Guillot, David John v Hender, Francis William
[1998] FCA 1033
•27 AUGUST 1998
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decision to commit – Whether Federal Court proceeding abuse of process –Whether filing of indictments in County Court superseded decision to commit.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
APPLICANTSAND:
FRANCIS WILLIAM HENDER
FIRST RESPONDENTSTEPHAN NICHOLAS OBERS
SECOND RESPONDENT
JUDGE:
SUNDBERG J
DATE OF ORDER:
27 AUGUST 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The motion notice of which was filed on 6 May 1998 be dismissed.
The second respondent pay the applicants’ taxed costs of the motion.
The applications be dismissed.
The applicants pay the respondents’ taxed costs of the applications.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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
APPLICANTSAND:
FRANCIS WILLIAM HENDER
FIRST RESPONDENTSTEPHAN NICHOLAS OBERS
SECOND RESPONDENT
JUDGE:
SUNDBERG J
DATE:
27 AUGUST 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE APPLICATIONS
Each of the first, second and third applicants has applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision made by the first respondent (“the Magistrate”) that the applicant be committed for trial in respect of charges that on specified dates he imposed or endeavoured to impose upon a public authority under the Commonwealth, namely the Australian Fisheries Management Authority (“AFMA”), by an untrue representation with a view to obtaining a benefit, contrary to s 29B of the Crimes Act 1914 (Cth). The fourth applicant has applied for review of the Magistrate’s decision that he be committed for trial in respect of charges that on specified dates he was knowingly concerned in the contraventions of s 29B of the Crimes Act by the other applicants, contrary to s 5 of the Crimes Act. Each applicant seeks a declaration that the evidence before the Magistrate discloses no offence known to the law, and an order setting aside the Magistrate’s decision that the applicant be committed for trial in respect of the charges.
AGREED FACTS
For the purposes of the applications, and for no other purpose, the parties have agreed the following facts.
At all material times the first applicant was the Master of the fishing vessel Empress Pearl, the second applicant was the Master of the fishing vessel Cheryl Ann and the third applicant was the Master of the fishing vessel Lady Cheryl.
At all material times the fourth applicant was an employee of the first applicant.
At all material times John Charles Guillot held licences pursuant to s 9(2) of the Fisheries Act 1952 (“the 1952 Act”) as preserved by s 6 of the Fisheries Legislation (Consequential Provisions) Act 1991 (“the 1991 Act”) in respect of the vessels, which authorised their use for the taking of fish in proclaimed waters or a specified area of the proclaimed waters or a specified managed fishery as described in Sch 2 of the South East Fishery (Individual Transferable Quota) Management Plan 1991 (“the 1991 Plan”) upon the terms and conditions therein set forth. The area of proclaimed waters/managed fishery specified in each licence was the area of the South East Fishery (“SEF”) described in Sch 2 of the 1991 Plan.
On four occasions between 23 July and 6 August 1992 the first applicant knowingly made false statements to AFMA in respect of a quota of orange roughy pertaining to the Empress Pearl, in that he made untrue representations as to the actual amount of orange roughy unloaded and consigned from the vessel with a view to obtaining a benefit, namely to enable him to fish further for an amount of orange roughy equivalent to the undeclared amounts. The first applicant was paid a percentage of the value of the total catch. The undeclared amount in respect of each trip is specified.
On twelve occasions between 20 February and 22 August 1992 the second applicant knowingly made false statements to AFMA in respect of a quota of orange roughy pertaining to the vessel Lady Cheryl, in that he made untrue representations as to the actual amount of orange roughy unloaded and consigned from the vessel with a view to obtaining a benefit, namely to enable him to fish further for an amount of orange roughy equivalent to the undeclared amounts. The second applicant was paid a percentage of the value of the total catch. The undeclared amount in respect of each trip is specified.
On six occasions between 18 June and 6 August 1992 the third applicant knowingly made false statements to AFMA in respect of a quota of orange roughy pertaining to the vessel Cheryl Ann, in that he made untrue representations as to the actual amount of orange roughy unloaded and consigned from the vessel with a view to obtaining a benefit, namely to enable him to fish further for an amount of orange roughy equivalent to the undeclared amounts. The applicant was paid a percentage of the value of the total catch. The undeclared amount in respect of each trip is specified.
On ten occasions between 17 February and 7 July 1992 the fourth applicant was knowingly concerned in the making by the other applicants of false statements to AFMA as to the actual amount of orange roughy unloaded and consigned from each of the vessels. The undeclared amount in respect of each vessel is specified.
The SEF covers the area of the Australian Fishing Zone extending southwest from Barranjoey Point (north of Sydney) around the New South Wales, Victorian and Tasmanian coastlines to Cape Jarvis in South Australia.
The basic failure of the boat unit system of management to address the problem of overexploitation in the SEF led to a review of the management systems for the SEF. The management of the SEF by the Individual Transferable Quota (“ITQ”) system was given effect by the 1991 Plan and was applied by AFMA from 1 January 1992. The 1991 Plan allocated ITQs to eligible operators for sixteen of the major commercial fish species in the SEF. Eligibility was restricted to those operators who held or were entitled to hold an endorsed licence to fish in the SEF under the 1988 Plan. The level of allocation was based on a combination of an operator’s catch history in the SEF in the period 1984 to 1989, determined by reference to independent catch documentation, and boat units held under the 1988 Plan.
Every year total allowable catches (“TAC”) are set for each of the sixteen species under quota restrictions in the SEF. The total number of quota units in the fishery for a species is divided into the TAC to give the kilogram value of a quota unit. The number of units held by a person dictates the total tonnage the person is entitled to take in that fishing year.
The false statements referred to above were made on forms known as SEF 2 forms, being forms prescribed under the 1991 Plan, which was a management plan promulgated under s 7B of the 1952 Act and published in Commonwealth Gazette No S331.
SEF 2 forms were divided into two sections, being Part A/B and Part C. Part A/B was to be completed by the Master of the vessel to which quota units were assigned. The accurate weight of orange roughy and other quota fish unloaded from the vessel was recorded on the SEF 2 form which the Master then signed and dated, certifying that the information provided was a complete and accurate record. Mis‑reporting and non‑reporting of orange roughy caught in the SEF could have a significant impact on the setting of the TAC, since the catch information was one of two sources of information used to determine stock size and harvest strategy.
SEF 2 forms were used by AFMA mainly to decrement and monitor catches against available quota units. Under the 1991 Plan a person could apply to have quota units assigned to a boat. Further quota could be “leased in”, and the boat was permitted to take fish equivalent to the kilogram value of the assigned/leased quota units in a season.
A licence holder’s entitlements to further catches of orange roughy at any given point in a quota year was determined by the initial quota allocation, plus or minus any “leases”, less any recorded orange roughy catches for the year.
The 1952 Act (save for Part IVA) was repealed on 3 February 1992 by the 1991 Act. Under s 6 of the 1991 Act licences granted under the 1952 Act continued in force until their dates of expiry, and instruments made or determined under the 1952 Act and in force immediately before the commencement of s 6 continued in force.
On 2 September 1992 the Federal Court held that par 11 of the 1991 Plan was beyond the delegated legislative authority of the Minister for Primary Industries and Energy and therefore invalid. Paragraph 11 dealt with the mechanism whereby ITQ was allocated to individual licence holders. On 19 February 1993 the Full Court upheld that decision: Minister for Primary Industry v Austral Fisheries Pty Ltd (1993) 112 ALR 211. That case had the effect of invalidating par 11 of the 1991 Plan, which related to the mechanism for the allocation of quota, but did not otherwise, in terms, purport to affect the validity of the 1991 Plan as a whole. Accordingly, AFMA continued to implement the 1991 Plan, with the exception of par 11, throughout 1992. The Austral Case also had the effect of rendering inoperative the requirement in sub‑reg 18 of the regulations made under the 1952 Act to report and record catches of orange roughy, since that requirement only applied to boats to which units of quota had been assigned under par 11 of the 1991 Plan.
On 23 December 1994 the Federal Court held that the 1991 Plan, all fisheries notices issued pursuant thereto, and conditions on licences seeking to restrict fishing by reference to quotas assigned thereunder, were void ab initio: Coleman v Gray (1994) 55 FCR 412.
MOTION FOR DISMISSAL
The second respondent filed a notice of motion indicating that at the hearing of the applications he would seek orders that each application be stayed or dismissed on the ground that it is frivolous and vexatious, an abuse of the process of the Court, and foredoomed to fail. The notice of motion is supported by an affidavit sworn by a solicitor employed by the Commonwealth Director of Public Prosecutions, who acts on behalf of the second respondent. The affidavit sets out the course of proceedings since the charges were laid. The principal events are as follows:
On 21 November 1995 committal proceedings were set down for a one month hearing commencing on 15 April 1996.
On 28 February 1996 the applicants issued proceedings in this Court challenging the validity of search warrants executed during the investigation into the alleged offences.
On 18 March 1996 the date of the committal hearing was vacated and the matters were listed for hearing commencing on 8 July 1996.
On 30 May 1996 the challenge to the search warrants was argued in the Court.
On 5 July 1996 the committal proceedings were again adjourned to a date to be fixed as the Court had not yet delivered its decision on the search warrants.
The committal proceedings were listed for hearing commencing on 28 May 1997.
On 27 May judgment was delivered in the search warrant proceeding.
On 28 May the Magistrates’ Court dismissed the applicants’ application for vacation of the date fixed for the committal hearing.
The committal proceedings commenced on 14 July and witnesses were cross‑examined over a period of twelve days.
On 5 August the Magistrate announced that in his opinion the evidence was of sufficient weight to support convictions for the offences charged.
On 8 August the applicants were committed for trial in the County Court. They were remanded on bail to appear for arraignment on 17 December 1997.
At a pre‑trial conference on 8 December 1997 it was determined that the trial of the first and fourth applicants, that of the second and fourth applicants and that of the third and fourth applicants (“the three trials”) would be listed sequentially, if possible, the anticipated duration of the first trial being ten weeks.
The indictments in respect of the three trials were filed in the County Court on 16 December 1997.
On 17 December the applicants were arraigned and entered pleas of not guilty. The trials were fixed for 28 September 1998.
Fragmentation
Except in exceptional or extraordinary circumstances, criminal proceedings should not be fragmented by other courts entertaining applications of various kinds by or against one or more of the participants in the criminal trial: Flanagan v Australian Federal Police (1996) 60 FCR 149 at 187. This “fragmentation” principle applies to applications for review under the Administrative Decisions (Judicial Review) Act, including applications for review in respect of committal proceedings: Yates v Wilson (1989) 168 CLR 338 at 339; Dougherty v Coate (unreported, Full Court of the Federal Court, 7 June 1996); Australian Securities Commission v Burns (1995) 130 ALR 89 at 92.
In Flanagan at 187 the Full Court distinguished between two types of case. The first is where there are claims for relief involving pure questions of law, emerging from a context of undisputed facts, especially questions the resolution of which may clarify the law for other cases. The second is where the claims are based substantially on contentious matters of fact, including questions of mixed fact and law. The Court said at 188:
Prima facie there is much to be said in favour of the courts, in the exercise of their discretion, hearing and determining claims of [the first type], if they are brought forward at an appropriate time. Where the facts are simple and few and the point is one of law, a claim may, as an exception to the fragmentation principle, be entertained on an application for judicial review …. Equally, the courts do not ordinarily entertain claims of [the second type] … because the fragmentation of the criminal process which is involved is not outweighed by any real benefit that might flow from the collateral resolution of the issue.
The present case is of the first type. The parties having agreed the facts, the question is whether, assuming the prosecution establishes the factual aspects of the case, the applicants can be convicted of the offences charged having regard to the repeal of the 1952 Act and/or the invalidity of the 1991 Plan. However, that is not the end of the matter. The fact that a case is of the first Flanagan type merely establishes the prima facie position to which the Full Court refers. In such a case, the court may entertain an application for review. Whether it does is a matter within its discretion on the facts of the particular case, significant matters being that the facts are agreed and the issue is one of law. But the whole of the circumstances must be taken into account: Flanagan at 187.
Factors pointing in favour of the Court entertaining the present applications are that one form of relief sought is a declaration that the offences charged are not known to the law (cf Coleman v Gray at 422), the facts are agreed, and a pure question of law is involved. As against this stand the following matters:
The events the subject of the charges are alleged to have taken place in 1992.
The charges were laid in 1995.
The orderly process of the proceedings has already been interrupted by an unsuccessful application to the Court in February 1996 which resulted in the vacation of the date initially fixed for the committal hearing and the adjourned date.
Twelve months were lost as a result of that application.
The committal hearing listed for 28 May 1997 was adjourned to 14 July 1997 because of submissions made by the applicants arising out of the fact that the search warrants judgment had been delivered only a day before the first‑mentioned date.
On 8 August 1997 the applicants were committed for trial.
The trial has been set down for 28 September 1998.
The Criminal Trial Listing Directorate has indicated that any legal argument common to the trials can be dealt with before the trial date at a time convenient to all parties.
Most of the above factors relate to one of the important considerations bearing upon the exercise of the discretion, namely the public interest in the expeditious resolution of criminal proceedings. In Seymour v Attorney‑General (Cth) (1984) 4 FCR 498 at 501, in a passage approved in Flanagan at 187‑188, Jenkinson J, with whom Fox J agreed, said:
his Honour determined that he should not exercise the discretionary power to quash the order for committal …. In that conclusion he was in my opinion clearly right. Against the interest of the appellant in the result of the committal proceeding and in the conduct of that proceeding according to law must be weighed the public interest in the expeditious resolution of accusations of crime. The longer such an accusation remains unresolved the greater the risk of serious harm to the community. The risks are multifarious: the fading of witness’s recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight ….
The County Court has indicated that any legal argument common to the cases can be dealt with before the trial commences. There is accordingly no procedural unfairness occasioned by leaving the questions sought to be raised in these applications to be determined by that Court, where in the ordinary course they would be dealt with. See Scouller v Brown (1994) 49 FCR 328 at 332 and Daemar v Stipendiary Magistrate at Southport (unreported, Queensland Court of Appeal, 18 March 1994) at 4.
Utility of relief sought
The second respondent contended that a further consideration militating against interference in the criminal process in the present case is that the decision of the Magistrate which it is sought to set aside has been superseded by the indictments filed in the County Court, and that to grant the relief the applicants seek will not affect the indictments. In Scouller v Brown (1994) 49 FCR 328 Cooper J refused to grant an injunction to restrain the Director of Public Prosecutions from proceeding upon indictments filed in the Supreme Court of Queensland at the suit of defendants who wished to argue in judicial review proceedings that the Act under which they had been charged was invalid. His Honour said at 332:
The indictment having been presented, the criminal jurisdiction of the Supreme Court of Queensland has been enlivened …. The relevant criminal proceeding now facing each of the applicants is the proceeding initiated by the indictment and not the criminal proceedings instituted in the lower court; the criminal proceedings initiated by charges in the lower court leading to committal are spent …. The consequence is, in my view, that a review of the decision of the Magistrate to commit has no relevance to the new proceedings in the Supreme Court of Queensland and cannot result in any order terminating those proceedings.
In Daemar v Stipendiary Magistrate at Southport (unreported, Queensland Court of Appeal, 18 March 1994) the magistrate committed Daemar for trial, and an indictment was presented in the District Court. Shortly before the trial was due to commence Daemar applied to the Supreme Court of Queensland under the Judicial Review Act 1991 (Qld) for an order quashing the magistrate’s decision. The application was dismissed. Daemar filed notice of appeal and applied for a stay of the indictment pending the determination of the appeal. Fitzgerald P dismissed the application. His Honour said that the premise upon which the application was based was flawed. Even if the magistrate had erred in committing the applicant for trial, the matter had proceeded past that stage to the presentation of an indictment, and no attempt had been made to challenge the decision to present the indictment.
Counsel for the applicants did not contest the correctness of these cases, and abandoned the prayer for an order setting aside the Magistrate’s decision to commit.
Conclusion on motion
In the exercise of my discretion I have decided to entertain the applications. The facts are agreed. The question is purely one of law. What is sought is a declaration that the offences charged are not known to the law. In addition I have taken into account that the parties asked me to hear the substantive applications before ruling on the fragmentation motion. The fact that I have heard full argument on the substantive point is a matter in favour of my dealing with it.
SECTION 29B
Section 29B of the Crimes Act provides that
Any person who imposes or endeavours to impose upon the Commonwealth or any authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage, shall be guilty of an offence.
The sections surrounding s 29B are worthy of note for the contrast they provide. Under s 29A(1) it is an offence for a person, with intent to defraud, to obtain from the Commonwealth or any public authority under the Commonwealth any chattel, money, valuable security or benefit by a false pretence. Under s 29A(2) it is an offence for a person, with intent to defraud, to cause or procure the Commonwealth or a public authority under the Commonwealth to pay any money or to deliver or give any chattel, valuable security or benefit to any person by a false pretence. Under s 29C it is an offence to make an untrue statement in connexion with an application for a grant, payment or allotment of money or allowance under a law of the Commonwealth. Under s 29D it is an offence to defraud the Commonwealth or a public authority under the Commonwealth.
The elements of the offences in s 29B are that the person charged imposed or endeavoured to impose upon the Commonwealth by a representation which was untrue to his knowledge, and that the representation was made with the object of obtaining a benefit or advantage. It is not necessary for the prosecution to prove that the benefit or advantage was obtained as a result of the representation, though the fact that the representor achieved his aim may be relevant in establishing that the Commonwealth was imposed upon. See Bacon v Salamane (1965) 112 CLR 85 at 92‑93 per Owen J, with whom Barwick CJ and Menzies J agreed. The prosecution need not establish that the representor cheated or defrauded or endeavoured to cheat or defraud the Commonwealth: Reg v Wescombe [1987] VR 1012. In Wescombe at 1017 McGarvie J said that a person imposes upon the Commonwealth or authority either by cheating it or by wilfully deceiving it; that while cheating involves both wilfully deceiving and causing a detriment, willfully deceiving does not ordinarily involve the imposition of a detriment. It has often been said that it is preferable to use the words of the section rather than other words, such as cheating and wilfully deceiving: Bacon v Salamane at 96; Lockett at 167; Jacobsen at 302; Wescombe at 1015 per Murray J. The concepts involved in s 29B are simple – the making of a representation which the representor knows to be untrue with the object of obtaining a benefit or advantage. To substitute for those concepts words such as “cheating” and “wilfully deceiving” creates uncertainty which does not inhere in the words the legislature has used. An intent to defraud is not necessary: Reg v Lockett (1980) 41 FLR 164 at 167, 168. The mental element that must exist is the object of obtaining a benefit or advantage by means of a representation that is known to be untrue: Lockett at 16; Jacobsen v Piepers (1980) 32 ALR 293 at 302.
Imposing
The case for the applicants is that since at the time they made their false representations there was no valid quota scheme in operation, so that there was no limit on the quantity of fish they could catch, it was not legally possible for them to impose on AFMA. There were said to be three reasons for this. The first was that the applicants had not derived any benefit as a result of the representations, because for want of a valid quota scheme they obtained no fishing catch greater than their entitlement. However it is not an element of the offence in s 29B that the representor obtain anything as the result of the representation: Bacon v Salamane at 92‑93. The second reason was that AFMA was not deprived of anything as a result of the representations because it did not part with any quota of fish greater than that to which the applicants were entitled. But it is not a necessary element of the offence that the Commonwealth or the authority suffer a detriment as a result of the representation: Wescombe at 1016‑1017. The third reason was that the applicants had no mens rea. The lack of mens rea was described by counsel as the lack of any intention on the applicants’ part to commit an offence. But the mental element involved in s 29B is the object of obtaining a benefit or advantage by means of a representation that is known to be untrue. The agreed facts are that each of the first three applicants knowingly made a false statement to AFMA in respect of a quota of orange roughy (in that he made an untrue representation as to the actual amount of orange roughy unloaded and consigned from the relevant vessel), that the untrue representations were made with a view to obtaining a benefit (namely to enable each of the first three applicants to fish further for an amount of orange roughy equivalent to the undeclared amount), and that the fourth applicant was knowingly concerned in the making of the false statements by the other applicants. Thus both elements of the mens rea are present.
Stephens v Abrahams (1902) 27 VLR 753 was relied on by the applicants. There the defendant was charged with being “unlawfully concerned in presenting to an officer of Customs a certain document purporting to be a genuine invoice which was not in fact a genuine invoice with intent to defraud the revenue contrary to the Commonwealth Customs Act 1901”. Under s 234(c) of that Act it was an offence to present a document purporting to be a genuine invoice which was in fact not genuine. Under s 241 a person could at the same time be charged with an offence against the Act and with “an intent to defraud the revenue”. The goods to which the invoice related were not dutiable in Victoria. A bill which proposed to tax such goods had been introduced into the Commonwealth Parliament prior to the alleged offence, but had not then become law. The defendant’s conviction was set aside by the Supreme Court. The applicants relied on the following passage from the judgment of Hodges J at 767:
I think there is a short way of testing whether he intended to defraud the revenue, or whether the acts which he did were done with that intention; and it seems to me that it can be tested in this way. Assume that the invoice was false; that the amount was incorrectly stated; that he succeeded in deceiving the Customs officer by reason of his invoice, which falsely stated the value, and got possession of his goods without paying what the Customs officer demanded; that he succeeded in his object; and that the whole thing was completed – did he defraud the revenue? He did not take anything out of the revenue which was in it; he got nothing by it. He did not prevent anything getting into the revenue which the revenue was entitled to get on the true state of the facts. Now, then, if a person accomplishes his whole purpose, and does not effect a defrauding of the revenue, it seems to me that it is not possible to say that the act was done with intent to defraud.
Stephens v Abrahams does not assist the applicants. The mens rea of the offence there in question was an intent to defraud. Because the defendant took nothing out of the revenue and did not prevent anything going into it, he could not have defrauded the revenue, and thus no act had been done with intent to defraud. What was said in that case would be applicable to an offence within s 29A (false pretence with intent to defraud) or s 29D (defrauding the Commonwealth). But it is not applicable to s 29B, which involves no intention to defraud or cheat, but merely knowledge that the representation is untrue and the object of obtaining a benefit or advantage as a result. See Lockett at 167, 168.
In my view the imposition charges disclose an offence under s 29B.
Endeavouring to impose
(a)An “imaginary crime”
It was common ground that “endeavours” in s 29B means “attempts”. The argument was that had the applicants been successful in obtaining a benefit by virtue of the impositions they would not have committed any offence because the 1991 Plan was invalid. An attempt to achieve the same purpose is not capable of being an offence. While the applicants may have thought they were committing a crime, their activities did not amount to a crime. It was an “imaginary crime”‑ an offence not known to the law.
A person cannot be convicted of an attempt to commit a crime which does not exist, even though the accused believed that what he was doing was a crime. See Britten v Alpogut [1987] VR 929 at 938 (Full Court); Reg v Cogley [1989] VR 999 (Full Court); Reg v Mai (1992) 26 NSWLR 371 (Court of Criminal Appeal); Reg v Lee (1990) 1 WAR 411 at 423‑424, 433 (Court of Criminal Appeal); Reg v English (1993) 10 WAR 355 at 359‑360, 366 (Court of Criminal Appeal); Reg v Prior (1992) 91 NTR 53 at 58. Britten v Alpogut is the leading case, and has been followed in the other cases mentioned. In Reg v Barbouttis (1995) 37 NSWLR 256 (a conspiracy case) a majority of the Court of Criminal Appeal approved Britten v Alpogut and the cases that have followed it. See per Gleeson CJ at 262‑263 and per Dunford J at 277. The High Court granted special leave to appeal in Barbouttis, but the leave was later revoked when it was discovered that the form of the indictment did not in fact raise a case of impossibility of commission. In Kristo v The Queen (1989) 39 A Crim R 86 the South Australian Court of Criminal Appeal held that factual impossibility is still a defence to a charge of attempt, and that the trial judge had wrongly followed Britten v Alpogut. However at 103 the Court said it was unnecessary to decide whether that case correctly states the law in South Australia. It seems clear from the cases which the Court applied (Haughton v Smith [1975] AC 476 and Reg v Gulyas (1985) 2 NSWLR 260) that it did not approve of Britten v Alpogut. The Court accepted that it is a defence to a prosecution for attempting to commit a crime that the crime is an imaginary one. What it did not accept was that factual impossibility is not a defence, and it applied the decision of the House of Lords in Haughton v Smith. Thus it is not necessary in the present case to choose between the two lines of authority, though the reasoning in Britten v Alpogut seems to me to be entirely persuasive. See also Reg v Sew Hoy [1994] 1 NZLR 257 (a conspiracy case) and Professor Glanville Williams’ intemperate though entertaining article The Lords and Impossible Attempts (1986) 45 Cambridge LJ 33 at 55‑56.
(b)Crimes Act s 7(3)(a)
Section 7(1) of the Crimes Act provides that a person who “attempts to commit any offence against a law of the Commonwealth” is guilty of an offence and punishable “as if the attempted offence had been committed”. Sub‑section (3)(a) provides that a person may be found guilty “even if … committing the attempted offence is impossible”. Section 29B speaks of “endeavours” rather than “attempts”, and it may be that s 7 does apply to s 29B. Section 7(3)(a) was not expressly mentioned in argument, though in the course of discussing a similar provision in the New Zealand Crimes Act 1961 considered in Reg v Donnelly [1970] NZLR 980, counsel said there was a comparable provision in the Crimes Act. If s 7 is not attracted to s 29B, the common law of attempts will, in my view, apply by analogy to the endeavours limb of s 29B, and whatever the scope of the “impossibility” defence at common law, it extends to imaginary crimes. If s 7 does apply to the endeavours limb, I would not treat the words “attempted offence” in sub‑s (3)(a) as including an imaginary offence. The expression “attempts to commit any offence” in sub‑s (1) plainly contemplates an offence known to the law. Sub‑section (2) provides that for a person to be guilty, his conduct must be “more than merely preparatory to the commission of the offence”. Those words refer back to the “offence” in sub‑s (1) and thus also contemplate a known offence. Sub‑section (4) provides that a person who is found guilty of attempting to commit an offence cannot later be charged with the completed offence. Since the completed offence must be one known to the law, so must the offence the accused has attempted to commit. Sub‑section (5) provides that any defences applicable to an offence apply to the offence of attempting to commit that offence. The words “that offence” make clear that the attempt is to do something which amounts to a crime. In the context provided by these surrounding provisions, it is clear that sub‑s (3)(a) refers to an attempt to do something which is an offence known to the law.
Section 901 of the Pennsylvania Crimes Code, which was considered by the Supreme Court of Pennsylvania in The Commonwealth of Pennsylvania v Henley (1984) 474 A 2d 1115, is similar in form to s 7(3)(a). Section 901 provided in part that “it shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted”. The section was held to abrogate the defences of “factual and legal impossibility to attempt crimes”, but not to apply to cases where there is an intent to commit an act which is not a crime even though the actor believes it is a crime. Papadakos J, with whom the other six members of the Court agreed, instanced the case of a fisherman who believes he is committing an offence in fishing on a certain lake without a licence when a licence is in fact not required, and said that “Since the conduct here would be perfectly legal, the actor could not be held accountable for any attempted crime”. This is a reference to the concluding words of s 901 – “the crime attempted”. The section did not apply because what was attempted did not amount to a crime. Nix CJ, who agreed with the judgment of Papadakos J, added:
The effect of section 901(b) … is to allow prosecution for an attempt, without regard to the impossibility of achieving the intended result, where the conduct would constitute the crime, if the attendant circumstances were as the actor believed them to be. However, as the majority points out, we must be careful to distinguish situations where the intended conduct is not a crime. The mere fact that one thinks his conduct is criminal, but it is in fact lawful conduct, does not provide a basis for attaching criminal liability. The actor’s willingness to perform an act which society has not deemed criminal does not reflect the dangerous disposition that would warrant a criminal sanction.
In a footnote to his judgment the Chief Justice said that the Court should not “generalize proclivities beyond the proclivity to commit a specific recognized crime”. To do otherwise “would allow the law of attempt to manufacture crimes not previously defined by the legislature”. I see no material difference between the words in s 7(3)(a) – “even if … committing the attempted offence is impossible” – and those in s 901 – “it would have been impossible for the accused to commit the crime attempted”.
In United States of America v Dynar (1997) 115 CCC (3d) 481 the Supreme Court of Canada considered s 24(1) of the Canadian Criminal Code which provided that
Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Lamer CJC, La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ held that s 24 did not apply to an “imaginary crime”. At 505 they instanced the case of a person bringing sugar into Canada in the mistaken belief that the importation of sugar is a crime. Their Lordships said that this conduct was not within s 24(1) because the would‑be smuggler has no mens rea known to the law, and it is an element of the offence of attempt that the accused have “an intent to commit an offence”. The significance of this case for present purposes is admittedly reduced by the Court’s reliance on these words, which do not appear in s 7(3)(a). A provision in almost identical form to s 24(1) was considered in Donnelly, where reliance was placed by Turner J on the same phrase, and by North P on the words “in the circumstances”.
Although in my view the context provided by s 7 as a whole makes the position clear enough, if it were necessary to do so I would rely on the more general considerations mentioned by Nix CJ in Henley to reach the same conclusion. An unclear provision, if s 7(3)(a) is unclear, should not be read as creating a crime not previously defined by the legislature. The mere fact that a person thinks his conduct is criminal, when it is not, should not provide a basis for attaching criminal liability.
(c)Conclusion on endeavouring to impose
For the reasons I have given, I accept the submission for the applicants that at common law it is a defence to a charge of attempting to commit an offence that the so‑called offence is not known to the law, or, to put the matter another way, that it is not an offence known to the common law to attempt to commit an “imaginary crime”, namely that which the accused believes to be a crime but which is not. I also accept that s 7(3)(a) of the Crimes Act, if it applies to s 29B, does not alter the common law in that respect. The question is whether these propositions lead to the conclusion that on the agreed facts the applicants have not committed the offence of endeavouring to impose upon AFMA within s 29B of the Crimes Act. I do not think they do. On the agreed facts the first three applicants made representations that were untrue to their knowledge. They made the representations with the purpose or object of obtaining an advantage or benefit. The fourth applicant was knowingly concerned in the making of the untrue representations by the other applicants. It follows from what I have said in connection with the substantive offence of “imposing” that it is not true to say that the crime the applicants are charged with endeavouring to commit (namely imposing on AFMA) does not exist. It is not an imaginary crime.
On the agreed facts it would appear that the applicants have successfully imposed on AFMA rather than endeavoured to impose on it. But if s 7 applies to s 29B, that will not preclude convictions for endeavouring, because s 7(3)(b) provides that a person may be found guilty of an attempt to commit an offence even though he has actually committed the attempted offence. If s 7 does not apply to s 29B, the position is the same, because the common law of attempt will apply by analogy, attracted by the word “endeavour”. When crimes were either felonies or misdemeanours, the doctrine of merger prevented a conviction for an attempt to commit a felony where the accused had in fact committed the felony. The attempt was a misdemeanour which merged in the felony and lost its separate existence. The doctrine of merger did not apply where the two offences were of the same degree, either both felonies or both misdemeanours, and accordingly a conviction for an attempt to commit a misdemeanour could be obtained even though the accused had committed the misdemeanour: Webley v Buxton [1977] QB 481; Howard’s Criminal Law 5th ed (1990) 415. The distinction between felony and misdemeanour has no place in the Crimes Act, and in any event, imposing and endeavouring to impose are offences of the same degree. I need say no more because the applicants did not contend that the endeavouring charges were defective because on the agreed facts the imposing charges were made out.
CONCLUSION
The applications must be dismissed.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg
Associate:
Dated: 27 August 1998
Counsel for the Applicants: P R Hayes QC and G J C Silbert Solicitors for the Applicants: McMahon Fearnley Counsel for the Second Respondent: L Lieder QC Solicitor for the Second Respondent: Director of Public Prosecutions (Cth) Date of Hearing: 18 August 1998
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