Criminal Law—Offence by officer or employee of company—Improper use of position to gain advantage or cause detriment to company—Whether purpose of gaining advantage or causing detriment required—Whether accrual of advantage or suffering of detriment required—Companies (Western Australia) Code. s 229(4)*. Companies—Officers and employees—Offences—Improper use of position to gain advantage or cause detriment to company—Companies (Western Australia) Code, s. 229(4).
Decisions
MASON C.J., BRENNAN, GAUDRON AND McHUGH JJ. The facts of this matter and the relevant statutory provisions have been set out in the reasons for judgment of Toohey J. However, it is necessary for us to set out again the provisions of s.229(4) of the Companies (Western Australia) Code:
"An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation. Penalty: $20,000 or imprisonment for 5 years, or both."
2. The sense in which the word "to" is used in association with the infinitive may be purposive ("in order to") or causative ("so" or "so as to", though "so as to" may sometimes signify purpose rather than result). It is common to use "to" with the infinitive in the sense of "in order to" so as to express purpose, particularly in an adverbial clause, as an adjunct(1) See Quirk et al, A Comprehensive Grammar of the English Language,. (1985), par.15.48; Oxford English Dictionary, 2nd ed. (1989), vol.XVIII, pp 166-167. No doubt the use of subordinators such as "in order to" or "so that" is more frequent and makes for more precise expression. However, that circumstance does not of itself justify the conclusion that the use of "to" with the infinitive in an adverbial clause as an adjunct is usually causative, for that is not the case.
3. On the other hand, the presence of a comma which makes an adverbial clause a disjunct, rather than an adjunct, may indicate that consequence, not purpose, is intended(2) Quirk, op.cit., par.15.20. Result clauses differ syntactically from purpose clauses, the former being disjuncts whereas the latter are adjuncts(3) ibid., par.15.49. The presence of the comma before "to gain" in s.229(4) is significant because it separates the prohibition against making improper use of position from what follows, suggesting that what follows is separated from (and thus is a consequence of) the conduct which is the subject of the prohibition. Such a separation is not readily reconciled with a purposive construction because then the conduct which is the subject of the prohibition is more restricted and should be expressed in terms of making improper use of position in order to gain an advantage or cause a detriment so that the purposive limitation becomes an integral element in the expression of the prohibition.
4. It is curious that, in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Chew v The Queen [1992] HCA 18
Case
[1992] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Mr. Chew, against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.
The primary legal issues before the Court were whether the trial judge had erred in admitting evidence obtained in circumstances that may have infringed the applicant's rights, and whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles. Specifically, the Court had to determine if the evidence was obtained in contravention of the common law or statutory provisions, and if so, whether its admission was nevertheless justified.
The Court's reasoning focused on the principles governing the admission of evidence obtained in breach of an accused's rights. It affirmed that while the common law permits the exclusion of improperly or unfairly obtained evidence, this discretion is not absolute. The Court considered the balance between the probative value of the evidence and the unfairness to the accused, as well as the public interest in the conviction of those guilty of serious crimes. Furthermore, the Court analysed the elements of self-defence, including the requirement for an honest and reasonable belief that the use of force was necessary, and the proportionality of that force. The jury directions were assessed against these established legal standards.
The High Court dismissed the appeal, finding no error in the trial judge's rulings on the admissibility of evidence or the directions given to the jury.