Guillot, David John v Hender, Francis William

Case [1998] FCA 1033


FEDERAL COURT OF AUSTRALIA

CRIMINAL LAW – Offences against Commonwealth – Imposing upon Commonwealth by untrue representation with view to obtaining benefit or advantage – Elements of offence – Whether benefit must be obtained or detriment suffered – Mental element.

CRIMINAL LAW – Attempt – Impossibility – Imaginary crime – Whether “attempt” provision of Crimes Act applies to offence of “endeavouring” to impose on Commonwealth – Whether accused can be convicted of endeavouring to impose where imposition established.

PRACTICE AND PROCEDURE – Summary dismissal – Abuse of process – Applicants committed for trial in County Court – Applicants seek Federal Court review of magistrate’s decision to commit – Whether Federal Court proceeding abuse of process –Whether filing of indictments in County Court superseded decision to commit.

Crimes Act 1914, ss 7, 29B
Administrative Decisions (Judicial Review) Act 1977
Federal Court Rules O 20 r 2

Coleman v Gray (1994) 55 FCR 412 mentioned
Flanagan v Australian Federal Police (1996) 60 FCR 149 applied
Yates v Wilson (1989) 168 CLR 338 applied
Dougherty v Coate (unreported, Full Court of the Federal Court, 7 June 1996) applied
Australian Securities Commission v Burns (1995) 130 ALR 89 applied
Seymour v Attorney‑General (Cth) (1984) 4 FCR 498 considered
Scouller v Brown (1994) 49 FCR 328 applied
Daemar v Stipendiary Magistrate at Southport (unreported, Queensland Court of Appeal, 18 March 1994) applied
Bacon v Salamane (1965) 112 CLR 85 applied
Reg v Wescombe [1987] VR 1012 applied
Reg v Lockett (1980) 41 FLR 164 applied
Jacobsen v Piepers (1980) 32 ALR 293 applied
Stephens v Abrahams (1902) 27 VLR 753 distinguished
Britten v Alpogut [1987] VR 929 considered
Reg v Cogley [1989] VR 799 considered
Reg v Mai (1992) 26 NSWLR 371 considered
Reg v Lee (1990) 1 WAR 411 considered
Reg v English (1993) 10 WAR 355 considered
Reg v Prior (1992) 91 NTR 53 considered
Reg v Barbouttis (1995) 37 NSWLR 256 considered
Kristo v The Queen (1989) 39 A Crim R 86 considered
Haughton v Smith [1975] AC 476 considered
Reg v Gulyas (1985) 2 NSWLR 260 mentioned
Reg v Shivpuri [1987] AC 1 considered
Reg v Sew Hoy [1994] 1 NZLR 257 considered
Reg v Donnelly [1970] NZLR 980 considered
The Commonwealth of Pennsylvania v Henley (1984) 474 A 2d 1115 considered
United States of America v Dynar (1997) 115 CCC (3d) 481 mentioned
Webley v Buxton [1977] QB 481 applied

DAVID JOHN GUILLOT, JOHN CAMERON STUCKEY, STANLEY WAYNE MURRAY, JOHN THEODORE v FRANCIS WILLIAM HENDER and STEPHAN NICHOLAS OBERS

VG 660 of 1997
VG 661 of 1997
VG 662 of 1997
VG 663 of 1997

SUNDBERG J
27 AUGUST 1998
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 660 of 1997
VG 661 of 1997
VG 662 of 1997
VG 663 of 1997

BETWEEN:

DAVID JOHN GUILLOT, JOHN CAMERON STUCKEY, STANLEY WAYNE MURRAY, JOHN THEODORE
APPLICANTS

AND:

FRANCIS WILLIAM HENDER
FIRST RESPONDENT

STEPHAN NICHOLAS OBERS
SECOND RESPONDENT

JUDGE:

SUNDBERG J

DATE OF ORDER:

27 AUGUST 1998

WHERE…

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AGLC
Guillot, David John v Hender, Francis William [1998] FCA 1033
Case
[1998] FCA 1033
Decision Date

CaseChat Overview and Summary

The applicants, David John Guillot and Francis William Hender, sought review of a magistrate's decision to commit them for trial in the County Court on charges related to criminal offences against the Commonwealth. Specifically, they contested the magistrate's ruling on the application of the "endeavouring" offence under the Crimes Act and the requirement for a benefit to be obtained or detriment to be suffered as an element of the offence. The applicants argued that the "endeavouring" offence was not a proper subject for an "attempt" provision and that the absence of a benefit or detriment should preclude conviction.

The central legal issues before the court were whether the provision of the Crimes Act that pertains to "endeavouring" to impose on the Commonwealth could be construed as an attempt, and if so, whether an accused could be convicted of such an endeavour if the actual imposition was not established. The court was also required to determine if the filing of indictments in the County Court negated the decision to commit the applicants for trial, thereby rendering the Federal Court proceedings an abuse of process.

In addressing these issues, the court found that the "endeavouring" offence under the Crimes Act was not an "attempt" and thus did not fall within the scope of the attempt provisions. However, the court held that the absence of a benefit or detriment did not necessarily preclude a conviction for the offence of endeavouring to impose. Regarding the procedural aspect, the court determined that the filing of indictments in the County Court did not supersede the magistrate's decision to commit, and hence, the Federal Court proceedings were not an abuse of process. Consequently, the court dismissed the applicants' motion and ordered them to pay the respondents' costs.

In summary, the court dismissed the applicants' motion for review of the magistrate's decision, ruled that the "endeavouring" offence was not an "attempt" and that a benefit or detriment was not a requisite element of the offence. The applicants were ordered to pay the respondents' costs. The court further determined that the filing of indictments in the County Court did not negate the magistrate's decision, and thus, the Federal Court proceedings were not an abuse of process.

Orders

Orders of the court

1.

The motion notice of which was filed on 6 May 1998 be dismissed.

2.

The second respondent pay the applicants’ taxed costs of the motion.

3.

The applications be dismissed.

4.

The applicants pay the respondents’ taxed costs of the applications.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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