Fantini v Commissioner for Consumer Affairs - [2009] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
FANTINI v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 78
Judgment of Her Honour Judge Cole
29 July 2009
ADMINISTRATIVE LAW
Appeal from the refusal by the respondent of an application for registration as a sales representative pursuant to the Land Agents Act 1994 - prior criminal history of appellant considered - whether charges were indictable offences - appeal dismissed.
Land Agents Act 1994; Crimes Act 1915; Criminal Law Consolidation Act 1935-1975; Justices Act 1921-1981; Local and District Criminal Courts Act 1926-1975, referred to.
R v Ward (1918) VLR 418; R v Adams (1995) 66 SASR 285; Ross v The Queen (1979) 141 CLR 432; The Queen v Doyle (1980) 48 FLR 92; Brogden v Commissioner of the Police Service 122 (2001) A Crim R 394, considered.

FANTINI v COMMISSIONER FOR CONSUMER AFFAIRS
[2009] SADC 78

Mr Fantini applied to the Commissioner for Consumer Affairs (“the Commissioner”) to be registered as a sales representative pursuant to the Land Agents Act 1994. The Commissioner refused that application. Mr Fantini appealed to this Court against that refusal. At the hearing of the appeal, Mr dal Cin appeared for the appellant, and Ms Willows appeared for the respondent.
Facts
The facts relevant to this appeal were not in dispute, and are set out in the affidavit of Graham Philip Close, the Manager of Licensing Operations in the Occupational Services Section of the Office of Consumer and Business Affairs.
The Commissioner received Mr Fantini’s application for registration as a sales representative under the Land Agents Act 1994 on 27 January 2009. A copy of a National Police Certificate (“the Certificate”) in relation to Mr Fantini was provided with the application. The Certificate disclosed the following court outcomes in relation to Mr Fantini:
·on 12 October 1988, Mr Fantini was convicted of 3 counts of false pretences and one count of attempted false pretences. A term of 6 months imprisonment was imposed in relation to one of the counts of false pretences and suspended on Mr Fantini entering into a bond to be of good behaviour for 6 months.
·on 22 June 2006, Mr Fantini was convicted of being present at an unlawful game; playing a game of chance with a gaming table or instrument. He was fined $100.
·on 6 July 2006, Mr Fantini was found guilty of possessing a firearm without a licence, possessing an unregistered firearm, failing to keep a class C, D or H firearm secured and failing to store ammunition in a locked container. Penalties were imposed without conviction; a bond in relation to the first count and fines in relation to the other three.
·on 14 June 2007, Mr Fantini was convicted of driving an unregistered vehicle and fined $70.
·on 5 December 2007, Mr Fantini was found to have breached the bond imposed on 6 July 2006, and he was fined $6,000.
·on 25 November 2008, Mr Fantini was convicted of keeping a brothel and fined $1,000.
The licensing officer who processed Mr Fantini’s application to be registered as a sales representative obtained further information in relation to the 1988 charges, including a copy of the information upon which the charges were laid and a copy of the record of the Adelaide Magistrates Court in relation to the charges.
The Land Agents Act 1994 provides, in s 8A:
A natural person is entitled to be registered as a sales representative if the person –
(a)has –
(i)the qualifications required by regulation; or
(ii)subject to the regulations, the qualifications that the Commissioner considers appropriate; and
(b)has not –
(i)been convicted of an indictable offence of dishonesty; or
(ii)during the period of 10 years preceding the application for registration, been convicted or a summary offence of dishonesty; and
(c)is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(d)is a fit and proper person to be registered as a sales representative.
The Commissioner provided Mr Fantini with reasons for the refusal of Mr Fantini’s application, dated 16 February 2009, in which the Commissioner cited s 8A(b)(i) and said:
Information provided by the applicant indicates that Nick Joseph Fantini was convicted of false pretences (3) and attempted false pretences on 12 October 1988. This is an offence within the meaning of section 8A(b)(i).
Pursuant to section 8A(b)(i) of the Act, Nick Joseph Fantini is not entitled to be granted a registration.
The application is refused.
It was argued on behalf of Mr Fantini that the Commissioner erred in refusing to register Mr Fantini as a sales representative, because Mr Fantini has not been convicted of an indictable offence of dishonesty within the meaning of s 8A(b)(i) of the Land Agents Act 1994. It was conceded that the false pretences and attempted false pretences charges were offences of dishonesty, but it was argued that, in all of the circumstances, they were not indictable offences within the meaning of s 8A(b)(i). It was conceded that, had Mr Fantini been convicted of an indictable offence, he would then have been disqualified from registration as a sales representative.
It was common ground that the offences with which Mr Fantini was charged in 1988 were charged on information and dealt with in the Adelaide Magistrates Court. Mr dal Cin argued that the fact that the charges were dealt with in a court of summary jurisdiction changed the character of the offences for the purpose of s 8A of the Land Agents Act 1988. Mr dal Cin relied upon the decision of the Supreme Court of Victoria in R v Ward (1918) VLR 418. That case involved the interpretation of s 514 of the Crimes Act 1915, which provided:
When any person apparently of the age of 17 years or upwards is convicted of any indictable offence and has been previously convicted on at least two occasions of any indictable offence or offence the Judge of the Supreme Court or the Chairman of the Court of General Sessions before which such person is convicted may declare that he is an habitual criminal and direct as part of his sentence that on the expiration of the term of imprisonment then impose upon him he be detained during the Governor’s pleasure in a reformatory prison.
Hood J, in considering whether a person who had been convicted of larceny, and had admitted four prior convictions of larceny in Courts of Petty Sessions, could come within s 514, said:
Larceny is an indictable offence – that is to say, the offender may be prosecuted by indictment. But he may in certain cases be dealt with in a summary way under sec.72 of the Crimes Act, and that section draws a marked distinction between “proceedings for a summary offence” and summary proceedings. In my opinion, a conviction in this mode does not come within sec.514 of the Crimes Act. In the first two lines of that section, and in sec.515, the words “convicted of any indictable offence” are clearly limited to cases of convictions before Courts having jurisdiction to try indictable offences, and the same limitation should be placed upon the same words in the rest of the section. Conviction for an indictable offence means, I think, conviction for an offence upon indictment.
In the present matter, counsel provided the Court with extracts of the legislation relevant to Mr Fantini’s convictions in 1988. The Criminal Law Consolidation Act 1935-1975, in s 195, provided for the offence of obtaining money by false pretences, and provided for a maximum penalty of four years imprisonment. The Justices Act 1921 – 1981 provided:
“minor indictable offence” means –
(a) …
(b) a group III offence except –
…(irrelevant)
or
(c)…
“group III offence” means group III offence as defined by subsection 3 of section 4 of the Local and District Criminal Courts Act, 1926 – 1975.
The Local and District Criminal Courts Act 1926 – 1975, provided, in s 4:
“group III offence” means an indictable offence that is a felony or misdemeanour, the maximum punishment by way of imprisonment for which is imprisonment for a term not exceeding four years, whether or not a fine or any other penalty or order can be imposed or made in addition to or in substitution for imprisonment.
The Justices Act 1921 – 1981 provided, in s 120:
A court of summary jurisdiction constituted of a special magistrate has, subject to this Act, jurisdiction to hear and determine, in a summary way, a charge in respect of a minor indictable offence.
The Justices Act 1921 – 1981 provided, in s 132:
A conviction under the provisions hereof shall have the same effect as a conviction upon an indictment for the same offence would have had.
The Justices Act 1921 – 1981 provided, in s 4(1):
In this Act, unless inconsistent with the context-
…
“complaint” includes a charge of a minor indictable offence, if, and when, a court of summary jurisdiction proceeds to dispose of such charge summarily;
Mr Fantini was charged on information with the offences in relation to false pretences. The charges were heard by a court of summary jurisdiction pursuant to s 120 of the Justices Act 1921 - 1981. Mr dal Cin argued that the definition of “complaint” under the Justices Act 1921 – 1981 somehow operated to convert the information upon which the offences were charged into a complaint, and, at the same time, to convert the character of the offences from minor indictable to summary. I reject this submission. The definition is no more than an aid to the interpretation of the Act; it can not and does not operate to change the character of a document or an offence. I also reject Mr dal Cin’s argument that the comments of Hood J, in R v Ward, quoted above, support his contention that the procedure by which the offences were dealt with changed their character. It seems to me that those comments were confined to the specific set of statutory provisions with which the Supreme Court of Victoria was dealing and, in particular, to the wording of s 514 of the Crimes Act 1915 (Vic).
Mr dal Cin sought to rely on the remarks of Cox J in R v Adams (1995) 66 SASR 285. That case, in the Full Supreme Court, dealt with the question of whether summary offences could be tried in the District Court at the same time as indictable offences where the two types of offence were charged on the same information. Cox J said, at p.286:
The expression “indictable offence” does not appear to be defined in any of the relevant legislation. However, there is no doubt that it has generally signified in this State an offence that by its nature must be tried in the Supreme Court or the District Court unless (in the case only of an indictable offence that is also designated a “minor indictable offence”) the defendant elects to be tried summarily. Obviously that is the meaning that “indictable offence” has in subs (3) of s 9 of the District Court Act. See also s 5 of the Summary Procedure Act which expressly distinguishes for the purpose of that Act summary offences and indictable offences. However, the natural meaning of the words “indictable offence”, standing alone, is simply an offence triable on an indictment, which in this State is the criminal process by which a person is formally charged in the Supreme Court or District Court with a crime triable in such Court.
I do not think that these remarks support Mr dal Cin’s argument. Cox J specifically refers to the fact that minor indictable offences may be tried summarily. It is implicit that, in the course of that process, such offences remain minor indictable in character. Minor indictable offences remain “triable” in a higher court, notwithstanding that they may in fact be tried in a court of summary jurisdiction.
Ms Willows argued that the manner of the trial of the charges against Mr Fantini in 1988 did not alter the classification of those offences for any purpose, and that they were at all times indictable offences of dishonesty within the meaning of s 8A of the Land Agents Act 1994. Ms Willows cited Ross v The Queen (1979) 141 CLR 432 at p.433, The Queen v Doyle (1980) 48 FLR 92, at p.99 and Brogden v Commissioner of the Police Service (2001) 122 A Crim R 394 at p.399 in support of her argument. I agree with Ms Willows’ submissions.
It was common ground that it follows from that determination that Mr Fantini is disqualified by s 8A(b)(i) from registration as a sales representative pursuant to the Land Agents Act 1994. The decision of the Commissioner in relation to Mr Fantini’s application was correct.
The appeal is dismissed.