avoid the provisions of the Travel Agents Act.
(i) The learned Magistrate erred in fact in coming to a conclusion that she was satisfied that the Applicant was carrying on the business of a travel agent in that on at least four occasions he had arranged or made available flights of passage on conveyances, which included a ferry on one occasion and an aircraft of others (sic).
(j) The learned Magistrate made findings of credibility right at the end of her reasons for decision without justifying how she came to the conclusion that the Applicant's story was a complete fabrication or he was lying or living in a fantasy land and had brought his fantasy world into the court room."
8 Grounds (b) and (i) were abandoned at the hearing. To understand the grounds it is necessary to briefly summarise the proceedings and the prosecution case.
9 The complainant was a compliance officer with what was then the Ministry of Fair Trading but later became the Department of Consumer and Employment Protection ("DCEP"). The complaint dated 19 February 2001 contained two charges. They were in the form set out above except that each alleged an offence between 1 February 2000 and 30 June 2000.
10 When the matter came on for hearing before her Worship on 19 July 2001 the prosecutor applied to amend the date of the offences to cover the period from 1 February 1998 to 30 June 2000. The appellant, who was representing himself, opposed the application, of which he said he had been notified only the previous day. The original charges concerned the appellant's activities relating to the Scouts Association in Victoria ("the Victorian Scouts"). The purpose of the proposed amendment was to bring in evidence of his earlier activities with the Scouts Association in Western Australia ("the WA Scouts"). Additional witnesses would be called.
(Page 7)
- There was some discussion between her Worship, the appellant and counsel for the respondent, and her Worship finally allowed the amendment on the basis that if the appellant had any difficulty as a result of the evidence called she would consider a later application by him for an adjournment.
11 As opened by the prosecution, the case was said to primarily concern an activity in Kakadu for the Victorian Scouts but in order to show that was not an isolated instance but part of a course of conduct amounting to the appellant "carrying on business as a travel agent", there would be evidence that the appellant organised rights of passage and other things in respect of three other events involving some hundreds of scouts for two separate scout branches. It was the Kakadu event which was said to be the subject of the charges; the evidence of the three other events was to establish the element that in making the arrangements for Kakadu, the appellant was carrying on the business of a travel agent. The prosecutor said that although the appellant presented himself in documentation as representing certain organisations, in reality it was he personally who was arranging travel and carrying on the business of a travel agent.
12 It is useful at this point to refer to the relevant statutory provisions.
13 Section 7 of the Act so far as is relevant here provides:
"7. (1) Subject to this Act, a person shall not carry on business as a travel agent unless the person is the holder of a licence.
Penalty: a fine of $50 000 or 12 months' imprisonment or both, with a minimum fine of $5 000 in the case of a second or subsequent offence.
(2) ...
(3) Subject to this Act, an individual shall not hold himself out, and a body corporate shall not hold itself out, as carrying on business as a travel agent unless the individual or body corporate, as the case requires, is a licensee.
Penalty: $25 000 or 6 months' imprisonment or both, with a minimum fine of $2 500 in the case of a second or subsequent offence."
(Page 8)
- "4. (1) Subject to this section, a person carries on business as a travel agent for the purposes of this Act if he carries on the activity (whether or not in the course of, or incidentally to, or in connection with, any other activity) of –
(a) selling tickets entitling other persons to travel, or otherwise arranging for other persons rights of passage, on conveyances which are not prescribed conveyances;
(b) selling to, or arranging or making available for, other persons rights of passage to, and hotel or other accommodation at, places –
(i) which are within or outside; or
(ii) some of which are within, and others of which are outside,
Western Australia;
(d) carrying on an activity which is prescribed for the purposes of this paragraph; or
(e) holding out or advertising that the person is willing to carry on any activity referred to in paragraph (a), (b), (c) or (d).
(2) An individual does not carry on business as a travel agent by reason only of carrying on in the course of his employment any activity referred to in subsection (1)(a), (b), (c), (d) or (e)."
15 For convenience, I shall refer to the activities referred to in s 4(1)(a) to (e) as "the designated activities."
16 Subsection (3) of s 4 sets out further exceptions but they have no application to the present case.
17 The trial before her Worship went something over two days. She gave detailed reasons for decision. In those, she adverted to the apparent import of the Act being to impose certain obligations upon licensed travel agents, including the keeping of accounts and records and to afford some
(Page 9)
- recourse to consumers in the event of problems with arrangements made by travel agents. She then alluded to s 4 of the Act, defining what constitutes carrying on business as a travel agent and then turned to the exceptions - that is, circumstances in which conducting the designated activities would not constitute carrying on business as a travel agent. In that regard she mentioned that arrangements, etc, made by persons in respect of conveyances or accommodation owned by them are excepted and then, in an apparent reference to s 4(2) said (AB 303) there was an exception where the person:
"… is an employee of a travel … or somebody who is carrying on the business of a travel agent."
"The complainant led evidence of, in effect, four events, which it alleges shows the carrying on of this business. And I'm not going to go through all the evidence but we've just referred to some of the key matters raised by some of the witnesses.
The first witness, Mr Walsh, who was at the relevant time state commissioner for scouts (sic) in Victoria, was involved in two operations with the defendant. The first in the school holidays in September 98 to central Australia in conjunction with a group of scouts from WA called Operation Desert Storm, in which the defendant arranged air transport and also other on ground transport for a large group of scouts.
Operation Kakadu was another prospect raised by the defendant. It was raised in February 99 for the school holidays in the first term of April 2000.
Mr Walsh and he met in May 99 and discussed this. A preparatory trip was arranged for Mr Walsh and another person in August 99 and the flights and accommodation and bookings for that were made by the defendant.
In respect of Operation Kakadu the defendant collected money from individual scouts and reimbursed Mr Walsh for the reconnaissance trip as he called it and other promotional costs.
But that trip was postponed from its original date in April 2000 to the July school holidays at the end of June, beginning of July
(Page 10)
- 2000 and about 400 people were involved at a cost of an average of 595 each which was in excess of $200,000.
When it was cancelled the second time the defendant, having told Mr Walsh that Air Pacific, the charter that he had arranged was no longer available because of political trouble in Fiji, Mr Walsh asked for refunds. He got $40,000 back and nothing more. And the scout association, he says, are holding a debt of about 222,000 (sic), which it repaid to the individual scouts in full for the money that they had put up for this trip.
Now, the arrangement was that, on various occasions, the defendant was to subsidise each participant in these trips to the extent, he said, of $150 per scout. And then he fed out money for expenses organised by the scouts and promotional expenses and the cost of the reconnaissance trip when it came to the Kakadu arrangement.
But when that tour was cancelled because according to the defendant the flight had been - - which had been organised with Air Pacific was cancelled by them the defendant - - sorry, the defendant never said - - and this is acknowledged by this witness - - that he was a travel agent, but he says he indicated his ability to arrange travel as a public officer with the Arts Foundation and/or the International Museum.
Dion Ellis was the second witness, executive director of the Scouts Association, has been for 6-1/2 years. On the Thursday before the Kakadu trip was to happen, he says, he became aware the parents were calling radio stations to say the airline had let the (sic: Scouts) down and he contacted the defendant.
On the 22nd of June the defendant talked about trying to arrange other possibilities to still get the group to Kakadu. He even spoke to QANTAS and then considered other possibilities but for a number of reasons, and he also, he said, became concerned about where the moneys were. In the end the trip did not proceed.
Paul Jobson, QANTAS charter manager (sic) received inquiries from the defendant in 98 for a charter to Alice Springs but nothing came of that.
(Page 11)
- Then he has arranged a charter flight for April 2000 which was the first date for Operation Kakadu which, he says, was cancelled by the defendant two days before it was due to happen.
Now, Mr Lucas from the WA Scouts gave evidence of two trips arranged by the defendant and two other projects that had been discussed. The defendant organised certain things for the Rottnest trip - - the first one, including the ferry and catering and a guest speaker, to Rottnest.
And then the trip to Alice Springs or Curtin Springs in September 98 called Operation Desert Storm. Then they discussed arrangements to go to Sydney for a jamboree (sic) in 2001. In the end that didn't go ahead.
Now, Mr Jones from Scouts WA who has been general manager (sic) since April 2000 and through him really were tendered certified copies of three cheques made out to the Arts Foundation in respect of certain travel costs. They're exhibits 36A, B and C, and they're cheques for $70,000, $54,000 and $40,000, in relation to the Operation Desert Storm.
Steve Meagher, manager of registration services (sic) for what was formerly the Ministry of Fair Trading, and in exhibits 37 to 40, evidence of certain requests and responses from the defendant, from that department over a period of time.
And finally Karin Benbridge (sic), inspector under the Travel Agents Act, who investigated the possible breaches of the Act by the defendant and gave evidence of the result of her investigations and various searches, including the Travel Agents Register of Business Names, Associations and Corporation bank records, which show a number of things but there are, in particular, no registered travel agent in the name of the defendant or any other of the entities he's purported to have acted for.
The defendant says he is a public officer or a CEO or a body corporate in Delaware in the USA and on the occasions where he sought to organise flights and other transport for the scouts he says he was employed by the scouts (sic) and, in fact, says, he in fact, received legal advice from the scouts (sic) and also, in a sense, from QANTAS, that he was not breaking any law in
(Page 12)
- doing what he was doing, in arranging these things for the scouts.
At one point he said he's a volunteer for the Arts Foundation which is a subsidiary of the International Museum and spends up to $2 million per annum in philanthropic activities concerned with youth. He resides for three to four months of the year in Western Australia and is remunerated in some way by the International Museum.
Now, regarding Kakadu, he says he was employed by the scouts. Some of the money from the - - and they organised it all. Some of the money from the participants came to him, some was collected through a Graham? (sic)Moore? (sic)who forwarded it onto him, but he says the scouts were facilitators and he provided that - - or his organisation that the charter aircraft free, and that was, in effect, the subsidy for the Ayers Rock, Alice Springs Desert Storm Operation. The subsidy was $150 per scout, although it did turn out to be more.
But in essence, again, it was the chartering of what was a Thai Air or Merpati Air plan (sic) for that operation. He says it was the scouts which were responsible for cancellation of the trip to Kakadu on the second occasion, not him.
In respect of Kakadu, the total collected between June 99 and January 2000 was over $220,000. There were draw downs, he said, of $129,000 made by scouts for expenses, and in the end he refunded them $40,000 after cancellation of the Kakadu trip, which he said was due to the coup in Fiji, which was a force majeure.
Now, he says $89,000 is the balance of these funds. It's held in a trust account in the USA. All the cheques received from scouts for that operation were deposited into the account of, what appears, S J Bromley as trustee for the Arts Foundation.
He agrees that Kakadu, that he was to provide the aircraft and some of the transport on the ground. For Rottnest he organised the ferry. For Desert Storm he organised, first of all, a large aircraft and then other lighter aircraft for smaller trips once they got to Alice Springs.
(Page 13)
- There was no written agreement with Merpati Air, the first charter, nor Air Pacific in respect of the chartering of aircraft for the proposed trip to Kakadu.
There was a written document in respect of the QANTAS arrangement, but in the end he didn't go ahead with the QANTAS charter because of the cancellation in April 2000 due to a cyclone in the top end.
Now, in essence, Mr Bromley asserts that his is a philanthropic association, he's not carrying on the business of a travel agent, he was employed by the Scouts Associations, he was not acting travel agent and he is, in fact, employed in some way by one of these US organisations under whose umbrella he acts.
Now, section 4 does not matter according to section - - the way section 4 of the Travel Agents Act is couched; whether the activities are in the course of or incidental or in connection with any other activity, the fact is, and I accept, that in this case, the defendant is the only one the various witnesses for the complainant dealt with him making these travel arrangements.
He purported to be acting on behalf of these other entities in the United States. The bank account to which certain amounts were deposited including those which match with the amounts received from the WA scouts were into the Challenge Bank account styled S Bromley as trustee for the Arts Foundation, that's exhibit 45. And that account was opened in February 97, originally in his own name alone, and then was changed to the style of his name as trustee for the Arts Foundation.
He held himself out as acting for the Arts Foundation and cheques were made payable to the Arts Foundation. Exhibit 50 which shows a credit on the 17th of September 98, $54,000, then $70,000, that's on statement 19, and $40,000. These moneys did not go into a trust account in the sense of being held in a trust for the scouts or the individual scouts or the Scouts Association, but into this personal account styled Stuart Bromley as trustee for the Arts Foundation.
So moneys went into that account even though styled 'as trustee for', it is in effect, of course, his account, is operated by him, controlled by him, that was just the way it was styled.
(Page 14)
- Now, the defendant says he was employed by the Scouts Associations. What I believe he means, having regard to the evidence, is that he was engaged by the scouts. I accept that there was certainly no contract of employment between him and them. He says he took legal advice from them and, in effect, from QANTAS, about what he was doing. Now, if he wants to accept their legal advice, which I don't accept on the evidence, was in fact given to him in any event, it means though that he knows, or at least he's put on notice that he must have regard to the contents of the Travel Agents Act. And one certainly can't rely on legal advice from the Scouts Associations or even an airline, in respect to those matters.
The Travel Agents Act accepts or exempts employees. He was not employed by a company which is a travel agent, though I must look at the evidence to see whether what he did was carrying on the activity of arranging for other persons' rites (sic) of passage or conveyance as outlined in section 4.
It says:
'Remuneration comes from International Museum, a philanthropic entity based in the US.'
Now, having regard to what he says about chartering 747s or 767s with no written documentation, it's difficult to imagine one can charter a 747 or a 767 which is a very large and expensive aircraft if you are not carrying on the business of a travel agent. If you are carrying on that sort of work, regardless of motivation and regardless of payment arrangements, one would think you would have to comply with the Act. If he is a legitimate organisation, he would get himself registered, then all the controls which the travel agents have to comply with, he would have to comply with.
Yes. All right. Now, in respect of who approached who first to engage the defendant to arrange the ferries to Rottnest, the flights to Alice Springs, Kakadu and then Sydney, he held himself out as someone able and willing to arrange large aircraft charters.
Now, he does not need business cards, advertising, and such things, all of which, of course, would make it more obvious, but certainly are not necessary, and it doesn't matter that he didn't
(Page 15)
- call himself a travel agent. It is rather a matter of what he holds himself out as capable of doing.
It is, in my view, an extraordinary state of affairs that he says he can charter a jumbo jet without anything in writing, given the size and cost of such an operation and given the evidence of the charter operations manager of QANTAS, regarding the quite elaborate arrangements and documentation necessary for QANTAS to put such an arrangement in place.
Now, fraud has been alluded to, and may well have been established, but that is not what I am here to make a determination about. But given that there seems to be some element of fraud, it is consistent with him seeking to avoid the provisions of the Travel Agents Act. If he had a licence he would have to obey the rules, if he doesn't have a licence then he doesn't have to obey the rules.
I think I can break it down to these questions: Was he doing the sort of things a travel agent does, as defined in section 4 of the Act? The answer is yes. Is he doing it more than once because if only once, one could argue that that's not carrying on a business but it's a one off situation. Yes, on the second and certainly then on the third and fourth occasions, he is carrying on the business of a travel agent.
Is he getting remuneration for doing it? Yes, he says, by people in the US. It doesn't matter how he is paid, but that is the situation. Is he employed by a travel agent licensed or otherwise? The answer is no.
I am satisfied that he is carrying on the business as a travel agent, in that on at least four occasions he arranged or made available rites (sic) of passage on conveyances which included a ferry on one occasion, an aircraft on others.
He could be employed by the Arts Foundation or the International Museum or one of the other entities he has mentioned, but unless they are licensed travel agents, which they are not, he has no umbrella to shelter under.
He has known about this prosecution for many months and it was prompted by the loss of money by the Scouts Association in Victoria. He could have got the money, which he says, at
(Page 16)
- least $89,000 is sitting in a trust account in the USA, and got it back over here, however he does not appear to have done so.
I believe that his story is a fabrication or he's living in fantasy land and has brought his fantasy world into the court room. It is either that or he's guilty of fraud. But either way he has breached the Travel Agents Act, both section 7(1) and section 7(3), and the two charges are proved beyond reasonable doubt."
19 I turn now to the grounds of appeal.
Ground (a): Failure to grant adjournment
20 When the prosecution sought at the outset of the hearing to amend the date of the charges to commence from 1 February 1998 instead of 1 February 2000, the appellant said he had been notified of that only the day before. He said the prosecution also intended to call additional witnesses whose evidence would relate to Western Australia and he was not prepared for that. He was not concerned about witnesses who would give evidence about his dealings with the Victorian Scouts because they were witnesses he would have called himself.
21 The prosecution's response to this was that the charges in substance concerned only his dealings with the Victorian Scouts, but the prosecution had decided it was necessary to expand the time of the alleged offences so as to enable evidence to be led of the appellant's dealings with the WA Scouts. That was to prove the element that he had been "carrying on business" as a travel agent. There were only two additional witnesses to be called. Three witnesses had been flown from Victoria and the prosecution was ready to proceed.
22 Questioned by the learned Magistrate, the appellant said he had never been given particulars of the charges; he said he asked the Court Registrar for them but had made no written or formal request. He was happy to proceed with respect to the Melbourne witnesses. In further exchanges it became clear there were three additional witnesses to be called. One (Mr Dion Ellis) was from Victoria; the other two (Messrs Larry Lucas and Peter Jones) were from Western Australia. The appellant repeated he was happy with witnesses from Victoria because he was prepared for that. Furthermore, he had hoped Lucas would be called and wanted him to be.
(Page 17)
23 Ultimately therefore, it transpired that there was only one witness (Jones) who was a surprise to the appellant. On that understanding, her Worship ruled (AB 36) that the hearing would proceed and once Jones had given his evidence-in-chief she would hear any application the appellant wanted to make at that stage if he wished to have an adjournment to prepare his cross-examination of the witness. She also indicated that if the appellant wished to renew his application for an adjournment at the end of the prosecution case to summons witnesses because of matters of which he had no previous knowledge, she would consider that.
24 At the end of the first day's hearing, the prosecutor told the learned Magistrate (AB 156) that in light of the appellant's objection, it had been decided not to call Jones; the view had been taken that Lucas' evidence would be sufficient to cover it. However the appellant then indicated that as the prosecution's case had now included reference to Western Australia, he would have to call Jones himself. Her Worship then suggested the prosecution should make Jones available and the prosecutor agreed to that course.
25 Jones was accordingly called by the prosecutor the following day. There then occurred the following exchange (AB 184):
"MR BROMLEY: Your Honour, I wish to object to this witness because I have not had time to prepare for any evidence - -
HER WORSHIP: Well, yesterday you said you wanted him called today.
MR BROMLEY: Yeah. But I object now. I have not had time to get the files in reference to this witness.
HER WORSHIP: Well, we'll hear his evidence, and then at the end of hearing it, you can then determine whether or not you're in a position to cross-examine him.
MR BROMLEY: Okay."
26 Prosecuting counsel explained that Jones had been called only because the appellant had requested him, although it was intended to have him tender only one document. The appellant acknowledged that he had asked that Jones be called, but he had not been able to obtain documents he needed since the scope of the charges had been expanded, and that was
(Page 18)
- the reason for his objection. Her Worship decided to proceed with the witness on the basis the prosecutor was essentially just putting him forward for cross-examination.
27 The hearing then continued. Through Jones, the prosecutor tendered three Scout Association cheques (exhibit 36). They were to prove payments to the appellant. Those payments had already been proved by the earlier tender of the relevant bank statements (exhibits 19, 20 and 21) through the witness Lucas. Nor were those payments disputed by the appellant - that they had been made was common ground.
28 The appellant then cross-examined the witness at some length about charter arrangements relating to Qantas for the Jamboree to be held in Sydney in January 2001. Jones' evidence was that when he contacted Qantas about a faxed document provided to him by the appellant purporting to reflect a booking actually made for two contingents of scouts to fill two aircraft at a certain price, Qantas advised it was an indicative price only, no arrangements had been made and they were unable to confirm that Qantas could transport that number of passengers at that stage.
29 He was further cross-examined about whether the scouts had cancelled that or sought a variation of the agreement with the appellant's organisation to reduce the contingent numbers from 600 to 400 scouts.
30 He confirmed the Victorian Scouts had sought repayment of $40,400 from the Arts Foundation. That money had been paid the scouts direct to BP Air in advance to "lock down" fuel prices, but was subsequently paid (apparently at the appellant's request) to the Arts Foundation as a refund. The Scouts Association had been seeking recovery of that amount which was its money and should never have been paid to the Arts Foundation nor the appellant.
31 Her Worship quite properly pointed out that the line of cross-examination which went to whether there had been any breach of contract by either party did not go to any issue relevant to the offences charged. The appellant then concluded his cross-examination. At that point, the prosecutor sought to tender another document through this witness.
32 This document was said to be a letter from the appellant to Jones, by fax, on 4 August 2000. The appellant objected, pointing out that it was outside the periods specified in the charges. The prosecutor said it was sought to be tendered because it was the appellant writing to the Scouts
(Page 19)
- Association about the Jamboree arrangements on the Arts Foundation letterhead, showing a particular ABN. Prior to 13 June 2000 there has been no requirement for such a number.
33 Mr Moen, counsel for the appellant, pointed to the appellant's protestations (AB 195) against what was proposed, in which he complained he had been "sprung" the previous day with the fact the prosecution had expanded the inquiry to include things not previously included and that he was getting these surprises along the way and having to defend an organisation that had a great reputation.
34 Counsel at the trial indicated that subsequent witnesses would be giving evidence that they could obtain no information in respect of the United States based entities and that the Australian entity so described and with the ABN shown, had no bank accounts, no general meetings and existed only on paper - the prosecution point being that although the appellant purported to be acting on behalf of that entity, in reality he was acting on his own account.
35 Her Worship pointed out that if all the prosecution wanted the letter for was to show the ABN, it was not necessary because that detail was on correspondence which had already been tendered. In light of that, the prosecutor said he would not press the tender but would rely upon the earlier document, referring specifically to exhibit 11. The witness was then released.
36 The prosecutor then called Mr Stephen Meagher, Manager of Business Regulation Services at DECP. The appellant said this again was a witness of whom he had not been notified.
37 Her Worship noted that in his original objection the appellant's concern had been that although he was prepared for the Victorian witnesses, the amendment of the charges meant witnesses from Western Australia would be called to testify about Western Australian dealings, namely a camp at Rottnest and the Jamboree. She observed that the witness Lucas had given evidence about those matters and from the appellant's cross-examination, her understanding was the appellant was not disputing the claim that he had been involved in trying to organise the aircraft charter and indeed, he was confirming that he had. The appellant agreed with that. The remaining witnesses were apparently to give evidence about the Department's investigations into the legal entities in whose names the appellant had purportedly been acting. Their evidence would have to have been called anyway.
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38 The appellant said he believed the prosecution was seeking a conviction and to obtain restitution by "implying" that he operated as himself. That, he said, was a totally different situation and if he had had the time to prepare, he would have brought the Chairman.
39 There was then some discussion about the nature of the charges and whether or not the appellant had sought particulars. Her Worship pointed out that whether or not the appellant was the person or entity acting as a travel agent had been an issue from the outset; that was not something that had arisen as a result of the amendment of the charges.
40 From what passed during these and earlier exchanges, it seems there had originally been two charges laid against the International Arts Foundation but DCEP withdrew those because of the problem with trying to identify what organisation had been involved.
41 In any event, her Worship made it clear the present charges were that the appellant himself had breached the Act and on that basis the appellant agreed to proceed.
42 Meagher was then called. In substance his evidence was that the Commissioner for Fair Trading ("the Commissioner") had written to the appellant on 4 December 2000 directing him to provide certified financial and other details about the International Arts Foundation Inc and the International Museum, to which the appellant responded by letter dated 15 January 2001 (exhibit 37) attaching what he said were balance sheets for the two entities.
43 By letter dated 9 March 2001 the Commissioner wrote again to the appellant requesting membership lists, financial statements, minutes and other information in relation to the two entities. The appellant replied by letter (exhibit 40) stating, inter alia, no bank accounts existed. That completed the examination-in-chief.
44 In cross-examination Meagher said there had been a meeting at which the appellant was to produce membership lists but told them the United States Embassy had not allowed him to produce hard copy lists. Instead he showed the departmental representatives what he said was a list of members of the International Museum, by scrolling through lists of names on his laptop computer. The witness's recollection was that the appellant told them the Scouts Association had injuncted him to stop him providing the list for the International Arts Foundation.
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45 The final witness for the prosecution was Ms Karen Bembridge, an Inspector appointed under the Act. She became involved about September 2000 following a complaint from Scouts Victoria about the appellant's involvement with Operation Kakadu. She wrote to the appellant requesting a copy of the charter agreement relating to Operation Kakadu. In his reply he said he did not have a copy of the agreement. He enclosed an affidavit in which he described himself as Public Officer and CEO of the International Museum, a museum institute registered in Delaware, USA, and deposed he had no documentation regarding any charter for Kakadu.
46 Ms Bembridge produced a declaration (exhibit 42) by the Registrar of the Commercial Tribunal, certifying that none of the appellant, the Arts Foundation, the International Museum (Australian Branch) Inc nor the International Arts Foundation Inc was a licensed travel agent. This witness also referred to the ABN on exhibit 11 and produced a certified copy of the entry from the Australian Business Register relating to the International Arts Foundation Inc showing the ABN was active but no Australian company nor Australian registered entity number was quoted.
47 Ms Bembridge produced Challenge Bank records of the account of "Stuart James Bromley ATF The Arts Foundation", from 1 January 1998 to that date, together with various items of correspondence and certified copies of cheques. The latter were cheques payable to the Arts Foundation Inc, Kakadu Trust, which had been deposited in the appellant's account. That account was originally opened in his own name; it was only later that the style by which it was described was changed to read "ATF The Arts Foundation". The appellant was the only signatory. It was not in fact a trust nor trustee account. The witness also produced bank statements in the name of the International Museum (Australian Branch) Inc. Significantly, the only account open prior to 30 June 2000 was that in the name of the appellant.
48 Certificates under the Business Names Act 1962 (WA) were tendered showing that The Arts Foundation, The Arts Foundation (WA), The International Museum and the International Museum Touring Fund Corporation were not registered as business names from 1 January 1997 to 3 July 2001. However, The International Arts Foundation (Inc) was an incorporated body. The application had been made by the appellant and there were no other names on the application forms.
49 Clearly, all of this evidence had been pertinent to the charges as originally framed.
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50 The argument advanced on behalf of the appellant in support of this ground may be encapsulated in the proposition that the adjournment should have been granted because the amendment of the charges and the late notice of additional witnesses "denied him a defence" and denied him an opportunity to prepare a full and adequate cross-examination or to consider what evidence he might have called to refute it. It was contended that it is a settled rule of practice in Western Australia that a prosecutor should give to the defence reasonable notice of the witnesses whom it proposes to call and of the evidence which those witnesses are expected to give. The defence, it was argued, must have a sufficient opportunity to investigate matters to be covered by the evidence and of knowing what is the case to be made against them (Barton v The Queen (1980) 147 CLR 75 at 105-106).
51 The appellant relied also on R v McGill [1967] VR 683 at 685-687, to the effect that it is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon and that one of those is that an accused person (or, it was said, persons such as the appellant in this case) must be given full opportunity to present their defence. Mr Moen relied upon the observations of Steytler J in Grakalic v The Queen [2002] WASCA 139 at par 46 and the cases there cited. In passing I note that all of the authorities relied upon by Mr Moen in this regard concerned trials on indictment before a Judge and jury; and that apart, Steytler J was in the minority in Grakalic - although the principles which his Honour there outlined, may with respect, readily be accepted in relation to trials on indictment.
52 The requirements of pre-trial disclosure of prosecution evidence in relation to trials on indictment are well established. In Western Australia they are part of a statutory, common law and policy regime which does not apply in respect of summary prosecutions. Thus, the Justices Act neither requires nor contemplates the provision of prosecution witness statements to a defendant prior to a summary prosecution. Indeed, all that the Justices Act does require, is provision of the complaint, supplemented if necessary, by particulars.
53 But a defendant before a court of summary jurisdiction is still entitled to a fair trial. The rules of natural justice apply to such a prosecution (per Walsh J in Allen v Gittos (1995) 13 WAR 560). What the rules of natural justice require in a particular case will depend upon the circumstances.
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54 In the context of the present case, the question is whether refusal of the learned Magistrate to adjourn the hearing denied the appellant a fair trial because he had insufficient opportunity to know the nature of the case against him and to prepare to meet it.
55 Although the amendment of the charges was belated in the extreme and the explanation for it was unsatisfactory, her Worship had to balance a number of factors going to the interests of justice. One factor to which she obviously gave considerable weight was the fact three witnesses had come from Victoria. Her Worship had regard to the possible disadvantage to the appellant. The course she took of allowing the hearing to continue on the basis the appellant could renew his application for an adjournment at the conclusion of the witness's examination-in-chief or at the end of the prosecution case, was calculated to balance those competing considerations. She demonstrated a consciousness of the appellant's position throughout. As the evidence unfolded, it became clear there was no contest between the appellant and the prosecution witnesses about those facts which were relevant to the charges - namely the activities relied upon by the prosecution to show the appellant was carrying on business as a travel agent - as opposed to significant but essentially irrelevant matters, such as many aspects of the actual financial dealings between the scouts and the appellant and the entities upon whose behalf he was purporting to act.
56 For the rest, the evidence which the appellant suggested he would have called, was evidence which went to matters which had always been in issue. There was no basis upon which the appellant's position in that regard would have compelled her Worship to grant an adjournment.
57 In short then, the learned Magistrate's refusal to grant the appellant an adjournment at the outset of the hearing before her has not been shown to have been an erroneous exercise of her discretion. That ground fails.
Ground (c): Interpretation of the Travel Agents Act
58 This ground was described by counsel for the appellant on the appeal as "probably the most important …."
59 As expressed, the ground does not make sense. Nor does it set out any particulars of that to which it is directed. The appellant's outline of submissions postulated that the learned Magistrate "failed to interpret the Travel Agents Act …" in that she failed to consider s 4(2). It is there said she failed to turn her mind to s 4(2) but did find the appellant was acting
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- "in pursuance of his employment" with the International Arts Foundation, which was a company registered in the United States of America and "issue is taken in respect of the ability of the prosecution to have made out its case against the appellant" given that finding.
60 In the course of argument it became apparent that this ground was directed at her Worship's conclusion that for the purposes of s 4(2) a defendant would have to be an employee of a travel agent (my emphasis).
61 The starting point is the prohibition in s 7. What that section prohibits is a person carrying on a business of, or holding himself out as, a travel agent, without being the holder of a licence. That is a reference to a licence in force under Part II of the Act. It would not therefore be any defence for a person charged to show he - or the entity by which he was employed (if that was the case) - was licensed as a travel agent under the laws of another country or even of another Australian State.
62 The expression "in the course of his employment" is not defined to the Act. It must be construed in the context in which it appears and having regard to the purpose or object of the legislation (s 18 Interpretation Act (WA)). According to the preamble, the object of the Act is to provide for the licensing of travel agents and generally for the regulation of their operations and for matters connected therewith or incidental thereto. In his Second Reading Speech (Hansard, Legislative Council, 24 October 1985, p 2917) the Hon Peter Dowding, Minister for Consumer Affairs, described the Bill as being designed to protect the travel dollars of consumers dealing with travel agents and the good name of travel agents generally. He referred to the unhappy consequences to the travelling public of the financial failure of travel agents and in particular the lack of recourse where payments made for travel arrangements had been lost. He noted that many travel agent businesses which had collapsed in the past had done so because they lacked a sound financial basis and that on occasion the people involved were not fit and proper people to be charged with handling substantial amounts of the public's money. The government's intention was to regulate the travel industry, but only to the extent required to provide effective protection for the consumer. The Bill would ensure only those persons who were of good character and fit to be involved in the operation of a travel agency business and had sufficient financial resources to do so, would be licensed as travel agents. It would require membership of an approved compensation scheme. The Minister described as "a significant deterrent" the provision (s 32 of the Act) whereby profits derived from unlicensed activity may be subject to forfeiture.
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63 If the construction of s 4(2) adopted by the learned Magistrate were correct, it could only be so on the basis that the provision was seen as necessary by the legislature because without it every employee of a licensed travel agent would also have to have been a licensed travel agent. That seems to me an unlikely intention. Further, s 29 of the Act stipulates that if a licensee is not personally present and in charge of the day to day conduct of the business, or is a corporation, the licensee must employ a person with the prescribed qualifications (as to which see s 12(2)(d), (e) and (h)) to be so present and in charge. This provision clearly contemplates that employees carrying out the business of the licensed travel agent would not themselves need to be licensed.
64 It is next necessary to look at the activities which are proscribed by s 4(1)(a) - (d). They include activities which are ordinarily undertaken by employees of government departments, statutory bodies, private corporations or other businesses in respect of the staff or employees of those organisations. It is common for secretarial or administrative staff to arrange rights of passage or hotel accommodation of the like for other employees of the organisation. Without s 4(2), such activities could well put them in breach of s 7. It is that situation which, in my view, s 4(2) was intended to except.
65 So much was acknowledged by Ms Needham, counsel for the respondent on the appeal, who conceded that her Worship may well have misinterpreted this provision. She submitted the subsection protects an employee, not of a travel agent, but of an organisation where the relevant activity is undertaken as something incidental to the business of the organisation. I accept this view of the provision.
66 It follows that in construing s 4(2) as referring only to employees of a travel agent, her Worship fell into error. Her finding that (AB 309) the appellant could be employed by the Arts Foundation or the International Museum or one of the other entities mentioned by him, but (that) unless they were licensed travel agents (which they were not) he had no umbrella under which to shelter, cannot stand.
67 Her Worship's reasoning was that as the evidence established that neither the appellant nor any of the organisations he purported to represent was a licensed travel agent under the Act, s 4(2) had no application to him. The real question was whether the appellant had shown himself to be carrying on the designated activities only in the course of his employment; that is for the purposes of his employer and as something incidental to the employer's business in the sense I have described.
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68 Mr Moen's submission was that if the appellant was carrying on any of the designated activities, then the evidence showed he was doing so in the course of his employment with the International Arts Foundation and that her Worship had in fact found he was doing so in pursuance of such employment.
69 At the commencement of her reasons for decision, her Worship said that the complainant's case was that the appellant was at all relevant times working for either the Arts Foundation or the International Museum. That, I think, was a misunderstanding. The complainant's case in that regard was that although the appellant purported to act on behalf of one or other of those organisations, he was in fact acting on his own account.
70 In the course of briefly summarising the evidence, her Worship expressly referred to the appellant's claim that he was employed by the Scouts Association to make the travel arrangements and also that he was employed by the Arts Foundation and remunerated by the International Museum and that the organisations provided the charter of aircraft free to the scouts as a subsidy of their activity. As to that, her Worship expressly found the appellant was the only person who dealt with the various witnesses about the relevant travel arrangements. She found that although the appellant purported to be acting on behalf of the entities in the United States and held himself out as acting for the Arts Foundation (to which the cheques had been made payable) the bank account into which the money was paid was the appellant's own personal account, albeit belatedly styled as being his account "ATF The Arts Foundation". Looked at in context, her Worship was here finding that in his dealings with the Scouts Association, the appellant was acting on his own account, not that of some other organisation. This is confirmed by her subsequent references to "him" getting "himself" registered if he was a legitimate organisation and her finding that his story was a fabrication or he was living in fantasy land or was guilty of fraud. Her comment (AB 309) that he could be employed by the Arts Foundation or the International Museum or one of the other entities mentioned, but unless they were licensed travel agents he had no umbrella to shelter under, I would not read as detracting from that. The sense of what her Worship was saying there was simply that even if he was employed by one of those entities, it would not have availed him under s 4(2).
71 The learned Magistrate addressed the appellant's claim that such activities as he did undertake were in the course of his employment with the scouts. Her finding again was that although he was engaged by them, there was no relationship of employer/employee.
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72 On the issue whether the appellant fell within the exception in s 4(2) the onus of proof was on the appellant.
73 Proof that a person is not undertaking designated activities in the course of their employment within the meaning of s 4(2) is not a requirement that forms part of the statement of the offence: it is a true exception which serves to take a person outside the operation of the general rule (see Vines v Djordjevetich (1955) 91 CLR 512, 519-520; R v Edwards [1975] QB 27, 40). It would ordinarily be a matter peculiarly within the knowledge of a defendant. That is a strong indication that it is a matter of exception upon which the defendant bears the onus of proof (Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 per Dawson, Toohey and Gaudron JJ at 257 263).
74 Regard must also be had to s 72 of the Justices Act, which provides that:
"If the complaint in any case of a simple offence or other negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence."
75 The onus of proof upon a defendant seeking to rely on s 4(2) of the Act is a legal onus - that is to say the defendant must prove he or she comes within the exception on the balance of probabilities (Taylor v Ellis [1956] VR 457, per Scholl J at 461-463; Everard v Opperman [1958] VR 389 per Scholl J at 391; R v Fischer (1973) 22 FLR 456 and Thomas v The Queen (1960) 102 CLR 584).
76 Not only did the appellant fail to discharge the onus of proving he was within the scope of s 4(2) of the Act, it is implicit in the factual findings made by her Worship that she was positively satisfied that in undertaking the designated activities he did, the appellant was not acting in the course of his employment by any of the US based organisations to which he referred. The evidence was certainly capable of supporting that conclusion. Conversely, and in addition to that, I do not consider the evidence was capable of giving rise to the exception under s 4(2) as a matter of law. What the appellant did, in terms of making travel arrangements for the Scouts Associations, even on his own evidence, were not activities which could properly be characterised as being for the
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- purpose of carrying out his employer's business and merely incidental to it in the relevant sense.
77 It follows that even though her Worship made an error of law in her construction of s 4(2), that resulted in no substantial miscarriage of justice.
Ground (d): Failing to give sufficient reasons
78 This ground was but faintly argued. As expressed in the appellant's outline, the submission was that although the learned Magistrate gave reasons, they were not sufficient in the sense that they did not show that she was satisfied to the requisite standard of beyond reasonable doubt of the material elements of the offence.
79 Her Worship expressly found the charges to have been proved beyond reasonable doubt (AB 310). She found that the appellant had held himself out as someone able and willing to arrange large aircraft charters. Mr Moen points out that that was not the appellant's evidence. The appellant testified that the aircraft charters were in effect donated by the International Arts Foundation. But her Worship was not obliged to accept the appellant's evidence about that and she did not. There was ample evidence on which she could have found, as she did, that he held himself out to the scout representatives as being capable of organising large aircraft charters and making other travel arrangements and that he in fact did so. Those findings went to s 7(1). She expressly found he had been doing the sort of things a travel agent does, as defined in s 4(1) of the Act and that it was not only on one occasion, but on four separate occasions, which she found to satisfy the elements of "carrying on business". The reasons given summarise the relevant evidence, set out her Worship's findings of fact of law and her conclusions. They were "sufficient' in that they adequately revealed her Worship's process of reasoning and findings. There is no substance to this ground.
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Ground (e): Mistake of Fact
Ground (f): Intention of appellant
Ground (h): Fraud
80 These were argued together. The grounds refer to a mistake of law and fact, however at the hearing of the appeal counsel disavowed any reference to mistake of law.
81 Throughout the trial there was a very considerable amount of evidence about the prices, costs and expenses and financial transactions involved in the dealings between the appellant and the Scout Associations which at times appeared to be directed more to some possible fraud than to the elements of the offences charged. Most of the evidence had a bearing on the nature of the relationship between the Scouts Associations and the appellant on the question whether he was carrying on a business as a travel agent, but some aspects of it tended to show moneys paid by the particular Scouts Association had been retained or diverted by the appellant. Her Worship was alive to the potential distraction posed by this and sought several times to confine the evidence to that which was relevant to the charges. Thus, in the appellant's cross-examination of Lucas about the financial arrangements for the supposed Qantas charter for the Sydney Jamboree, she pointed out (AB 178) the detailed financial arrangements were really only peripheral. So too, in the same witness's cross-examination about the $40,400 paid by the scouts to BP Air and subsequently paid by that firm to the appellant's Arts Foundation account, when the appellant sought to cross-examine to show he had arranged event insurance at a cost, her Worship again said (AB 181) that the evidence had come in peripherally, but it was not part of the charges and she thought there was no point in "going down that track" - although the appellant did pursue it to some further extent.
82 The substance of the submission made by counsel for the appellant here was that although her Worship had told the appellant the issue whether there had been fraud or misappropriation of funds was not germane, in the end she regarded fraud as an "element of the offence" and as a consideration consistent with the appellant seeking to avoid the provisions of the Act.
83 As best as I can understand it, the submission then became that her Worship could not rely on fraud in that way unless satisfied that the appellant had "… some sort of mental intention or some sort of mental
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- element in relation to that." Reference was made to Mathews v The Queen [2001] WASCA 264.
84 An alternative submission was that her Worship "erred in her decision in failing to examine and look at the defence of honest and reasonable mistake of fact when the evidence led by the appellant supported such a defence", in support of which the judgment of Olsson AUJ in Markarian v The Queen [2001] WASCA 393 was cited.
85 The factual material upon which these submissions relied concerned what the appellant said was advice given to him and the organisations he represented by the Scouts Association to the effect that they did not need to be registered as a travel agent under the Act. In his cross-examination of Mr Adrian Walsh (who at the relevant time had been the State Commissioner of the Victorian Scouts) the appellant asked (AB 81):
"In terms of ourselves, did we provide or seek any governance from you in respect of our exposure under the Travel Agents Act; in other words, did we ask you if we needed to be formally registered and - - as a travel agent, and did you give us advice as to that?---I received no such inquiry, and had you done so, I wouldn't have been in a position to provide that advice."
86 The appellant then produced an email from Walsh dated 16 February 2000 (exhibit 9). It was addressed to the Chairman of the Scouts Association of the Northern Territory. The email read:
"… Kakadu is similar, but Victorian Scouts is in the driver's seat, organisationally. Bromley is providing some supportive elements, and providing subsidies, but we are structuring and controlling the event. I am advised that the question of the licence to sell travel doesn't arise in these circumstances, any more than it does when we run a jamboree, or, for that matter, when we organise a troop camp somewhere, and take kids by public transport. Nevertheless, my advice is that all necessary legal aspects are covered."
87 Walsh explained the email had been in response to concerns expressed by the Northern Territory Chairman about Operation Kakadu and pointed out (AB 82) that it did not assert to be advice to the appellant on the subject. In its terms, this was advice which went to the role of the Scouts Association.
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88 Fraud is not an element of either of the offences with which the appellant was charged; nor is dishonesty. The learned Magistrate recognised that. She expressly acknowledged in her reasons (AB 309) that was not something she had to determine. The appellant's complaint is that having acknowledged that, her Worship went on to say that given there seemed to be some element of fraud, that was consistent with the appellant seeking to avoid the provisions of the Act. Complaint was further made about her Worship's subsequent comment that she believed the appellant's story was a fabrication or he was living in fantasy land or had brought his fantasy world into the courtroom; it was either that or he was guilty of fraud. Either way, he had breached the Act.
89 I would not take these remarks of her Worship as expressing a finding that the appellant had been guilty of fraud. They were directed to her Worship's assessment of the appellant's credibility and indicated that she positively disbelieved his evidence.
90 It is quite artificial to seek to erect from her Worship's reference as to fraud, some notion that fraud in some way thereby became an element of the offences, requiring proof of an intent to defraud and of dishonesty and subject to a statutory "defence" under s 24 of the Criminal Code.
91 Be that as it may, s 24 of the Criminal Code would have had no application in these circumstances in any event. Even if the appellant had acted in the belief that he did not need a licence under the Act (whether based on advice from the Scouts Association or otherwise) that would have been a mistake of law, not fact. But it is clear from her Worship's reasons that she did not accept the Scouts Association had given legal advice to the appellant and that even if it had, it meant he was on notice of the Act and he could not rely on legal advice from the Scouts Association in respect of that (AB 308). It is also clear she was satisfied he had no such belief - hence her reference to fabrication, fantasy or fraud.
92 There was no requirement for her Worship to consider a "defence" of honest and reasonable mistake of fact under s 24 of the Code. On no view did that arise in respect of the offences charged. Ground (e) has no substance.
93 Nor did her Worship err in "failing to take into account the purported intention of the [appellant] when he went about fulfilling the requests made of him by the relevant Associations".
94 Quite how the appellant was submitting that should have been done was never made clear. The only relevant intent was whether the appellant
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- intended to engage in those activities which the prosecution said fell within s 4(1) of the Act. Her Worship found he did. Even if (to put it broadly) he had an actual belief he was acting honestly, that would not have afforded a defence to the charges.
95 It will be apparent from what I have said above that grounds (f) and (h) must also fail.
Ground (g): Speculation
96 Again, neither the ground itself nor the appellant's outline descends to any particulars at all about what is complained of. In his oral submissions, counsel for the appellant said there was only a small point in relation to that and identified the relevant portions of her Worship's reasons as being the passages (at AB 289) in which she said it is difficult to imagine one could charter a 747 or 767 aircraft if one is not carrying on the business of a travel agent, and that in her view it was an extraordinary state of affairs that the appellant said he could charter a jumbo jet without anything in writing. This was said to be speculative in that there was no evidence to support that view and it was contrary to the appellant's own evidence.
97 The first of the impugned passages should, I think, be read as suggesting no more than a view that it is difficult to imagine the chartering of such aircraft to be anything other than an activity which would constitute carrying on the business of a travel agent and which would require compliance with the Act. Subject to the question whether, in a particular case, the defendant was excepted under s 4(2) because the activity was in the course of his employment and incidental to it, the observation is unexceptionable.
98 As to the second passage, Lucas' evidence was that prior to and following the successful "Desert Storm" event in October 1998 in the Northern Territory arranged by the appellant, there were discussions between the Victorian Scouts Association and the appellant about the Arts Foundation facilitating the chartering of aircraft to take Victorian scouts to the Sydney Jamboree in January 2001. Exhibit 22 was a document confirming their agreement to do that, by way of a new airline called "Charity Airlines: SJ Bromley Youth Trust Inc", that might be able to provide tickets at 30 per cent of the usual cost. Eventually the Scouts Association entered into a contract with the Arts Foundation, the SJ Bromley Trust and the International Museum to facilitate the charter. That was signed by the appellant on behalf of the Arts Foundation Inc.
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- The agreement was for the provision of four aircraft - two flights to Sydney and two return. The cost was $208,000. I will not canvass the evidence about the subsequent course of events, other than to observe that according to Lucas, the appellant faxed to him a copy of what he said was a draft agreement with Qantas (exhibit 27) from Mr Paul Jobson's office confirming the state of the negotiations. Lucas was concerned because the final charter figure had been amended in pen (he thought) from $160,000 to $260,000. He said the appellant told him that was the way the document had been received by him from Qantas. Lucas telephoned Jobson, who told him the figure was in fact $360,000. On that basis, and with other costs that had to be included, the cost per scout would have been higher than purchasing tickets across the counter. The charter did not go ahead. The Scouts Association made other arrangements directly with Qantas.
99 Jobson had earlier testified as to his dealings on behalf of Qantas with the appellant. Pertinently to the present point, he identified the Qantas copy of exhibit 27 which was dated 28 June 2000 and showed a total charter fee of $360,000. There was no alteration of the figure. The document was not tendered because of her Worship's view that it related to events falling outside the period covered by the charges (that is to 30 June 2000). That was not actually correct, because the point at issue was whether what was being done by the appellant between the dates charged, amounted to carrying on business as a travel agent.
100 The more significant evidence about charter agreements however, concerned the Kakadu event, in respect of which Qantas did negotiate a charter agreement (exhibit 13) in April 2000. The charterer was described as the International Arts Foundation Inc. The document followed extensive negotiations between Qantas and the appellant. He was the only person with whom Qantas dealt in relation to it. The document was extensive and addressed a range of matters, including costs, operational rules, aircraft and crew availability and airport timings. No signed copy of the agreement was ever returned to Qantas. The appellant subsequently telephoned and cancelled the charter (he said) because of cyclonic conditions in the Northern Territory.
101 Jobson also gave evidence about discussions with the appellant concerning the possibility of chartering aircraft to and from the United States.
102 This was the background of the appellant's evidence about chartering aircraft. For the Uluru activity, aircraft had been chartered from Thai
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- Orient Airlines under Merpati Airlines. The cost was $30,000 plus "$40,000 … cash in cockpit." He described a similar arrangement about chartering a 747 aircraft from Air Pacific for Kakadu, but which did not eventuate because of the coup in Fiji. The substance of his evidence about that is encapsulated in the following exchange in his cross-examination (AB 270):
"Now after the first cancellation due to the cyclone activity, you then maintain that you chartered the Air Pacific planes fro it?---Yes, cash in cockpit.
All right. And do you have any documents regarding that charter agreement here?---No. It's cash in cockpit.
Right. So you don't have a contract at all?---No. It's never done that way. International charters aren't done that way.
So basically there's just your word that that charter was made?---It's the way it's always done, yes.
Okay?---The specific term is called cash in cockpit."
Ground (i): Error of fact in concluding the appellant was carrying on the business of a travel agent
104 This ground was abandoned.
Ground (j): No justification of findings of credibility
105 The submission was that the findings made by the learned Magistrate as to the credibility of the appellant were not open to her on the evidence. In argument, it was also submitted that her Worship failed to give reasons for disbelieving the appellant, the proposition being that it was not
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- sufficient for her simply to say she did not believe him and that his account was fabricated, fantasy or fraudulent.
106 The hearing before her Worship extended over two days of evidence. The appellant cross-examined prosecution witnesses at length and gave evidence himself. Her Worship had ample opportunity to appreciate what he was putting forward and to form a view of his credibility both from the content of his evidence and his demeanour. He clearly made a most unfavourable impression upon her as a witness. His evidence frequently conflicted with that of other witnesses. Other parts of it may well have struck her Worship as being unlikely and lacking credibility for that reason (her reference to the "cash in cockpit" charters is probably an example). His evidence about the organisations he purported to represent was, on any view, unsatisfactory. It was not supported by any credible documentation nor other evidence.
107 On the evidence as a whole it simply cannot properly be said that it was not open to her Worship to take the view of the appellant's credibility that she did.
108 Nor, in my opinion, was her Worship obliged to express in more, or any particular, detail, her reasons for taking that view. For her to say that as she observed and listened to his evidence, she thought he was not telling the truth, would hardly have advanced the matter.
109 There is no merit in this ground.
Conclusion: Appeal against conviction
110 With the exception of ground (c), none of the grounds advanced in support of the appeal against conviction have been made out. So far as ground (c) is concerned, although her Worship did err in the construction of s 4(2) of the Act, in the circumstances that did not result in any substantial miscarriage of justice (see s 199(1)(b) of the Justices Act).
111 The appeal against each conviction will accordingly be dismissed.
Appeal against sentence
112 The grounds of appeal are:
"(a) The sentence imposed was manifestly excessive in all the circumstances of the case.
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- (b) The learned Magistrate imposed a fine because she attributed aggravating factors such as other counts, which had never been charged against the Applicant.
Particulars:
(i) the learned Magistrate came to the view that the Applicant had committed a number of other offences contrary to the Travel Agents Act, some four in number, yet he had only been charged with two therefore, the learned Magistrate came to a view in her sentencing discretion that took into account the aggravating factors when in actual fact she should not have; and
(ii) the learned Magistrate took into account the fact that it appeared as though the Applicant had committed a fraud.
(c) Having regard to similar sentences imposed for these types of offences and the penalties described by the legislation, the penalty imposed in this case was far in excess of what should have been imposed.
(d) The learned Magistrate failed to take into account any matters of mitigation in favour of the Applicant.
(e) The learned Magistrate erred in imposing such a hefty and significant costs order against the Applicant when such costs order was neither justified nor permitted pursuant to the relevant legislation.
(f) The order for restitution was not the correct amount of monies to be ordered for restitution."
113 The statutory maximum penalty for an offence under s 7(1) of the Act is a $50,000 fine or 12 months imprisonment, or both. For an offence under s 7(3) the statutory maximum is a fine of $25,000 or 6 months imprisonment, or both.
114 Both counsel informed me that there were no other cases involving the imposition of punishments under these provisions.
115 I propose to deal with the grounds of appeal globally.
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116 The starting point is said to be that her Worship made no findings of any mitigatory factors and that the fines were manifestly excessive because there was no dispute the appellant was acting in a bona fide capacity for the purposes of arranging the relevant journeys. Mr Moen contested her Worship's finding that the Scouts Association did not give legal advice to the applicant - he submitted the evidence showed he certainly did obtain legal advice from the Scouts Association, which was to the effect that all necessary legal aspects were covered. It was then said the appellant gained nothing personally because the evidence was that the money was never paid to him by the Scouts Association but went to the International Arts Foundation. That Foundation was said to be a philanthropic organisation which had a sound working relationship with the Scouts Associations. Mr Moen complains that her Worship failed to have regard to any mitigating factors at all and in particular, that when the appellant tried to mention mitigatory matters, her Worship cut him off.
117 Following brief submissions from the prosecution (the transcript of which contains so many indecipherable portions that it is completely incomprehensible) the following occurred (AB 311-312):
"HER WORSHIP: Yes, Mr Bromley, do you want to say - - do you have any criminal record?
MR BROMLEY: No, I don't ma'am. … (indistinct) …
HER WORSHIP: Now, you're going to Laos on Thursday, you're saying?
MR BROMLEY: Well, I was going overseas but I can defer … (indistinct) …
HER WORSHIP: And you've indicated that your umbrella bodies have funds up to $2 million for philanthropic purposes, so given that your remuneration is not of a high amount, I'm just wondering whether they're likely to pay any fines for you that might be imposed?
MR BROMLEY: Yes, they will, ma'am. … (indistinct) … I just wish the court to view the generous support that we give the scouts … (indistinct) … is always giving and that's just our … (indistinct) … scouts have … (indistinct( … very generous, very giving, and it's just unfortunate that this has occurred.
PROSECUTOR: … (indistinct) …
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- MR BROMLEY: Bit (sic) it does have implications.
HER WORSHIP: It's still - - I find it quite amazing really that you purported to do all these things but the reason this all started was because some scouts leader approached you at an arts exhibition and there was not advertising.
MR BROMLEY: Yes.
HER WORSHIP: I would have thought if this was legitimate there would be youth groups all over the county falling over themselves to get free charter flights all over the place - -
MR BROMLEY: Well, they do, yes.
HER WORSHIP: - - but anyway, I don't suppose we should go into all of that.
MR BROMLEY: Yeah, they do. The girl guides have approached us. Many other organisations … (indistinct) … and even in evidence there was - - the large donations we've given to the West Australian museum … (indistinct) … exhibits but certainly any judgment by the court in terms of fines … (indistinct) …
HER WORSHIP: All right. Well, these are the orders, that the costs sought include disbursements of just over $6000. But there is no cost scale and I have to be guided by the only scale there is, which is the Official Prosecutions Defendants Costs Act so that the award I will make, given this has gone over two whole days and this morning, is a total cost sought of $9000 which includes $6081 in disbursements, so it's really $3000 in legal costs on top of that.
I am prepared to order forfeiture of the amount that Mr Bromley admits is left over after Operation Kakadu of $89,000 which is sitting in a trust account in the USA to the Scouts Association of Victoria, and then in terms of penalty, there will be a fine of $10,000 in respect of the charge - - or conviction under section 7(1) and $5000 under section 7(3) which is a total fine of $15,000.
However, in view of the fact that Mr Bromley only resides in West Australia for three or four months of the year as (sic)in
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- planning an overseas trip shortly, the order I'm also going to make under the Sentencing Act is that - - this is section 58 of the Sentencing Act, is that the defendant has to be detained in custody until the fine is paid. That is the fine only, not the costs and the order for forfeiture.
So until the fine of $15,000 is paid the defendant will be imprisoned but that period of imprisonment will not exceed in any event the period of 4 months."
118 Counsel for the appellant's submission, as I apprehend it, was that when imposing penalties, there is an obligation on an Magistrate to expressly make findings and address mitigatory issues. I shall deal with that first.
119 In Nevermann (1989) 43 A Crim R 347, Malcolm CJ held that the obligation to give reasons extends to the sentencing process and to Courts of Petty Sessions.
120 Nevermann was an appeal against a sentence of 6 months imprisonment imposed in the District Court. The learned trial Judge had failed to make any findings of fact whatsoever for the purposes of imposing sentence. He had simply castigated the offender in general terms and then stated the sentence.
121 Malcolm CJ said (349):
"Upon conviction for an indictable offence in the District Court or the Supreme Court an offender is liable to be sentenced to imprisonment, payment of a fine or made the subject of a probation order with or without a community service order or placed upon a bond to be of good behaviour. The consequences of conviction may include loss of liberty. In my view the responsibility of a judge when determining what sentence to impose is a serious one. The proper discharge of that responsibility requires that the judge should state succinctly in open court the grounds upon which he imposes sentence. As this Court said in Laporte [1970] WAR 87 at 89:
'Once the jury have convicted an accused person, it is solely for the judge to decide what sentence to impose. For this purpose he must form his own view of the facts, providing that he does not form a view which conflicts with the verdict.'
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- The decision what sentence to impose involves the exercise of a discretion based upon the relevant facts as found by the sentencing judge. Consequently the process of reasoning needs to be revealed. In my opinion a sentencing judge, no less than a trial judge has a duty to reveal his reasons."
122 His Honour then referred to a number of authorities expressing the obligation of courts to give reasons. He concluded (350) that the remarks to that effect made in the civil cases apply as much to the reasons for imposing sentence as they do to any other judicial decision which may affect the liberty, rights, duties, status or property of any person. The public has the right to know the reasons for the sentence imposed. The Chief Justice further observed that his comments applied to the necessity to make findings of fact after a plea of guilty, and went on to say:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail."
123 Wallace J did not deal with the question of the adequacy of the reasons of the trial Judge. Brinsden J said it was "unfortunate" that his Honour had not set out the facts in his sentencing remarks. He added (354):
"It is, I believe, necessary for a sentencing judge to set out, in broad outline, the facts of the case so that should the matter go on to appeal, this Court can discover the facts without the tedious job of going to the transcript in the case of a trial or the depositions or hand-up brief if there has been a plea of guilty. Furthermore, I understand the Parole Board has regard to the sentencing remarks of the trial judge when it comes to consider how it should deal with a prisoner and it is useful to the Board for there to be a statement of the facts within the sentencing remarks."
124 That last observation obviously has application only where a sentence of imprisonment has been imposed; nonetheless, the point about appeal is of general application.
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125 The obligation to give reasons extends even to lay justices. In Donovan v Edwards [1922] VLR 87 the applicant had been convicted of supplying liquor from licensed premises during prohibited hours. The justices gave no reasons. When counsel asked them to give reasons the Chairman said some wanted to and some did not; that he knew the Chief Justice had said that reasons should be given, but for his part he never gave reasons and was not going to do so in this case.
126 In making absolute the order nisi to review, Irvine CJ said (88):
"This case is another instance of the embarrassment which is caused to th eCourt by the refusal of justices to give reasons for their decisions. The Chairman of the Bench, Mr. Philpott, J.P., appears to have not only refused to give his own reasons, but but to have dissuaded his brother justices from doing that part of their duty. And it is no justification to Mr. Philpott for his breach of duty on this occasion for him to state that he has always been guilty of a similar breach of duty on prior occasions. I have to repeat again that, in the exercise of their judicial functions, justices are not exempt from the duty which attaches to every judicial officer to state, to the best of his ability, the facts he finds, and the reasons for his decision."
127 In my view it is at least desirable and in most cases will be necessary, for Magistrates to give reasons for sentence, for the reasons explicated by Malcolm CJ in Nevermann. But as his Honour there said, that can be done briefly and succinctly, albeit at least with sufficient particularity to enable an offender to know the relevant considerations essential to the outcome.
128 Nevermann concerned an appeal from a District Court Judge following trial before a jury. There were accordingly no reasons for decision other than the brief sentencing remarks of the trial Judge. Even so, the Court of Criminal Appeal was unanimously of the view that there was nothing to suggest his Honour had made any specific error of law or fact, that a punishment of imprisonment was appropriate and the actual term could not be said to be excessive. The appeal was dismissed.
129 In the instant case there had been a full trial before her Worship and she had delivered a reasoned judgment. Her findings and observations as there expressed, must be taken as applicable also to her sentencing disposition.
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130 So far as mitigatory factors were concerned, her Worship was well aware of the appellant's assertion that the organisations he purported to represent were philanthropic bodies which had given generous support to the Scouts. It is apparent she was not particularly accepting of that, but was very conscious that fraud was not an element of the offences. As I read her comment (at AB 312), that:
"… I don't suppose we should go into all of that."
- she was indicating that she should not impose punishment on the basis the offences involved (or might have involved) fraud. That was a correct approach and was favourable to the appellant's position rather than otherwise.
131 It was not incumbent upon her Worship to take into account as mitigation, that the appellant had obtained legal advice from the Scouts Association and acted on that. She had already found the facts to the contrary.
132 Likewise, no mitigatory force was to be drawn from the evidence that the money had gone to the Arts Foundation. In fact (again as her Worship found) the money went into the appellant's own personal account, which had been styled "ATF International Arts Foundation".
133 The fine of $10,000 on the first charge was one-fifth of the maximum fine. An offence under that section - noting that fraud is not an element - could attract a punishment of a $50,000 fine and 12 months imprisonment. Likewise, the fine in respect of the second offence was also one-fifth of the maximum fine.
134 Given the nature, extent and scope of the designated activities undertaken by the appellant and that they were not isolated instances but part of a course of dealing by the appellant with the Scouts Associations over a period of years, the fines cannot be said to be excessive (much less manifestly excessive) nor to be disproportionate to his offending. That is so particularly when it is appreciated that his conduct resulted in the very consequence that the prohibition was intended to avoid, namely, loss of client funds paid to a person carrying on business as a travel agent (whether involving fraud or not).
135 As to ground (b)(i) it was appropriate for her Worship to take into account the appellant's dealings with the Scouts Association with respect to Operation Desert Storm, the "Space Camp" at Rottnest Island and the Sydney Jamboree, as indicating that his dealings with them in respect of
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- Operation Kakadu was part of a course of conduct constituting "carrying on business". That is the only forensic purpose for which she had regard to those other matters and there is nothing to suggest she took them into account in any inappropriate way when sentencing the appellant.
136 As to ground (b)(ii), as set out above, I consider what her Worship said indicated she was consciously putting to one side and disregarding, when sentencing, any consideration that the appellant may have committed a fraud.
137 Nothing was advanced in support of ground (e) which went beyond what was asserted in the ground itself and that the total costs awarded was "exceptionally high". I was informed from the bar table that a document setting out the prosecution costs had been handed to her Worship, but that was not before me. Bearing in mind the hearing extended over two days and into a third, that there were seven prosecution witnesses and three of those had to be flown from Victoria (and probably accommodated in Perth), disbursements of $6081 would not seem unreasonable as nor would legal costs of $3000, which would include preparation and hearings.
138 Ground (f) was not pursued before me.
139 For the reasons set out above, I am not persuaded the learned Magistrate erred in imposing the fines and making the orders she did. I would dismiss the appeal against sentence.
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