Faircloth v the Queen

[1987] TASSC 37

TASSC A28/1987

CITATION:               Faircloth v The Queen [1987] TASSC 37; A28/1987

PARTIES:  FAIRCLOTH
  v
  THE QUEEN

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  C30/1987
DELIVERED ON:  28 May 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Cox J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  
             Respondent:  
Solicitors:
             Applicant:  
             Respondent:  

Judgment Number:  TASSC A28/1987
Number of paragraphs:  14

Serial No A28/1987
  File No C30/1987

FAIRCLOTH v THE QUEEN

REASONS FOR JUDGMENT  COX J
  28 May 1987

1. This is an application made pursuant to the Costs in Criminal Cases Act 1976 ("the Act") for an order that the Crown pay the applicant's costs of defending two charges of perjury brought against him. On the 6 May 1987, at my direction, the jury acquitted him of both counts. The trial which had commenced on Friday the 1 May occupied the whole of that day and of the following Monday. On Tuesday the 5 May the trial was adjourned by consent to the next day without any further proceedings taking place to enable certain enquiries to be made and on the 6 May the learned Director of Public Prosecutions, who appeared for the Crown, announced at 10 am that the Crown would proceed no further on the indictment. At this stage the case for the prosecution had still not been closed. Counsel for the accused applicant asked for a verdict of acquittal by direction and I directed the jury accordingly. Conscious that the applicant had not during the trial had the opportunity to give or adduce evidence in contradiction of that led against him, I enquired of counsel whether he wished to present any evidence for the purposes of this application. He declined to do so.

1. The indictment alleged in count 1 that the applicant at Hobart on the 18 September 1986 "being lawfully sworn in a judicial proceeding namely before Mr W P M Zeeman being a person appointed pursuant to a direction under s292(1)(a) of the Companies (Tasmania) Code to carry out an investigation inter alia into the affairs of Fairfield Horticultural Products Limited and pursuant to a direction under s16(1) of the Securities Industry (Tasmania) Code in respect of dealing in the securities of Fairfield Horticultural Products Limited did wilfully make (certain) statements which he knew to be false". In count 2 it was alleged that on the 24 September 1986 being again lawfully sworn as a witness in a judicial proceeding particularised in the same way as it had been in count 1 the applicant had wilfully made further statements which he knew to be false. In substance he claimed that a sum of $1,500 paid to him in late 1985 by the abovenamed company had been paid for certain consultancy work he had carried out for the company in his own time (he being at the time of payment a public servant employed within the Premier's Department). However, the Crown case which was not disputed by the applicant was that no such consultancy work had been done. This claim was first made on the 18 September 1986, and had been repeated and elaborated on five days later at a resumed hearing before Mr Zeeman. The next day the applicant admitted to Mr Zeeman that he had lied in relation to that sum of $1,500 and claimed that it was an unsolicited and unexpected gift from the company. Later in a record of interview with police officers he had repeated his admissions of lying and his claim that the payment was an unsolicited gift. The officer who gave evidence of the record of interview was not cross–examined on the trial.

1. The applicant had, at an earlier time, been employed by the Tasmanian Development Authority when the company had been advancing a case for assistance from the Authority in the establishment of a peat moss industry. It was no part of the Crown case that the applicant had dishonestly and in breach of his duty as a servant of the Authority extended favours to the company which resulted in that payment being made, but given that Mr Zeeman was enquiring generally into the affairs of a public company a deliberate misrepresentation of the nature of such a payment and the false assertion that it was a payment for consultancy work done after the applicant had ceased to be connected with the Tasmanian Development Authority was obviously a material lie, even were it only designed to avoid the possibility of giving rise to a suspicion of impropriety which had not in fact occurred.

1. The Crown was required to establish that the proceedings conducted by Mr Zeeman at which these lies were told were a judicial proceeding. In pursuance of s292(9) of the Companies Code the Crown relied on a certificate dated the 28 April 1987 and given under the seal of the National Companies and Securities Commission ("the Commission") that an investigation into the affairs of Fairfield Horticultural Products Limited was being carried out by Mr Zeeman and that the investigation was arranged by the Commission on the 22 July 1986 pursuant to a direction to the Commission under s291(1) of the Companies Code from the Attorney General for Tasmania dated the 18 July 1986 as prima facie evidence of the facts stated therein and that Mr Zeeman, the inspector, had been duly appointed. Likewise the Crown relied on a similar certificate under the Securities Industry (Tasmania) Code, s17(9), for proof of his due appointment to conduct that enquiry.

1. In the course of the trial considerable attention was given by the defence to other documentation relating to the appointment of Mr Zeeman to conduct enquiries into the affairs of and into matters relating to dealing in securities of Fairfield Horticultural Products Limited under the Companies Code and the Securities Code respectively, and into the affairs of another company Natureland of Tasmania Pty Ltd, also under the Companies Code. It became apparent that a large number of errors (some purely clerical, others arguably not) had been made in the documentation and general procedure. Initially, in accordance with both Codes, directions had been given on the 18 July 1986 to the Commission by the Attorney General for Tasmania to appoint Mr Zeeman an inspector into the affairs of Fairfield Horticultural Products Limited and an incorrectly named company, Natureland Pty Ltd, and into dealing in the securities of the former company. The Commission had purported to comply by making appointments, but within a few days the error in respect to Natureland Pty Ltd had been realised as had another error in the appointment under the Securities Code which, instead of being an appointment to carry out an investigation "into matters relating to dealing in securities of Fairfield Horticultural Products Limited", had been worded as an appointment to carry out an investigation "into all of the affairs of Fairfield Horticultural Products Limited".

1. In consequence of the misdescription of Natureland of Tasmania Pty Ltd as Natureland Pty Ltd the Attorney General signed a further direction dated the 22 July 1986 in the same terms as his earlier one in respect of Natureland Pty Ltd This he handed the same day to the Commission's Chairman at the Sheraton Ayers Rock Hotel where the Ministerial Council was meeting. The Chairman thereupon convened meetings of the Companies Division and the Securities Division of the Commission. The powers and functions of the Commission may, by resolution of the Commission, be performed by a division of the Commission constituted by such members of the Commission as are specified in the resolution. A quorum is two. At the time only two of the three full time members of the Commission were in Australia, namely the Chairman and the Deputy Chairman, Mr Williams, both of whom were at Ayers Rock. These two members, purporting to be members of the respective divisions, then passed motions rescinding the appointments of the 18 July 1986 and making fresh appointments of Mr Zeeman, correctly naming the companies in question and correctly authorising a Securities Code investigation "into matters relating to dealings and securities of Fairfield Horticultural Products Limited". However, the preamble incorrectly recited that the Attorney General's direction had been dated the 18 July 1986 (in fact there had been two, one dated the 18 July 1986 relating to Fairfield Horticultural Products Limited and the other dated the 22 July 1986 relating to Natureland of Tasmania Pty Ltd).

1. The Companies Code, by s292 (6), requires the Commission, where it is directed to arrange for an investigation such as these, to publish in the Commonwealth Gazette a notice stating that the direction has been given. The Securities Industry Code, s17(6), likewise requires the gazettal of notice of a direction under that Code. It, however, requires publication in both the Commonwealth and Tasmanian Government Gazettes. On the 5 August 1986 notice was given in the Commonwealth Gazette of the directions under each Code that these notices referred to the appointments of the 18 July 1986 which were revoked on the 22 July 1986. It was only on the 23 September 1986 that the appointments made on the 22 July 1986 were published in a Commonwealth Gazette and by then the statements in count 1 had already been made to Mr Zeeman. Furthermore, the Commission never arranged for publication in the Tasmanian Government Gazette of the direction under the Securities Code.

1. Mr Zeeman gave a notice, purportedly under s295(1) of the Companies Code, to the applicant requiring him as an "officer" of Fairfield Horticultural Products Limited to appear for examination on oath before him. Such an examination is deemed to be a judicial proceeding for the purposes of Chapter X of the Criminal Code, s295(4). The term "officer" is defined to include a person who is capable of giving information concerning affairs of the corporation being investigated or who is believed by the inspector, on reasonable grounds, to be such a person. Mr Zeeman gave evidence that he regarded himself in relation to the applicant as conducting the "Companies Code" investigation into Fairfield Horticultural Products Limited, because he considered that the material in relation to which he might be able to assist him related to Fairfield Horticultural Products Limited specifically and accordingly regarded him as an officer of that company. He also gave evidence that all three enquiries were in effect conducted contemporaneously and Mr Faircloth was sworn "in these enquiries". However, he also said that the evidence taken was "all considered to be relevant for the purposes of the reports in a primary sense although ultimately specific witnesses were seen to be specifically relevant to a specific enquiry". It was submitted by counsel for the applicant that this course was erroneous and that if Mr Zeeman had any authority to examine the applicant it was only in respect of the Companies Code enquiry into Fairfield Horticultural Products Limited and he should not therefore have been sworn in any other enquiry than that one.

1. When the learned Director of Public Prosecutions announced to the court that the Crown did not intend to proceed further on the indictment he chose to make public his reasons. he said that the Crown was ready to meet the matters raised in cross–examination by the defence (some of which I have referred to) and that if these were the only issues in question the prosecution would proceed. However he said that although Mr Williams, the Deputy Chairman of the Commission, had given evidence to the court that he was a member of the relevant divisions of the Commission which had made the appointments, the Director of Public Prosecutions was unable to satisfy himself that there had been any formal resolution of the Commission appointing him a member of either division. The Crown had accepted the certificates as evidence of a valid appointment of Mr Zeeman, but further enquiries prompted by the nature of the defence had failed to establish Mr Williams' qualification to sit as a member of either division on the 22 July 1986. He was not therefore prepared to rely on the certificates provided by the Commission, which are by statute prima facie evidence of Mr Zeeman's due appointment.

1. I am of the opinion, notwithstanding the submissions of Mr Evans of counsel for the applicant, that leaving aside the unexpected revelation that Mr Williams may not have been appointed to those divisions, nothing elicited on the trial, whether in chief or by the defence in cross–examination, nor apparent on the face of the documents, would have justified my withdrawing this case from the jury on the basis that Mr Zeeman's appointment was shown not to be valid. Even the failure to gazette the Companies Code appointment in the Commonwealth Gazette prior to the occasion of the first statements alleged to be perjured does not have that effect in my view, and even if the failure to gazette the Securities Code appointment in the Tasmanian Government Gazette was fatal to that appointment (which it is not, in my view) I consider that the evidence shows that the false statements complained of were given in the course of a judicial proceeding validly being conducted under the Companies Code. I do not consider that the swearing of Mr Faircloth in "the enquiries" altered the reality that he was being examined under the Companies Code investigation as an officer of Fairfield Horticultural Products Limited.

1. However, even if I am wrong about that and a conviction could not have been sustained on either count for any of the reasons advanced by Mr Evans, on the evidence available to the Crown this prosecution was properly brought and the applicant's acquittal would have resulted, on the premise that Mr Evans' submissions are correct, from points which could only be regarded as technical. The evidence as a whole would clearly support a finding that the applicant wilfully lied on two separate occasions to Mr Zeeman when the latter had administered oaths to the applicant in proceedings then having all the appearances or judicial pleadings pursuant to s295(1) of the Companies Code. That evidence would not only support such a finding, but was not challenged in cross–examination and the applicant declined the opportunity I extended to adduce evidence in contradiction of the substantive allegations brought against him.

1. In the events which have happened the applicant has in fact succeeded on a purely technical point and one which arises only because the learned Director of Public Prosecutions very properly elected not to rely on what would normally be regarded as sound prima facie evidence as the result of doubts being engendered at a late stage of the trial into the validity, not of Mr Zeeman's appointment as such, but of the qualifications of one of those who purported to appoint him.

1. It is said that the Crown should have been alerted to the possibility of some error in the appointment of Mr Zeeman and of some irregularity in the manner in which his investigations were carried out by the requests for information made by the applicant's solicitors in January 1987 and by a perusal of the available documentation. In my opinion there is no substance to this claim. There was no basis for an expectation that Mr Williams might not have been a validly appointed member of the division which purported to carry out the Attorney General's direction and even if the submission ultimately made about the alleged irregularities of form and procedure had been known well in advance the Crown's answers to them are, if not sound as I indeed regard them, at least so strongly arguable as to have required in the public interest that this prosecution be continued until the court resolved them.

1. In my opinion nothing has been advanced which could be said to establish any positive reason in the circumstances why the court's power to make an order for the applicant's costs to be paid out of the public purse should be exercised.