Director of Public Prosecutions Reference No 1 of 2000
[2001] NTSC 91
•26 October 2001
DPP Reference No 1 of 2000 [2001] NTSC 91
:DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2000
IN THE MATTER OF THE JUSTICES ACT
AND
IN THE MATTER OF THE CRIMINAL CODE
AND
IN THE MATTER OF A CASE STATED AT THE REQUEST OF THE DIRECTOR OF PUBLIC PROSECUTIONS IN COMMITTAL PROCEEDINGS No 9809855 BEFORE THE COURT OF SUMMARY JURISDICTION SITTING AT DARWIN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:182 of 2000
DELIVERED: 26 October 2001
HEARING DATES: 20 August 2001
JUDGMENT OF: MARTIN CJ
CATCHWORDS:
CRIMINAL LAW
General matters – criminal liability and capacity – criminal liability of a corporation – whether a body corporate can be charged with a dangerous omission pursuant to s 154(1) of the Criminal Code – whether s 154 of the Criminal Code applies only to offences committed by natural persons.
Criminal Code 1983 (NT), s 154
Interpretation Act 1978 (NT), s19 & s 38B
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, approved.
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450, referred to.
Clyne v DCT (NSW) (1981) 150 CLR 1, followed.REPRESENTATION:
Counsel:
Applicant:A Fraser
Respondent: R Webb
Solicitors:
Applicant:DPP
Respondent: Contradictor
Judgment category classification: B
Judgment ID Number: mar0131
Number of pages: 10
Mar0131
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDPP Reference No 1 of 2000 [2001] NTSC 91
No. 182 of 2000DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2000
IN THE MATTER OF THE JUSTICES ACT
AND
IN THE MATTER OF THE CRIMINAL CODE
AND
IN THE MATTER OF A CASE STATED AT THE REQUEST OF THE DIRECTOR OF PUBLIC PROSECUTIONS IN COMMITTAL PROCEEDINGS No 9809855 BEFORE THE COURT OF SUMMARY JURISDICTION SITTING AT DARWIN
CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 26 October 2001)
Question reserved for decision of this Court pursuant to s 162A of the Justices Act 1928 (NT).
The case stated as received from the learned Stipendiary Magistrate is as follows, except that I have deleted the name of the company and substituted “T” for it (see s 162A(8), s 162A(9) and s 162A(10) of the Justices Act):
“1.I have received a written request from the Director of Public Prosecutions pursuant to s 162A of the Justices Act to reserve for decision by the Supreme Court a question of law arising out of or in connection with the proceedings described below and in the circumstances set out.
2.On 5 April 2000, T, a company duly incorporated pursuant to the Corporations Law (Cth), appeared before me in committal proceedings conducted pursuant to s 105A of the Justices Act. The company was represented by counsel and its solicitors. Counsel for the Director of Public Prosecutions appeared to prosecute. The company was charged on information as follows:
On the 19th day of November 1997 at Nhulunbuy in the Northern Territory of Australia, T made an omission, namely, failed to ensure that workers repairing the roof of the Nabalco refinery warehouse were using appropriate safety equipment which caused serious actual danger to Michael Koulianos in circumstances where an ordinary person similarly circumstancecd (sic) would have clearly foreseen such danger and not made that omission.
Contrary to s 154(1) of the Criminal Code.
3.…
4.The questions to be reserved for the Supreme Court’s consideration, in accordance with the request received by me from the Director of Public Prosecutions are as follows:
(a)Can a company incorporated under the Corporations Law (Cth) be charged with a dangerous omission pursuant to s 154(1) of the Criminal Code in the terms of the information set out below?:
On the 19th day of November 1997 at Nhulunbuy in the Northern Territory of Australia, T made an omission, namely, failed to ensure that workers repairing the roof of the Nabalco refinery warehouse were using appropriate safety equipment which caused serious actual danger to Michael Koulianos in circumstances where an ordinary person similarly circumstancecd (sic) would have clearly foreseen such danger and not made that omission.
(b)Does s 154 of the Criminal Code only apply to alleged offences committed by natural persons or individuals?
5. …”
Upon the question coming on for argument Ms Fraser appeared for the Director and Ms Webb represented the company which had been charged before the Court of Summary Jurisdiction, and for these purposes it will be referred to as “the respondent”.
It cannot be doubted that a company incorporated under the Corporations Law (Cth) can be charged with a criminal offence. The Interpretation Act 1978 (NT) provides that a provision of an Act relating to offences shall be read as referring to body corporates as well as individuals (s 38B introduced by the Interpretation (Criminal Code) Amendment Act of 1983 commenced on the same date as the Criminal Code). Further, s 19 of the Interpretation Act provides that the word “person” includes a body corporate. The Criminal Code makes special provision in respect of the representation of a corporation where an indictment is presented against it, s 337, and the Sentencing Act 1995 (NT) contemplates a body corporate being found guilty of an offence, see s 16 and s 118. The latter provision provides that where an offence is punishable by a term of imprisonment (other than life) it is, unless the contrary intention appears, punishable, in addition to or instead of imprisonment, by a maximum fine as is there prescribed.
There is no dispute between the parties as to the law to be applied in considering whether a particular corporate may be guilty of a particular offence. The Director refers to the following extract from Halsbury’s Laws of Australia, par 130-135 – Corporations:
“Corporations A corporation is a legal person and as such may be convicted of a crime. Since a corporation can act only through its officers or employees, the question becomes which acts of a corporation’s officers or employees may be attributed to the corporation. A corporation is liable for a crime where the constituent elements of the crime were performed on behalf of the corporation by its board of directors, its managing director or any other person to whom the relevant functions of the board have been delegated. A corporation is vicariously liable for the conduct of its employees where those employees were acting within the scope of their employment. Where a representative whose conduct is attributable to a corporation has defences available personally, these defences will be available also to the corporation. There would seem to be no restriction on the offences for which a corporation may be responsible.” (Citations omitted).
For the respondent reference is made particularly to Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 where Brennan J at p 512 said: “The liability of a corporation to criminal conviction and to the imposition of a criminal penalty is well established …” and at p 514 the following:
A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions (A corporation is incapable of committing some offences, e.g., perjury or bigamy, at least as a principal offender: R v ICR Haulage Ltd [1944] KB at p 554), a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation’s officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission (On the general principles, see in particular Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at pp 713-714; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at p 170; Director of Public Prosecutions v Kent & Sussex Contractors Ltd [1944] KB at pp 155, 156; R v Australasian Films Ltd (1921) 29 CLR at p 217), whether or not the officers or agents of the corporation are also liable (See Mallan v Lee (1949) 80 CLR 198 at pp 211, 215-216; Hamilton v Whitehead (1988) 166 CLR 121 at pp 126-127). There may be an alternative basis of a corporation’s criminal liability, namely, as an aider, abettor, counsellor or procurer of the offence committed by the human principal offender (Lewis v Crafter [1942] SASR 30; Houston v Wittner’s Pty Ltd (1928) 41 CLR 107 at pp 119-120). Whatever basis of liability is applied, criminal liability can be sheeted home to a corporation only upon proof that what is done or omitted to be done and the mental state with which the act was done or the omission was made are within the scope of the authority conferred by the corporation upon the person or persons on whose act, omission or state of mind the corporation’s criminal liability is said to depend (See Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at p 201). The prosecution of a corporation thus requires proof of more than the conduct of particular natural persons which satisfies the elements of an offence (See Houston v Wittner’s Pty Ltd (1928) 41 CLR 107). Proof of those additional issues, linking the artificial entity with the relevant elements of the offence, often depends entirely or substantially on proof of documents in the corporation’s possession or power (Wigmore on Evidence (McNaughton rev 1961) vol 8, par 2259b, pp 360-361; Ramsay, “Corporations and the Privilege against Self-Incrimination”, University of New South Wales Law Journal, vol 15 (1992) 297 at pp 306-307). Moreover, some offences arising from the creation of danger or a failure to exercise care may be caused by organizational defects provable only by production of corporate records.”
That case had to do with the privilege against self-incrimination, but it will be noted that his Honour refers to omissions by a corporation amounting to criminal liability and to the creation of danger caused by organisational defects.
In so far as the criminal liability for a corporation depends upon the mental state possessed by any person it is of no relevance here. The requirements that criminal responsibility for an act or omission be dependent upon the necessary intention or foresight of an offender does not apply to the offence created by s 154 (Criminal Code, s 31(3)).
Section 154 of the Code is in the following terms:
“Dangerous acts or omissions
(1)Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any person (whether or not a member of the public) in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.
(2)If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.
(3)If he thereby causes death to any person he is liable to imprisonment for 10 years.
(4)If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years.
(5)Voluntary intoxication may not be regarded for the purposes of determining whether a person is not guilty of the crime defined by this section.”
I will deal briefly with submissions made by the respondent going to whether a company can be charged in the terms of the information as framed. That is, that the charge as framed was defective as not disclosing an offence.
The questions raised in the case stated were not posed upon any objection to the form in the indictment taken before his Worship by the then counsel for the respondent, and I do not propose to answer them with regard to those submissions. Given the ambiguity in the question, counsel for the respondent who appeared before this court, may well be entitled to think that it was an issue.
The real issue is whether s 154 of the Criminal Code should be read as referring to a body corporate as well as to individuals or whether s 38B of the Interpretation Act yielded to the appearance of a contrary intention displayed in s 154.
The argument was developed by reference to the proposition that since the word “person” where sometimes used in s 154 could not possibly include a body corporate, then to be consistent the word “person” where otherwise used could not be held as including a body corporate in this context. If that were so, then since “person” was limited to an individual the necessary contrary intention had been shown so as to exclude a body corporate from liability for the offence.
It was pointed out, for example, that the word “person” secondly appearing in s 154(1) could not be interpreted as including a body corporate because no danger could be caused to the life, health or safety of a body corporate. Similarly, the “ordinary person” referred to in the objective test of liability could not be interpreted as meaning “ordinary body corporate” because of the definition of “persons similarly circumstanced”, that is, as not including a person who is voluntarily intoxicated (Criminal Code s 1). Since a body corporate could not be intoxicated, whether voluntarily or otherwise, the definition could not apply to a body corporate thus it could not be included within the ambit of the phrase. Reference was also made to the provisions of s 154(5) in similar vein. The use of the word “he” in s 154(2), (3) and (4) was also brought to bear upon the argument that a contrary intention was shown.
Reliance was placed by the respondent upon what was said to be a “fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words where ever they occur in that document and that that applies especially to an Act of Parliament and with especial force to words contained in the same section of an Act” per Hodges J in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452, as to which see Pearce and Giddes, Statutory Interpretation of Australia, par 4.4. The authors proceed in par 4.5 to observe that the “counsel or perfection that is contemplated by the approach described above is unfortunately not always attained” and refer to a number of cases in which there has been departure from the rule. In Clyne v DCT (NSW) (1981) 150 CLR 1 at 10 Gibbs J observed that the presumption that a word is used with a uniform meaning in a statute is not one “of very much weight … it all depends on the context” and in the same case Mason J at p 15 said that the “presumption readily yields to the context” (see the reference to that case and others in Murphy v Farmer (1988) 79 ALR 1 per Deane, Dawson and Gaudron JJ at p 6). With respect, I am of that opinion.
I am not persuaded that the submissions on the part of the respondent prevail. The starting point is to be found in s 38B of the Interpretation Act requiring that a provision of an act relating to offences be read as referring to bodies corporate as well as to individuals, and applying that requirement to s 154 the various arguments advanced to demonstrate a contrary intention fall away. All that is required is that s 154 be read as referring to a body corporate which, of course, includes a company incorporated under the Corporations Law (Cth).
Reading s 154 as referring to a body corporate entails making such changes to the text as are consistent with the offender being a body corporate. If the change can be sensibly made then it is permissible, if it can not, then the word must remain. Approaching the matter in that way, and taking into account the definition of “person”:
· The word “person” secondly appearing in s 154(1) can not be sensibly changed to “body corporate”. But, that does not effect the liability of the corporate offender for causing the requisite danger to an individual.
· The “ordinary person” may mean either the ordinary individual or the ordinary body corporate depending on the proper legal test. That question is not raised for determination, but either way the objective test is capable of being applied.
· A corporate body may not be intoxicated voluntarily or otherwise and changing the word “person” by reference to the definition is not only not sensible, it is unnecessary. The question of intoxication will not arise in the case of a corporate offender. The issue of “similarly circumstanced” remains.
· The word “he” is sensibly changed to “it”.
Sections 154(4) and (5) obviously can have no application in relation to an offence committed by a corporation. However, applying the direction contained in s 38B of the Interpretation Act to the offence and taking into account the definition of “person” where necessary, it is my opinion that the respondent company could be charged with a dangerous omission pursuant to s 154(1) of the Criminal Code and that that section does not only apply to alleged offences committed by natural persons or individuals.
Accordingly I would determine the questions reserved as follows:
4(a) Yes
4(b) No
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