Calegeros v Attorney-General (Cth)

[1953] HCA 57

88 C.L.R.]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

CALEGEROS A p p e l l a n t

;

AND

ATTORNEY-GENERAL FOR THE COMMON­

^ R e s p o n d e n t .

WEALTH OF AUSTRALIA .

.

Bankruptcy—Sequestration order—Bankrupt—Failure to make full discovery—• “ All his property ”—“ Fully and truly discover ”— Obligation of bankrupt—

H. C. OF A.

1953.

Intent to def raud creditors—Public examination— Omission to discover property—

Depositions—Bankruptcy Act 1924-1950 {No. 37 of 1924—No. 80 of 1950),

Sy d n e y ,

Aug. 27 ; Sept. 11.

ss. 68, 210 (1) (a)*, (6).

Sub-section (1) (a) of s. 210 of the Bankruptcy Act 1924-1950 is not restricted in its operation to property which is shown to be the property of the bankrupt

Williams,

Webb and

at the commencement of the bankruptcy, but applies to all omissions to dis­

Taylor JJ.

cover which the bankrupt makes with intent to defraud his creditors, or, as provided in sub-s. (6), with intent to dishonestly conceal the state of his affairs or otherwise violate or defeat the law.

Beg. V . Michell (1880) 43 L.T. 572 ; 50 L.J. (M.C.) 76, foUowed.

There is a failure to make a full and true discovery within the meaning of s. 210 (1) (a) only when, having the obligation and opportunity to make such discovery, the bankrupt fails to do so. Section 210 (1) (a), therefore, does not relate to a failure to disclose information in the course of a pubhc exam­ ination where the bankrupt is not asked questions a full and true answer to which would require him to make the disclosure.

R. V. Wimpole (1931) V.L.R. 201, referred to.

Decision of the Federal Court of Bankruptcy {Clyne J.) affirmed.

Section 210 (1) of the Bankruptcy

consideration, he disposed of any part

Act 1924-1950 provides :—“ Any bank­thereof, except such part as has been

rupt who—(tt) does not, to the best of disposed of in the ordinary way of his

his knowledge and belief, fully and trade (if any) or laid out in the ordinary

truly discover to the trustee all his expense of his family . . . shall be

property, real and personal, and when, guilty of an offence. Penalty; One

how, and to whom, and for what

year’s imprisonment.”

HIGH COURT

[1963.

H. C. OF A.

A p p e a l from the Court of Bankruptcy.

1953.In a compulsory application by Raymond Stanley Calegeros

Calegbros(also known as Stan Dennis) for an order of discharge, the Court of

V.Bankruptcy charged him with an offence against s. 210 (1) (a) of

Attorney-

Generalthe

Bankruptcy Act 1924-1950, “ that being a bankrupt against

FOR THE

whojn a sequestration order was made on 18th February 1952,

Common­

wealth OF you did not to the best of your knowledge and belief fully and truly

Australia.discover to the Trustee of your estate the sum of £4,050 being part

of a sum of £4,500 in cash withdrawn by you from your banks and when how and to whom and for what consideration you disposed of such sum ” .

In support of the charge it was alleged that Calegeros withdrew from the Commercial Bank of Australia Ltd., Kings Cross, from an account which he had in the name of Stanley Raymond, three sums of money, namely £3,500 on 28th July 1951, £2,500 on 30th July 1951, and £1,000 on 31st July 1951, and accounted for £4,500 by saying that he paid that amount to one Nicholas Keketes, whereas in fact Keketes was paid £450 and no more.

Clyne J. found Calegeros guilty of the charge and ordered him to be imprisoned for three months.

Calegeros appealed to the High Court.

Further facts appear in the judgment hereunder.

R. Else-Mitchell, for the appellant. An appeal from the Bank­ ruptcy Court on a criminal matter is a full appeal on both law and fact {House v. The King (1) ). In view of the fact that the bank­ rupt did not give evidence before the judge, his depositions taken on his public examination only being tendered, and in view of the evidence and cross-examination of Keketes there was not a case made out beyond reasonable doubt. The offence charged is triable both summarily and on indictment. There are provisions in the Bankruptcy Act 1924-1950 which in certain circumstances enable it to be dealt with summarily. For that reason the standard of proof is the criminal standard, that is, that if there is a reasonable hypothesis, on all the evidence, which is consistent with the innocence of the accused, he is entitled to be acquitted. In this case there is a conflict of evidence. There are two explanations before the Court, the evidence of the witness Keketes and the evidence of the bankrupt. The existence of an irreconcilable conflict between them is the whole basis of the charge. This is not merely a question of who shall be believed ; it is a case where the lack of belief in one story is the basis of the charge, because

(1) (1936) 55 C.L.R. 499.

88 C.L.R.] OF AUSTRALIA.

43

the charge is that he did not truly and fully discover, and that

H. C. OF A.

1953.

must be established as part of the charge.

There being a conflict

between the two, tha t conflict cannot be sustained if there is in­

Calegeros

dependent evidence which points to the bankrupt’s evidence being

V.

Attorney-

more rational. Normally where there is a conflict o f evidence

General

courts will look to written documents to try to resolve the conflict FOR THE

C oaiM O N -

or to satisfy themselves which of the conflicting explanations is

WEALTH OF

correct. Here the document supports the appellant’s explanation

Australia.

unquestionably. The document is not a forgery. Even if it were doubtful the doubt would support the appellant. The evidence of the witness was not consistent with the document. The form in which s. 210 of the Act is cast, in its subdivision into three sub­ sections, is a significant matter with respect to the construction that should be afforded to s. 210 (1) {a). The offences set out in sub-s. (1) are offences which may be committed by a bankrupt who does certain things, and with the exception of par. {g), and apart from par. [a), they deal with the bankrupt’s conduct as a bankrupt after his estate has been sequestrated, and in respect of property in possession before or after the sequestration. Those provisions have been taken with substantial variations from the English bankruptcy statutes commencing in 1849 and now contained in the Bankruptcy Act 1914-1949 (Imp.), s. 154 : see Williams on Bankruptcy, 16th ed. (1949), p. 526. The provision as to limit of time finds its way into the sub-sections there appearing. The im­ portance of that is that it has resulted, under the English Act, in a construction of sub-s. (1) of s. 154, which is the equivalent of par. (a) on a basis that can extend to property before sequestration and which never vested in the trustee, and purely on a construction by reference {Reg. v. Michell (1) ). In that case it was decided that the disclosure was not restricted to property in possession of the bank­ rupt at the commencement of his bankruptcy : see also Halsbury’s Laws of England, 2nd ed., vol. 2, p. 459 ; 3rd ed., vol. 2, p. 627. The true construction of s. 210 does not admit of any construction by reference. All property in s. 210 (1) (a) must mean property of the bankrupt which vests in the official receiver. If that be not the construction, then a most absurd result would follow : the offence of failing to disclose would extend to all property which the bankrupt may have had at any time, no matter how remote, because there is not any provision in s. 210 (1) by which any time limit antecedent to seque.stration can be imposed on the property as to which the discovery is to be made. There is not any prohibition on the bank­ rupt carrying on trade after sequestration, nor on him maintaining

(1) (1880) 50 L..J. (M.C.) 76 ; 43 L.T. 572.

44 HIGH COURT

[1953.

H.C. OF A.his family out of personal earnings or income after sequestration,

1953.accordingly there is nothing in that provision from which it can be

Ca lKoEROSinferred, or a reasonable implication can be drawn, that the phrase

V.“ all his pro})erty, real and personal ” is to extend to all the property

Attornky-

(Ienehal

which the bankrupt has had at any time, irrespective of how long

FOR THE before sequestration. Jt means property of which he was possessed

OOiMMON- at the date of the commencement of the bankruptcy. Paragraph

WEALTU OF

AV STRALIA.(«) of s. 210 (1) is in a sense exclusive of par. (g) of that section. Paragraph {g) imposes or creates the offence with respect to a period of time before sequestration, whereas par. (a) does not in terms purport to do so at all. Any construction of the Act of extension by reference prior to the bankruptcy is not permissible under the English Act. “ His property ” in s. 210 (1) (a), at least, must be restricted to property of a character which would vest {Nassoor v. Nette (1) ). Trust property will not vest. If s. 210 (1) (a) is to be read to the full as meaning his property at any time past irrespective of what character or what estate or interest he holds in it it would oblige a personal trustee who became bankrupt to disclose the whole extent of all the trust relationships. The decision in Reg. v. Tempest (2) may be of assistance to the Court on the meaning of “ his property ” . The section does not apply to a failure to discover in the course of an examination but it refers to and is restricted to discovery to the trustee. Another significant matter to be regarded is again a comparison of par (a) of s. 210 (1) and par. {g) of that section. In the one case they do cover com­ parable, although, it is conceded, not identical, ground. In the one it is discovery to the trustee ; in the other it is a failure to give to the court an account. That distinction can be found in other provisions of the Act, e.g. ss. 66, 68, 69 and 76. Those provisions, in a comparison, distinguish between the duties that are owed to discover to the court, and the duties of disclosure which are owed to the trustee. The respective counterpart is found in s. 210 (1) when it deals in par. {a) with the duty to the trustee, and in par. (g) with failure to give to the court a complete and satisfactory account of loss of any substantial portion of his estate ; see R. v. Wimpole (3). The only non-disclosure or failure to disclose was on an examination before the court, the examination being one of which the court had control and in which the trustee was participating, therefore it could not constitute a failure to disclose or discover. Section 210 (1) (a) is not in reality directed to creating an offence of giving false evidence and if it is to be applied in the way in which it is

(1) (1937) 58 C.L.R. 446, at p. 466.

(3) (1931) V.L.R. 201, at [>[). 205,

(2) (1877) 3 V.L.R. 329.

206.

88 C.L.R.] OF AUSTRALIA.

45

applied here, in effect it is covering ground that is already covered

H. C. OF A.

adequately by other legislation, mainly by provisions of the

1953.

Bankruptcy Act itself, e.g. ss. 68, 80, and the Crimes Act 1914-1950

Calegeros

(Cth.), s. 35. The observations which appear in

V.

R. v. Adams (1)

Attorney-

are applicable to the ambiguity and vagueness of the expression General

FOR THE Common­

in s. 210 (1) [a) which it is claimed constitute an offence of which

the banlvrupt was guilty in this matter.wealth OF

Australia.

J . K. Manning Q.C. (with him E. M. Martin), for the respondent. Having regard to the history of s. 210 (1) (a) of the Bankruptcy Act 1924-1950 the words “ his property ” cannot have the construc­ tion of meaning property divisible by his creditors, as defined. The appellant’s construction is in direct conflict with Reg. v. Michell (2) which should be followed by this Court. The non­ disclosure must be one that the accused is unable to prove was

not fraudulent.

The word “ property ” was dealt with in ss. 154

and 164 of the Bankruptcy Act 1914 (Imp.). Where there is a reference to any part of his property or his property in a series of sections, the words “ his property ” used consistently throughout should be given the same meaning : see s. 210 (1), (2), 212 (1) (c) and 215. The property mentioned in s. 215 would not be limited to the property of the bankrupt within the meaning of s. 91. The expression “ his property ” where used in s. 215 is an expression not intended to be synonymous with the property of the bankrupt. Paragraph {g) of s. 210 (1) has no counterpart in the Bankruptcy Act 1914-1949 (Imp.). The use of the expression “ the property of the bankrupt ” in s. 91 is not found in these provisions. There is to be found throughout the provisions a use of the expression “ his property ” which at least in some respects clearly does not apply to the expression “ the property of the bankrupt ” as so defined. The absence of the expression from Pt. XIV is warrant for assuming that it is not intended to be limited as in s. 91. The remarks of Stephen J. with respect to the definition of the word “ property ” in Reg. v. Michell (2) are directly in point in this case. That case is the only case directly on the point and should be followed by the court. If a person has had property outside the period of relation back and has disposed of it in a way, for instance, that would enable the trustee to recover it for the benefit of his creditors as a settlement or as a property which has been conveyed away in defraud of creditors, there is an obligation upon the bank­ rupt to disclose i t ; failure to do so is the very thing at which this

(1) (1935) 53 C.L.R. 563, at pp. 567-

(2) (1880) 50 L.J. (M.C.) 76 ; 43 L.T.

568.572.

HIGH COURT

[1963.

H. C. OF A.

section strikes. The non-discovery was in his statement of affairs,

1953.but, even so, the filing of the statement of affairs was something filed

Calegeros

in court pursuant to a statutory obligation. The problem in this

V.case is entirely different from the problem in Reg. v. Tempest (1).

Attorney-

GeneralParagraphs {a) and (b) of s. 210 (1) are intended to be complemen­

FOR THEtary, one to the other, and to cover the field which comprises not only

wealth OF the position as at the date of the sequestration, a t which stage he is Common­

Australia.required to deliver up to his trustee all his property then in his

possession or under his control, but a discovery of what has gone before, not only back to the date of the act of bankruptcy but at the time when the failing to make that discovery would result in a fraud upon the creditors. The conduct by a trustee of an examination under s. 68 of the Act, at which the trustee has a statutory right to appear and to ask questions, must be part of his inquiry into the affairs of the bankrupt, and the answers that the bankrupt is required to give on that examination must be part of the discovery he makes to his trustee of his property and affairs. Section 76 in express terms requires the bankrupt to, inter alia, submit to examinations, &c., as required by the official receiver, or trustee, or as prescribed or directed by the court. These are duties which are imposed upon the bankrupt not in relation to any one particular duty, (a) to the court, and (b) to the trustee, but general duties in the course of which the court wants to be satisfied on certain matters, and the trustee is entitled to make inquiries on certain matters. The decision in R. v. Wimpole (2) is correct. There was ample material to justify the finding of the court below, and this Court will not interfere.

R. Else-Mitchell, in reply. The real question is ; to what remote point of time are the obligations under s. 210 (1) {a) extended ? The fact that the context in the Act under consideration in Reg. v. Michell (3) is so different makes impossible the application of that case to this Act, even wfith the addition of par. {g). The way it is now framed means that fraudulent conduct does not constitute an element of the offence, but disprove the fraudulent conduct or disprove the fraudulent intent and it may be an offence. An important difference is that when the width of the provision is looked at every non-disclosure is an offence unless and until the person charged proves the contrary. Dispositions which divested property were dealt with in relation to other provisions in Reg. v.

(1) (1877) 3 V.L.R. 329.

(3) (1880) 50 L.J. (M.C.) 76 ; 43 L.T.

(2) (1931) V.L.R. 201.

572.

88 C.L.R.]

OF AUSTRALIA.

Creese (1) and R. v. Humphris (2). The control which the court

H. C. OF A.

has over the examination of the debtor involves totally different

1953.

considerations from the control which a trustee has over the bank­

Calegeros

rupt. The court does not need any provision of tha t sort in order to enable it to get the truth from a person in course of examination

V.

Attorney-

General

under oath.

The court has adequate remedies in the existing law—

FOR the Common­

the Crimes Act and the Bankruptcy Act and its own powers to punish wealth OF

acts which constitute contempt. To deal with prevarication the

Australia-

court does not need any assistance such as that but the trustee does, and tha t is why the distinction made is a sound one and should be adopted. Section 210 (1) (a) was considered in Phillis v. The King (3).

[Williams J. referred to Macedo v. Stroud (4).]

That was discussed in Brunker v. Perpetual Trustee Co. {Ltd.) (5).

Cur. adv. vult.

The Court delivered the following written judgm ent;—■

Sept. 11.

The abovenamed appellant was charged under s. 210 (1) (a) of the Bankruptcy Act 1924-1950 for that being a bankrupt against whom a sequestration order was made on 18th February 1952, he did not to the best of his knowledge and belief fully and truly discover to the trustee of his estate the sum of £4,050 being part of a sum of £4,500 in cash withdrawn by him from his banks and when how and to whom and for what consideration he disposed of such sum. At the conclusion of the hearing Clyne J. found the appellant guilty of the offence charged and sentenced him to imprisonment for a period of three months.

I t is from this conviction and sentence that the appeal is brought but before referring to the grounds which have been argued on the appellant’s behalf it is desirable to refer to the circumstances which gave rise to the charge.

As appears from the terms of the charge the sequestration order which was made against the appellant was made on 18th February 1952, and this order was made on a petition presented on 30th January 1952. At the commencement of the hearing of the charge against the appellant his counsel sought particulars and in response to this application the Court was informed that the sum of £4,500 was part of a total sum of £7,000 which the appellant had with­ drawn from an account which he had in an assumed name at the

(1) (1874) L.R. 2 C.C.R. 105.(4) (1922) 2 A.C. 330.

(2) (1904) 2 K.B. 89.(6) (1937) 57 C.L.R. 555.

(3) (1941) 15 A.L..J. 191.

48 HIGH COURT

[1953.

H.C. OF A.Kings Cross branch of the Commercial Bank of Australia. This

1953.total amount was withdrawn in three sums, namely, £3,500 on

Caleqeros28th July 1951, £2,500 on 30th July 1951, and £1,000 on 31st

V.July 1951. Upon his public examination the appellant admitted

Attorney-

Generalto counsel for the trustee in bankruptcy that he had withdrawn

FOR THEthese sums and wlien asked to account for them he claimed that,

wealth OF as to £4,500 thereof, he had paid that amount to one Nicholas Common­

Australia.Keketes. According to the appellant’s evidence on his public

Williain.s J. examination Keketes had entrusted him with a motor car for sale,

Webb J.

Tavlor J .which car apparently had been unlawfully imported from the United States of America, and having made a sale of it for £4,500 and received the purchase money, he paid that sum over to Keketes and received a receipt for that amount.

The relevant portion of the evidence given by the appellant on his public examination was tendered on the hearing of the charge and Keketes was called to give evidence. The appellant did not give evidence on this occasion. On the evidence of Keketes there is no doubt that the appellant had had in his possession an imported motor car which he eventually sold for a large sum. There is evidence that that car was sold to one Shaw and that his cheque for £4,500 was paid into the appellant’s bank account on 27th July 1951. But Keketes asserted in evidence that the car was not his property but, on the contrary, belonged to the appellant and that, although apparently he had been induced to allow his name to be used in connection with the importation of the car because, as the appellant told him, he had the right, as an American citizen, to bring a car to Australia, he had no interest in the car or its disposal. '

Keketes, however, said that he received the sum of £450 from the appellant and claimed that this was, in part, repayment of a loan of 2,000 dollars which he had made to the appellant in the United States of America. In support of his version the appellant had produced to the Official Receiver a receipt dated 31st July 1951, in the following terms : “ Received £4,500 Os. Od. Payment in full from S. R. Dennis for Cadillac Convertible Reg. No. AAN044.

Nick B. Keketes.”

The name “ S. R. Dennis ” was one of the names

by which the appellant was known. Keketes maintained that the receipt was not in this form when he signed it. The body of the receipt is in the handwriting of the appellant and Keketes said that when he signed it the amount shown was £450 and only the first line of the body of the receipt had been written in. The receipt, on its face, bears no sign of any alteration and the appellant denies that it was altered at any time after its execution. In the result Clyne J. agcepted the evidence of Keketes and disbelieved

88 C.L.R.] OF AUSTRALIA.

49

the appellant and accordingly found the appellant guilty of the

H. C. OF A.

offence charged.

1953.

The first ground of appeal which was advanced on behalf of the appellant was that the finding of Clyne J. was against the evidence

Calegeeos

V.

Attoeney-

and the weight of evidence. Whilst conceding that if the contest

Geneeal

in the court below had simply been between the oral evidence

FOE THE Common­

given on the one hand by Keketes and, on the other, by the appellant wealth OF

it would not be proper for this Court to interfere counsel for the Ahstealia.

appellant laid great stress on the existence of the receipt given by

Williams J.

Webb J.

the former. I t bears no sign of alteration and, it was contended,

Taylor J.

irresistibly supported the version given by the appellant on his pubhc examination and discredited Keketes. The evidence shows, however, that the capacity of the latter to read or write in the English language is extremely limited. Nevertheless Keketes categorically declared that the receipt when signed by him was for only £450. We see no reason, however, why the form of the receipt should require us to differ from the conclusion to which, on the facts, Clyne J. came. The receipt was merely one feature of a case in which the decision on the facts was peculiarly a matter for the tribunal before which Keketes was examined and cross- examined. Moreover, it is not unimportant to observe, the appellant himself did not give evidence on the hearing of the charge against him and reassert the truth of the version which he had given on his pubhc examination. I t may perhaps be said that it was unnecessary for him to enter the witness box merely for the purpose of reiterating his previous evidence but this evidence had been given some time before in the registrar’s court and his failure to reassert it on oath on the hearing of the charge not only deprived Clyne J. of a full opportunity of evaluating his evidence, but in a measure at that stage, left the evidence of Keketes uncontradicted. In the circumstances, we do not think that we should interfere with the findings of fact made by Clyne J.

The next submission made on behalf of the appellant was con­ cerned with the interpretation of s. 210 (1) (a). The obligation created by that sub-section fully and truly to discover “ all his property ”, it was argued, extends only to property passing on bankruptcy to the official receiver and since, in this case, there was no evidence that the sum of £4,500 fell within this category the charge was not made out. In support of this contention we were referred to prototypes of the sub-section in some of the earlier Imperial bankruptcy statutes. Section 221 (2) of the Bankruptcy Act 1861 (Imp.) (24 & 25 Viet. c. 134) provided, in effect, that

VOL. LXXXVIII.—4

50 HIGH COURT

[1953.

H.C. OF A.any bankrupt who, with intent to defraud or defeat the rights of his

1953. creditors, should not, upon his examination fully and truly discover,

Calegerosto the best of his knowledge and belief, all his property, real and

V.personal, inclusive of his rights and credits, and how and to whom,

Attorney-

Generaland for what consideration, and when he disposed of, assigned, or

FOR TREtransferred any part thereof, except such part as has been really

wealth OFand bona fide before sold or disposed of in the way of his trade Common­

At7 STRALIA.or business, if any, or laid out in the ordinary expense of his family,

Williams .T. should be guilty of a misdemeanour and should be liable at the

Webb .T.

Taylor J. discretion of the Court before which he should be convicted to a prescribed punishment. The Debtors Act 1869-1949 (Imp.) (32 & 33 Viet. c. 62—12, 13 & 14 Geo. 6. c. 101), by s. 11 (1) provided as follows :—“ Any person adjudged bankrupt, and any person whose affairs are liquidated by arrangement in pursuance of The Bankruptcy Act, 1869, shall, in each of the cases followfing, be deemed guilty of a misdemeanour, and on conviction thereof shall be liable to be imprisoned for any time not exceeding two years, with or without hard labour ; that is to say, 1. If he does not, to the best of his knowledge and belief, fully and truly discover to the trustee administering his estate for the benefit of his creditors all his property, real and personal, and how, and to whom, and for what consideration, and when he disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade (if any), or laid out in the ordinary expense of his family, unless the jury is satisfied that he had no intent to defraud

I t was in proceedings under the latter sub-section that the case Reg. V. Michell (1) was decided. The accused had been charged with an offence under this sub-section and, in the words of Lord Coleridge, the particular question which arose for decision was whether the disclosure required by that sub-section “ is to be restricted to property which the bankrupt had at the time of his bankruptcy.” This is the very point which has been raised in the present case and in Reg. v. Michell (1) it was unanimously decided adversely to the accused. In that case Lord Coleridge said: “ The great object of sect. 11 of the Bankruptcy Act 1869 was to create several offences, into all of which fraud of the creditors enters, and in some of which it is enacted that the fraud must have taken place within the period of four months next before the bank­ ruptcy ; and if the whole section is looked at, it will be found to contain a most complete and absolute scheme providing for the discovery of the bankrupt’s property. I t seems to me perfectly plain that sub-sect. 1 of sect. 11 must relate to other property than

(1) (1880) 50 L.J. (M.C.) 76 ; 43 L.T. 572.

88 C.L.R.] OF AUSTRALIA.

51

H. C. OF A.

what the bankrupt has at the time of his bankruptcy.

I t was said

that, if that was its meaning, a bankrupt might come within it if

1953.

he did not disclose something relating to his dealings with property

Calegeros

that he may have had within five years before his bankruptcy.

V.

Attorney-

If there was nothing fraudulent in such dealings, it does not fall General

FOR the Common­

within the sub-section; but if the question of fraud arises, there

is no reason why it should not be inquired into.” (1).

wealth OF

Australia.

Counsel for the appellant submitted that the form of s. 210 (1) (a) of the Bankruptcy Act 1924-1950 renders this decision inapplicable

WiUiams J.

Webb J.

and that we should hold tha t this sub-section is restricted in its

Taylor J.

operation to property which is shown to be property of the bankrupt at the commencement of the bankruptcy. We can see no reason why the present form of the sub-section should lead to this con­ clusion if Reg. v. Michell (2) was, as we think, rightly decided. The gist of the offence is now, as in 1861 it was in England, intent to defraud and the sub-section, we think, applies to all omissions to discover which a bankrupt makes with intent to defraud his creditors, or, in the language of sub-s. (6) of s. 210, with intent to “ dishonestly conceal the state of his afiairs or otherwise violate or defeat the law ”. Clearly, an intent within the scope of sub-s. (6) may exist in connection with the non-discovery of property alienated by the bankrupt before the commencement of the bankruptcy. The maimer in which the offence may be proved has undergone some change since the Imperial Act of 1861 for in a prosecution under that Act it would have been necessary to establish the specified intent as an ingredient of the offence. But in 1869 the onus of proof, as will be observed, was shifted. Similarly, under the present Act the onus of proof lies upon a bankrupt to disprove the existence in relation to any non-discovery of property of any intent of the nature specified in sub-s. (6) of s. 210. Notwithstanding these changes we think the essence of the provisions are the same and that the decision in Reg. v. Michell (2) applies to the present case. That decision, apparently, has not been questioned since it was decided and we see no reason why we should depart from it.

The final submission made on behalf of the appellant was that s. 210 (1) (a) does not apply to an omission to discover property in the course of a public examination under s. 68. But the charge was not that he failed upon his pubhc examination to make such a discovery and we confess to some difficulty in relating this sub­ mission to the realities of the case. I t is clear from a perusal of the transcript of that part of the public examination evidence

(1) (1880) 50 L.J. (M.C.), at p. 77; (2) (1880) 50 L.J. (M.C.) 76; 43 L.T.

43 L.T., at p. 573.

572.

52 HIGH COURT

[1953.

i r . c .

OF A.

which was tendered as an exhibit that the questions which were iDr),'}.aski'd on behalf of the trustee were asked in an endeavour to

Calico ioroselucidate facts concerning financial dealings on the part of the

V.appellant a-nd which uj) to that point of time had not been forth­

Attorn icy- coming if the evidence of Keketes was correct. Indeed the appellant

G unioral

For Tiiio

adinitti'.d at the beginning of that part of his public examination

COMMON-

WICALTll' OFevidence which was tendered that “ in his questionnaire ” he had

Australia .stated that. “ during July, 1949, to August 1951 ” he had sold motor

Williams J. cars for three named persons, including “ one for Nicholas Keketes ”,

Wobb .).

Taylor .1, and that he was not actually a car dealer but had had those cars in his possession “ on consignment ” . I t seems clear to us that on the occasion of the public examination the appellant was afforded a further opportunity of making known to the trustee the real facts in relation to his dealings with Keketes and, if Keketes’ evidence is to be accepted, it is reasonably clear that he did not make a full and true discovery in the course of his examination or at any earlier time. In relation to this final submission made on the appellant’s behalf we were referred to R. v. Wimpole (1) in which case Loive J. held that a failure to discover to the trustee may be constituted by a failure on the part of the bankrupt truthfully to answer in the course of his public examination questions relating to the disposal of his property. There is, of course, difficulty in holding as a general proposition, that mere failure to disclose information in the course of such an examination constitutes an offence under s. 210 (1) (a) for, if that proposition were correct, the offence would be committed upon failure to discover appropriate information whether questions seeking the information were asked or not and not only upon a refusal or failure truthfully to answer questions. But the observations of Lowe J. did not purport to lay downi any such wide proposition. The question before him was as to the admissibility, upon the hearing of a charge under s. 210 (1) (a), of evidence given by the banlvrupt on his public examination. In holding that such evidence was admissible his Honour said : “ In my opinion, questions put by the trustee’s counsel at such an examination, having relation to the property of the bankrupt, may be questions the answers to which show that the bankrupt has not to the best of his knowledge and belief fully and truly discovered to the trustee all his property, etc. I t seems to me that it may be none the less a failure to discover to the trustee, even though it may be also a failure to discover to the Court ” (2). We are of opinion that if s. 210 (1) (a) has the wide application contended for by the respondent, as we think it has, there is a

(1) (1931) V.L.R. 201.

(2) (1931) V.L.R., at p. 206.

88 C.L.R.] OF AUSTRALIA.

53

failure to make a full and true discovery only when, having the

H. C. OF A.

obligation and opportunity to make such discovery, the bankrupt

1953.

fails to do so. Section 210 (1) (a), therefore, does not relate to a

Calegeros

failure to disclose information in the course of a public examination

V.

Attorney-

where the bankrupt is not asked questions a full and true answer

General

FOB THE Common­

to which would require him to make the disclosure.

But the charge

against the appellant in this case does not rest upon the bare wealth OF

proposition tha t he failed to make a full and true disclosure upon

Australia.

his public examination for, as we have already said, it is sufficiently clear from the evidence that, if Keketes’ evidence be accepted, the appellant did not at any time make a full and true discovery of the relevant matters and there was ample evidence to sustain the charge. Accordingly we are of opinion that the appeal should be dismissed

with costs.

Appeal dismissed with costs.

Solicitor for the appellant, G. F. Osborne.

Solicitor for the respondent, D. D. Bell, Crown Solicitor for the

Commonwealth.

J. B.