Griffin and Anor v Marsh

[1995] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 1994

B e t w e e n -

JUDITH ANNE GRIFFIN and PATRICK JAMES DYMOCK ELLIOTT

Applicants

and

BEVERLEY KAY MARSH

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 11.45 AM

Copyright in the High Court of Australia

MR C. MURRAY:   May it please the Court, I appear for the applicants.   (of Blake Dawson Waldron)

MR J.D. HEYDON, QC:    I appear with MR M.A. WIGNEY for the respondent.   (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

BRENNAN CJ:   Yes, Mr Murray?

MR MURRAY:   Your Honours, this application, in the applicants’ submission, raises important questions.  In the applicants’ submission, the Court of Criminal Appeal erred and erred in ways which raise fundamental issues, or issues of importance of general application in the criminal law, particularly in relation to the Proudman v Dayman defence, but also in relation to section 264 of the Income Tax Assessment Act in its applications and the Commissioner’s powers under that section.

DAWSON J:   The section is?

MR MURRAY:   Section 264 of the Income Tax Assessment Act.  If your Honours will bear with me, I will deal firstly with the Proudman v Dayman questions and return towards the end to the Income Tax Assessment Act questions, that is the questions specifically addressed to section 264.

BRENNAN CJ:   Now, the objective facts are that the questions were asked and not answered, is that right?

MR MURRAY:   That is right, your Honour.

BRENNAN CJ:   And the reason why they were not answered was because of legal advice given that they were not obliged to answer.

MR MURRAY:   The applicants certainly had their counsel there with them.  Before they declined to answer, the took advice from their counsel and that advice from their counsel was to the effect that the questions did not concern the income or assessment of the companies named in the notices.  Therefore, there was no obligation to answer the questions.  The fact that the declining to answer the questions followed upon the taking of advice from counsel, however, has been agreed not to cause any different result to obtain in the case.  That is, it has been conceded that it really has no relevance in the determination of the question to be confronted.

BRENNAN CJ:   What was the mistake?

MR MURRAY:   What was the mistake?

BRENNAN CJ:   Yes.

MR MURRAY:   The applicants submit the mistake was as to the word “concerning” and the meaning of the word “concerning” in section 264(1)(b) of the Income Tax Assessment Act.  That paragraph of section 264 requires people to attend to give evidence concerning the income or assessment of particular named people, people named in the notice.

BRENNAN CJ:   There is no mistake about the question that was asked or the meaning of the question?

MR MURRAY:   The applicants do make a submission, your Honour, as you will have seen from the summary of argument, perhaps, rather cryptically, that there is also an argument about whether the prosecution could establish beyond reasonable doubt that the questions were within power, even if ‑ ‑ ‑

BRENNAN CJ:   Well, that is not the question I am asking you.  Focusing upon your Proudman v Dayman argument, I am endeavouring to discover what it is that is said to be the mistake which might enliven that argument.

MR MURRAY:   The applicants firstly say it is a mistake of fact as to the ambit of the ordinary word “concerning”.

BRENNAN CJ:   Well, let us decide whether it is a mistake of fact.  What was the mistake?

MR MURRAY:   The mistake was as to the ambit of the word “concerning”.

BRENNAN CJ:   I do not understand that.  Did they understand what question was being asked of them?

MR MURRAY:   Yes, subject to what I said before, your Honour, yes; essentially yes.

BRENNAN CJ:   And they understood what person was involved so far as the words “other person’s income or assessment” was concerned?

MR MURRAY:   Yes.  There were nine companies named in notices.

BRENNAN CJ:   The error or mistake was whether the question concerned that other person’s income or assessment?

MR MURRAY:   That is right.  That is the first position of the applicants, your Honour.

BRENNAN CJ:   How do you get any mistake of fact out of that situation?

MR MURRAY:   In the applicants’ submission, the word “concerning” is a word in the context of section 264 used in its ordinary sense.  The meaning of that word is a question of fact.  It is a word of less than precise ambit.  Questions of degree fall to be determined in trying to apply that word.  Errors in application of that word, in our respectful submission, are errors of fact.

DAWSON J:   But the question is really whether section 264(1)(b) applied.  You may have had to construe the section rather than the meaning of words, but actually in the end, it was the application of that paragraph and that, surely, would be a question of law.

MR MURRAY:   Certainly, at the end of the day, your Honour, the question was, were the questions within power?  If so, there was an obligation to answer them and that does, as your Honour says, require a question of construction.  But, in that question ‑ ‑ ‑

DAWSON J:   Of (b).

MR MURRAY:   Of paragraph (b), yes, your Honour.  But that question of construction calls for a number of steps and I have in the outline of submissions set out some authorities which deal with how the Court should approach the question of construction and application of provisions and how, in that course, or during that process, you do have questions of fact and questions of law which are going to have to be dealt with.  And, so, even if one looks at the question from the point of view of having to construe the section as a whole, one is dealing there with mixed questions, in the applicants’ submission, of fact in law and ‑ ‑ ‑

DAWSON J:   I find it hard, I must say, that the construction of a section in an Act is a question of fact.

MR MURRAY:   The construction of the section ‑ the meaning of the words used in the section and the application of the section so construed to the facts, does raise, in the applicants’ submission, questions of fact as, indeed, it raises questions of law.

DAWSON J:   But the mistake here was as to the construction of the section because it was a mistake as to the meaning of the word in the relevant paragraph.

MR MURRAY:   In the applicants’ submission, your Honour, the mistake, if the mistake be as to the meaning of the word “concerning”, was a mistake of fact.  If it was a mistake more generally as to the meaning of some other part of the section or the construction overall, then in the applicants’ submission, that involved questions of fact, being the meanings to be attributed to the words used in the section which were used in their ordinary sense and questions of law relating to the effect, ultimately, of all the words in the section and then, further, perhaps ultimately, questions of fact of how that section properly construed should be applied to the particular questions that were asked.  The ultimate jury question, if you like, in that situation.

DAWSON J:   You have some authority for the proposition that the proper construction of a particular word in a section of a statute is a question of fact?

MR MURRAY:   Yes.  If your Honours will go to The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126, at pages 137 to 138, Sir Frederick Jordan at that point and in that passage sets out a number of steps and the first step, in the middle of the page, he says:

(1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law ‑

and he then goes on to set out how that question is to be resolved.  He notes, towards the bottom of that paragraph numbered (1), that:

the meaning of a technical legal term is a question of law.

Secondly, he goes on to say:

The question whether a particular set of facts comes within the description of such a word or phrase is one of fact ‑

If one goes over the page, we might skip paragraph numbered (3) and go to paragraph numbered (4) and he says, about - again in the middle of the page:

If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.

The decision of Sir Frederick Jordan in that case has been referred to in later cases and echoed in later cases.  I have given, in the outline ‑ ‑ ‑

GUMMOW J:   But, do we not have to come to Hope v Bathurst City Council?

MR MURRAY:   We can certainly do that, your Honour.

GUMMOW J:   Well, it is what is put against you?

MR MURRAY:   Yes, I, in fact, have referred to it myself in my submissions.  If one goes to page 7 in the judgment of Mr Justice Mason and one goes down to about point 7 on the page, the paragraph beginning “However”, his Honour Mr Justice Mason said at that point:

However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words.

And his Honour, in the context there, says that that is a question of fact.  His Honour then refers to the judgment of Justice Kitto in the NSW Associated Blue-Metal Case.

GUMMOW J:   Here the phrase is concerning income.

MR MURRAY:   Concerning income?  Or assessment, in fact.

GUMMOW J:   Yes, that is right.  It is a compound concept and it is just pregnant with law.

MR MURRAY:   And with fact, your Honour, in our submission.  And that is the point we make, that ‑ ‑ ‑

BRENNAN CJ:   What is the question that was asked that was the subject of this misconception?

MR MURRAY:   There were, in fact, three questions, but they are in fairly similar form.

BRENNAN CJ:   Can you point to it in the record?

MR MURRAY:   If one goes to the application book, your Honour, and if one goes to page 24, your Honour will find there, in fact, the transcript of the examination of Mrs Griffin, one of the applicants.  In the middle of the page, at point 15, Mr Morrow says:

Mrs Griffin, have you ever had any of the documents described in the notice in your custody or under your control?

And that question was not answered.  In considering that question, it is worth noting the form of a notice.  The question itself refers back to the notice;  it refers to documents described in the notice.  The notices themselves which appear in the application book ‑ Mrs Griffin’s notice appears at page 8.  It is worth going to those.  You will see on the first page of the notice that the Commissioner has required Mrs Griffin to attend and give evidence concerning the income or assessment of 15 named companies ‑ I think it is 15 ‑ for a period of nine years.  It is a very, very broad requirement.  If one goes over to page 2, one will see that the notice also requires Mrs Griffin:

to produce such of the documents described in the schedule which are in your custody or under your control and which relate in any way to the income or assessment ‑

of the same 15 companies for the same period.  If then one goes ‑ ‑ ‑

GUMMOW J:   Her mistake on page 24, line 15 and line 17, was that she regarded herself as not legally obliged to answer.  She regarded herself as legally entitled to stand silent because of a particular construction placed upon section 264.

MR MURRAY:   She certainly regarded herself as not being obliged to answer the question, your Honour.

GUMMOW J:   She understood what the question was.  What is the mistake, other than a mistake of legal obligation imposed by the law of the Commonwealth to answer?

MR MURRAY:   In our submission, your Honour, the notion of “concerning” and just what that word, in its imprecise ambit requires in a context such as this, is a question of fact and minds may differ as to whether a particular question does or does not concern the process that the Commissioner was undertaking.

BRENNAN CJ:   But, look at the question:

Have you ever had any of the documents described in the notice in your custody or under your control?

The documents described in the notice are those which relate in any way to the income or assessment of the nominated companies and those are the nominated companies concerning the income or assessment of which the inquiry is being held.  What possible mistake is there?

MR MURRAY:   The mistake, with respect, your Honour, is whether that question as to whether Mrs Griffin had ever had any of these documents, is a question which is so connected with the income or assessment and the process the Commissioner is engaged upon, as to warrant an answer and that depends on the meaning, the ambit, of the ordinary word “concerning”.  And the meaning of that word is a question of fact.  The application of that word ‑ ‑ ‑

GUMMOW J:   There may have been an error of law in the advice she was given.  I do not think there is a mistake in the relevant universal discourse.

BRENNAN CJ:   You can say that there are some questions such as whether a remark is insulting, is a question of fact and the meaning of “insult” can be looked at as a question of fact according to ordinary community standards.  But, to say that there is some error of fact in coming to a conclusion, if such a conclusion was come to, that the question, “Have you ever had this company’s documents in your possession?” does not concern the income or assessment, seems to me to be nothing but a question of law.  It could not be anything else.

MR MURRAY:   Well, with respect, your Honour, on the authorities that I have taken you to, it seems to be established that where words are used in their ordinary context ‑ and the critical word, in my submission, in the context that we are looking at is “concerning”.

GUMMOW J:   Yes, but you begin at the wrong point.  Let me say this to you:  you have to begin with the question that is asked.  You keep getting down the track.

MR MURRAY:   Yes, but the question still remains, your Honour, whether that question which was asked is one which, within the ordinary meaning of the word “concern”, the ordinary ambit of the word “concern”, which is not a precise word ‑ ‑ ‑

DAWSON J:   She did not turn her mind to that question, she sought legal advice on it.

MR MURRAY:   She inquired of her counsel ‑ ‑ ‑

DAWSON J:   Who gave legal advice, which she then accepted.

MR MURRAY:   Well, with respect, your Honour, that almost begs the question to state it in that way.

DAWSON J:   Well, you say he gave factual advice?

MR MURRAY:   He gave advice, your Honour.  In my respectful submission, that advice was as to a mixed state of fact and law, necessarily so.  One of the special leave questions we seek to raise is, if that be right and if the mistake in this question is a mistake as to mixed fact and ‑ ‑ ‑

DAWSON J:   The question she would have asked counsel, implicitly or expressly, would have been, “Am I, in law, obliged to answer this question?”

MR MURRAY:   In one sense, that is right, your Honour:  “Am I obliged to answer this question?” but the answer to that question depends on both questions of law and questions of fact.  Indeed, Mr Justice Hunt in the Court of Criminal Appeal and Mr Justice James, who concurred with him, themselves considered that the question asked either raised a question of mixed fact and law or a question of law.  They were not prepared, in their judgment, to say that it was not a mixed question.  Indeed, we say it must necessarily be a mixed question.  Then the special leave question arises as to how does one apply the Proudman v Dayman defence in a context such as that?

DAWSON J:   Her adviser may have considered mixed questions of fact and law but the advice he gave, which was as to legal obligation, is only a question of law.

BRENNAN CJ:   The question of whether a question concerns a subject matter may be a question of mixed fact and law but the mistake, in this case seems to have been nothing but a mistake of law.  Because, there was no error in the perception of the objective circumstances.

MR MURRAY:   That is not clear, your Honour, with respect.  The position is that the applicants both were told by their counsel that there was no obligation to answer the question but, in our view, that advice of counsel was as to a mixed state of fact and law.  There is no ‑ ‑ ‑

DAWSON J:   As to an obligation, or the absence of an obligation.

MR MURRAY:   One can look at it that way, your Honour, but if one goes back to a different level of abstraction, the question is, as his Honour Mr Justice Brennan stated earlier, whether the question, in fact, concerned, not whether there was a legal obligation to answer.  The question was really two sides of the same coin.  If one looks at it one way, one can say, that is a question of law;  if one looks at it the other way, which you are equally entitled to do and which is the way his Honour Mr Justice Brennan referred to it previously, then you have a mixed question of fact and law.

BRENNAN CJ:   Mr Murray, your time has expired on this point.  I think you have another point you wish to raise, have you not?

MR MURRAY:   Yes, your Honour.

BRENNAN CJ:   We will give you an extension of time to raise that extra point for another three minutes.

MR MURRAY:   I am indebted to your Honour.  The other matter that the applicants sought to raise was as to the proper construction of section 264 of the Income Tax Assessment Act.  There were two points that the applicants sought to make there.  The first point is this, that the power conferred by section 264(1)(b) of the Income Tax Assessment Act is a limited power and the Commissioner must so conduct himself as to observe the limitation in that paragraph.  Further, we submit that there is a clear and important difference between the powers conferred by paragraph 264(1)(a) of the Act and that conferred by paragraph 264(1)(b).  I could take your Honour to the decision of this Court in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited but I will just pass on from that.

In the applicants’ submission, the question the subject of the applicants convictions, did not conform to the statute of limitations inherent in paragraph 264(1)(b).  That is because there must, inevitably, be some doubt as to what documents the questions were referring to in a circumstance where it was not established and could not possibly be

established that all the documents referred to in the notice, that is, all of the documents described in the schedule to the notice, would necessarily relate to the income or assessment of the companies named in the notice.

BRENNAN CJ:   That is how the documents were described as relating.

MR MURRAY:   Yes, but the factual confusion, perhaps, is this, your Honour, that when the applicants attended, they were first asked to produce documents that were called for.  In the case of Mr Elliott, he produced what documents he had; in the case of Mrs Griffin, she had no documents to produce.  They were then asked about other documents described in the notice and if one goes back to the notice, there were really three conditions that needed to be met before any document was called for.  It had to be described in the notice in the person’s custody or possession and it had to relate to the income or assessment of the named companies. 

By the time the documents have already been produced, the question as to whether Mrs Griffin had ever seen any other documents described in the notice, means we are not talking about documents which met all three of the descriptions, all three of the conditions, because one of them has already been passed, we are dealing then at best with the other two, although that is not clear.  The questions could be referring to documents meeting all three descriptions or sensibly ‑ ‑ ‑

BRENNAN CJ:   I think your time has expired, Mr Murray.

MR MURRAY:   Yes, if it please the Court.

BRENNAN CJ:   We need not trouble you, Mr Heydon. 

There is no error in the decision of the Court of Criminal Appeal.  For that reason, special leave is refused.

MR HEYDON:   We would apply for costs, if your Honour pleases.

BRENNAN CJ:   In a criminal matter?

MR HEYDON:   I am instructed to make the application, your Honour.

BRENNAN CJ:   We need not trouble you on that, Mr Murray.   The application is refused; no order as to costs.  The Court will now adjourn until 9.30 am tomorrow morning.

AT 12.10 PM THE MATTER WAS CONCLUDED