Fairclough v The Queen

[1998] HCATrans 27

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A6 of 1997

B e t w e e n -

LINDEN FRANCIS FAIRCLOUGH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 1998, AT 10.15 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friend, MR J.R.E. LISTER, for the applicant.  (instructed by Jon Lister)

MR S.A. MILLSTEED, QC:   May it please the Court, I appear for the respondent with MR S.K. McEWEN.  (instructed by the Director of Public Prosecutions (South Australia))

GAUDRON J:   Yes, Mr Wells.

MR WELLS:   If the Court pleases.  It would be a mistake, we submit, to approach this case as a simple one, namely whether the applicant swore on oath that he was wholly absent from work and evidence that he was not.  That was the error that we submit that the learned trial judge fell into in his directions to the jury and also the Court of Criminal Appeal.

In truth there are, we submit, two questions that arise in relation to the statement that was impugned.  The first question is what is the meaning to be attributed to the statement in its context and, secondly, having regard to the answer to that, is it a statement that actually is capable of being true or false.  We have submissions to put to the Court on issues of materiality.

GAUDRON J:   But do you not have to say - I mean, even if you put it like that, do you not have to say that the jury was likely to have confused the issue with the other issues in the trial?

MR WELLS:   Your Honour, that is certainly something we do say.  Our submission ‑ ‑ ‑

GAUDRON J:   How do you get there?  Quite different words, having an ordinary meaning.

MR WELLS:   Your Honour, I wonder if, in order to answer that question, I can take the Court to the affidavit that was impugned, what we call the rule 46.15 affidavit.  It might be useful, in fact, to start with the rule.  This is a rule which is to be found in its relevant part at page 122 of the application book.  It is part of rule 46 of the Supreme Court Rules and there are, in most jurisdictions, similar provisions requiring, in relation to some particulars in personal injury cases, the provision of particulars on oath.

Your Honours will see that a number of items are there specified for answer.  Some are very simple, such as (1)(b)(i), “date of birth”.  Others are complex facts such as the one with which we are concerned which appears in (1)(b)(vi) in which the plaintiff in the case is required to specify:

The periods.....since the injury during which he alleges that he has een wholly unable to perform his normal business, employment or occupation -

and so forth.  That was the question that was asked.  It was not a question that was asked at all about where you were.  It was a question about whether one was wholly unable to perform ones normal occupation.  Now, the answer that was given, your Honours, which led to the trouble did not, in terms, precisely on its face respond to that question.  Because if one then turns to page 128 we find, down the bottom, the answer given being in terms of being “wholly absent from my employment”.

Just pausing there, not “wholly absent from my workplace”, but “wholly absent from my employment”.  And bearing in mind that the applicant was then acting as a principal, as a solicitor, employment itself is probably loose anyway.  But it does not end there and it is not as simple as simply saying, “Well, he wasn’t at work or he was at work but he says he wasn’t there for..... .”  If one goes on, and this is where we respectfully submit the matter was not put to the jury properly, over the page, when dealing with partial incapacity, the deponent went on to say that he was partially incapacitated for a certain period and then, “except for the periods” which he mentions “when I was totally incapacitated.”  So, in the same affidavit, he is actually talking about incapacity.  He is not talking at all about where he was.

One of the issues which really was not tackled, with respect, by the learned trial judge was whether, when he is talking about “wholly absent from my employment” he is talking about absent from my place of employment or absent from my duties of employment.  And it is plainly open to the jury to have understood, if properly directed, that what he was talking about there was absent from his duties.

GAUDRON J:   But that was in fact your case - that was the defence case to the jury, was it not?

MR WELLS:   It was.

GAUDRON J:   Well, the matter was there before the jury, they found against you.  It was a matter of some simplicity.  It did not require any specific directions from the trial judge, I should not have thought. 

MR WELLS:   With great respect, your Honour, because it involved first of all a conclusion as to what the words are to be taken as meaning, it did require treatment, with respect, from the learned trial judge, treatment that was not received.

GAUDRON J:   And was a direction sought?

MR WELLS:   I do not think I can say, your Honour, that there was any express request for a direction, no.  I cannot say that, your Honour, but this material was before the jury.  Can I just complete the survey of what the material was, if the Court pleases.  On the same day as this affidavit was sworn, another affidavit was sworn in the same matter and therefore filed and delivered and delivered to the same defendant, which was effectively SGIC, in support of an application for interim relief.  In that affidavit, which appears on page 132 of the application book, we find that again the deponent is saying that he was totally disabled for the periods that are set out in the earlier affidavit.  He actually got the paragraph number slightly wrong by one, but it does not matter because in the paragraph number that he refers to he also refers to the period of total disability.  Totally disabled from engaging in occupation as a solicitor. 

That affidavit was the subject of counts 10 and 11, separate counts relating to perjury, in respect of which the Court of Criminal Appeal quashed the convictions because they attracted or had the capacity for attracting a direction that the learned trial judge had given in relation to the false pretences counts.  So those convictions were quashed.  One of our principal complaints is that there is no reason why the same reasoning should not have applied also in the case of the rule 46 ‑ ‑ ‑

GAUDRON J:   Because there are different words.  The problem with your second affidavit was that there was a possibility of confusion with the false pretences counts.  But these are different words, different affidavit, different words, not the subject of any ‑ the issue that you raise is before the jury and not the subject of any request for further directions.

MR WELLS:   But not the subject of a direction either, your Honour.  But can I take the matter one step further.  In fact, in the Court of Criminal Appeal the learned Chief Justice recognised the danger and recognised it in this way.  He said, well, of course the case put by the defence was that the use of the words “wholly absent from employment” was understood by the applicant as being the same thing as “totally disabled” or “wholly unable” and that is the way he intended to use it.  Now, if the jury were to take the view that that was possible, the question then arose, what principles do they apply to determine whether that was false.  If that was a live issue before the jury, as indeed it was, and they took the view that it was reasonably possible that that was how it was intended and how it was meant, what were the principles to be applied?  And surely then that question is answered by saying, all the jury had was a direction about total disability under the MLC policy and, in addition to that, no direction of the kind that the Court of Criminal Appeal said should have obtained in relation to counts 10 and 11 saying, “Put that all aside, do not pay attention to that because ‘wholly unable’ or ‘total disability’ here is not the same thing as in the MLC policy.”

It attracted the very danger that the Court of Criminal Appeal recognised in relation to counts 10 and 11.  But there is more, if the Court pleases.  If it was reasonably possible that the jury took the view that what was meant and intended was wholly unable or totally disabled, the question arises whether such a statement is capable of being either true or false and raises, as we respectfully submit it did raise, the very issue that was left unanswered in Jamieson’s Case, that is whether - in Jamieson’s Case it was a pleading, not particulars, and it was an unverified pleading ‑ whether a statement in an unverified pleading is capable of conveying a representation of fact, positive fact, such as in that case to constitute the basis of, in effect, a false pretences charge.  The same issue arises here and requires ‑ ‑ ‑

GAUDRON J:   It is a different issue when it is verified.

MR WELLS:   No, with great respect, your Honour.  What we would want to contend is this:  no doubt the unverified pleading ‑ ‑ ‑

GAUDRON J:   Would not attract a charge of perjury.

MR WELLS:   The question, though, is what is being verified?  In this case, there was an unverified pleading ‑ ‑ ‑

GAUDRON J:   A statement of fact.  There was a statement of fact.

MR WELLS:   With great respect, your Honour is making the very assumption which is in issue.  The jury had before it the possibility of saying the statement that they are considering is not “wholly absent from my place of work”, because this was the issue that was before them.  There is a reasonable possibility this statement was intended to mean, and meant, that “I was wholly unable to carry out my duties of employment.”  Now, if that is a matter on which the jury could have found a reasonable possibility, then it must follow that they must also stand possessed of a direction, probably no case, but at least a direction that says in that event they cannot conclude that there was any statement capable of being true or false.  No statement capable of being true or false because what the statement “wholly unable” or “totally disabled” is is not a statement of fact.  It is a conclusion.  It is a conclusion drawn from a whole series of different facts, no doubt simple facts, no doubt a trial aided by expert evidence, in order to come to a conclusion.

Whether you call it a conclusion of law or a conclusion of fact is neither here nor there.  The important point is that it is not, itself, a statement of fact of the kind that could attract either the description true or false.  It can only be, in the end, a conclusion as to whether all the circumstances enable one to say “totally disabled” or “not totally disabled”.  Jamieson’s Case, in our respectful submission, points to issues undecided, not only with respect to an unverified pleading but also, even in the case of verified particulars, to what extent does that alter the fundamental proposition and our respectful submission is it does not.

Now, your Honours, can I turn next to the three issues of materiality that arise.  For that purpose, can I invite your Honours to turn in the materials book, which has been provided jointly by the parties, to section 242 of the Criminal Law Consolidation Act, which is to be found towards the end of the materials book.  This is the section under which the applicant was tried and convicted and it does not represent the common law.  I need to make one correction to our outline of argument and that is this.  We suggested that this section 242 introduced for the first time the statutory offence of perjury as distinct from the common law.  That is not correct.  It was introduced for the first time in 1984, and I think your Honours have the amendment now before you.  That makes little or no difference to our argument, but it is important to point out that in that respect our outline needs a correction. 

The point we would want to make is this, if the Court pleases.  Your Honours will see that this section does not associate itself with statements made in or during judicial proceedings. It is simply whether a false statement has been made under oath.  Because it is not associated with judicial proceedings, the common law approach which was, we submit, reflected in the decision of the Court of Criminal Appeal in Traino’s Case, which is on our list, the common law approach is not correct any more and is not correct in three essential aspects.  The first is that where, under the common law, we are talking about perjury in judicial proceedings, it is natural to suppose that when one is talking about whether the statement was material, it will be a question for the judge.  It was held in this case, and the learned trial judge ruled, that it was a question for him.  We contend that is wrong, that it is no longer the case.

GAUDRON J:   And this was a point that was not taken at first instance or on appeal.

MR WELLS:   Your Honour, in both cases it was apparently seen as being concluded by the decision in Traino’s Case in the Court of Criminal Appeal.  That was a decision in 1987 and, on the face of it, appears to have been decided ‑ I correct that.  Just looking at the date, it appears to have been decided upon the basis of the 1984 amendment but, in truth, Traino’s Case was decided on the common law.

GAUDRON J:   What are you suggesting, that this should be a matter of evidence from the legal advisers for the other party to the proceedings perhaps?

MR WELLS:   No, your Honour, what we are saying first and foremost is that it is a question to be determined by the jury and under section 242 ‑ ‑ ‑

GAUDRON J:   What, as a question of fact?

MR WELLS:   Yes, and we go further, your Honour.  It is no longer, we submit, a question of determining whether the statement is material to the proceedings because, ex hypothesi, it does not belong to any particular proceeding.  It may in this case, but under the section it does not have to.  So the issue really is not whether the statement is material but whether the falsehood is material and, your Honours, that is plainly a matter in this case which fell to be determined by the jury.  To put it in a colloquial sense, assuming it to be a falsehood, assuming the Jamieson point falls away, was it a falsehood that mattered?  And the case that was before the jury, and indeed a case that could clearly be made, was that in the context, because of the information that the applicant had been providing and had provided, not only in the affidavits but subsequently, any falsehood that in strictness was there did not matter.  Now, if that is an issue, it was an issue that was not decided.

McHUGH J:   But if you accept your approach, what has materiality got to do with it at all?  You are guilty if you make a false statement under oath, full stop. 

MR WELLS:   Because, if your Honour looks at section 242(5) it provides that:

For the purposes of this section -

.....

(b)  a statement will be taken to be false if it is false in a material particular -

Now, falsity under this section or falsehood equals falsehood in a material particular.  The error that has been made in the courts below is to assume that the notion of materiality as exists at common law exists here.  Our respectful submission is it does not, and the decision of our Court of Criminal Appeal in Davies in 1975 points the way, as we set out in our outline, that when one comes to consider “false in a material particular”, we are talking about a different notion of materiality altogether.

McHUGH J:   Did not the court in Traino think they were following Davies?

MR WELLS:   Your Honour, only as to this first issue of question of law for the judge and that, your Honour, is because, in our respectful submission, the court in Traino thought that it was applying the common law and Davies obiter considered the position of perjury at common law when dealing with that question.  There was a difference between the members of the court, in fact, in Davies’ Case.

GAUDRON J:   But why would you take the view that the statutory provision changed the common law in that respect?  It is clearly not a question of fact.

MR WELLS:   Your Honour, let us take the case of an affidavit that is sworn, not in relation to any proceedings or judicial proceedings at all.  At common law that would not be a perjury ‑ ‑ ‑

GAUDRON J:   I do not know that you swear affidavits other than in relation to judicial proceedings, do you?

MR WELLS:   Your Honour, with great respect, these days affidavits are sworn all the time for matters that do not relate to judicial proceedings.

McHUGH J:   It used to be the case you swore statutory declarations.

MR WELLS:   That was also available, but the provisions cover affidavits and statutory declarations.  Now, if you take it out of the judicial context, immediately the whole question of a judge determining whether this statement is material to the proceedings becomes an irrelevant question.  If that is so ‑ ‑ ‑

GAUDRON J:   I am not too sure that that is right.  Let us assume we are dealing with a statutory declaration and there is a question of its materiality.  If a statutory declaration is required for a particular purpose and certain conditions must be sworn before that purpose will be achieved, then it really is a question of conclusion from the relevant law and the issues.

MR WELLS:   And sometimes the purposes which may not have anything to do with proceedings.  For instance, in  Davies ‑ ‑ ‑

GAUDRON J:   Well, it does not matter whether it does or it does not.  it is not a question of fact.

MR WELLS:   Your Honour puts that to me as a proposition, but we contend against it because ‑ can I take the example of Davies’ Case.  That was an application for legal aid.  A statutory declaration was given in which, in answer to a question, I think, “Have you been convicted and sentenced to a term of imprisonment?”, the answer was given in effect “No, no convictions.”  And that was false.  But the issue that was there raised was, well, now in the context of that application, how material was this answer to that question.  As the court said in Davies, that is a matter of determining whether, not only that the answer that is given bears in some important way upon the purpose of the application, but whether - and this is our third point, if the Court pleases, whether in addition to that the person who made the statutory declaration also realised that the falsehood that was being made was a falsehood that mattered. 

Now, that is our third point as well, if the Court pleases, namely, that there should have been a direction, as there was not, I agree not asked for, but there should have been a direction that, in this case, it was necessary also to establish that the applicant as the accused knew that what was being stated mattered.  What was being stated as a falsehood mattered, that is knew that it was material.

GAUDRON J:   No.  Even if you look at the section, all that you have to establish was that he “knew it to be false or did not believe it to be true”.  All that the prosecution had to ‑ ‑ ‑

MR WELLS:   No, with great respect, your Honour, no.  And can I finish on this point, as I must.  Your Honour will see in subsection (5)(b)(i) that having said:

a statement will be taken to be false if it is false in a material particular -

(i)  in the case of perjury -

it is then said that -

the person by whom it was made knew it to be false -

Now, the question is, what is meant there by “false”?  It has already said in its opening words false means “false in a material particular”, not false in any other way but false in a material particular.  So false in (b)(i) means the same thing and it must follow as a matter of statutory construction that

when we say “knew it to be false” it means “knew it to be false in a material particular”.  Davies’ Case stands as authority ‑ ‑ ‑

GAUDRON J:   Did you run a defence that you did not think it mattered?

MR WELLS:   Your Honour, the defence covered all of those.  It covered did not intend it to be understood in the way that is now being alleged and, in any event, it was not something that the accused saw as of critical importance because he had already, in his associated affidavit and in that same affidavit, made his position clear.  So the answer to your Honour’s question is yes.

Those are our submissions, thank you, your Honours.

GAUDRON J:   Thank you, Mr Wells.  We need not trouble you, Mr Millsteed.

Having regard to the issues in the trial, the way in which the trial was conducted and the fact that the applicant seeks to raise some issues for the first time in this Court, the Court is of the view that there was no miscarriage of justice.  The proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave.  Accordingly, the application is refused.

AT 10.40 AM THE MATTER WAS CONCLUDED