Jamieson v McKENNA - [2002] WASCA 325

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: JAMIESON -v- McKENNA [2002] WASCA 325

CORAM: ANDERSON J
TEMPLEMAN J
SHEPPARD AUJ

HEARD: 15 OCTOBER 2002

DELIVERED : 5 DECEMBER 2002

FILE NO/S: SJA 1028 of 2002

BETWEEN: GREGORY KEITH JAMIESON
Appellant
AND
JOHN MATTHEW McKENNA
Respondent

Catchwords:

Criminal law - Stealing - Honest claim of right - Elements of defence - Actual subjective belief sufficient

Justices - De facto officer doctrine - Stipendiary magistrate continuing past compulsory retirement age - Validity of acts

Legislation:

Criminal Code, s 22

Justices Act 1902, s 186(1)(a)(ii)

Stipendiary Magistrates Act 1957, s 5B

Result:

Appeal allowed
Conviction set aside
Re-trial ordered

Category: A

Representation:

Counsel:

Appellant:     Mr M R Hall
Respondent:     Ms C J Thatcher
Intervener:     Mr R J Meadows QC & Ms C J Thatcher

Solicitors:

Appellant:     Mark Andrews & Associates
Respondent:     State Crown Solicitor
Intervener:     State Crown Solicitor

Case(s) referred to in judgment(s):

GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61
Mathews v The Queen (2001) 24 WAR 438

Case(s) also cited:

Adams v Adams [1970] 3 WLR 934
Baldock v The Queen, unreported; SCt of WA; Library No 930232; 30 April 1993
Hughes v Hughes (1971) 2 SASR 368
In re Aldridge (1893) 15 NZLR 361
Kaighin v The Queen (1990) 1 WAR 390
Molina v Zaknich [2001] WASCA 337
R v Cawthorne, Ex Parte Public Service Association of South Australia Inc (1977) 17 SASR 321

ANDERSON J: On 22 November 2001, the respondent, a police sergeant, made two complaints before a Justice of the Peace at Perth charging the appellant, a senior constable, with two offences of theft. In the first complaint, it was averred that between 18 and 24 January 2000, the appellant stole $282.12, and in the second complaint, it was averred that between 31 January and 1 February 2000, the appellant stole $408.45. In each case, the money was said to be the property of Colin Ernest Kerr and others, known as the Safer WA Rockingham Committee. The charges were heard in the Court of Petty Sessions at Rockingham.
There was evidence that the Safer WA Rockingham Committee is an initiative of the Western Australian Police Service and community groups concerned with community policing. It is an unincorporated body on which there is community and police representation, mostly voluntary. Committee members usually include Rockingham police officers who are attached to the community policing division in that district. The Committee operated three bank accounts including an account at the National Australia Bank at Rockingham styled "Community Policing Committee Rockingham". At the material time, the appellant was the officer‑in‑charge of community policing at Rockingham and in that capacity he was a member of the Committee and custodian of the Committee's financial books, including its cheque books. On 18 January 2000, the appellant obtained the signature of Ms Lannu and Mr Kerr to a cheque form numbered 270 drawn on the above account. Both Ms Lannu and Mr Kerr were authorised cheque signatories. It is not clear to what extent the cheque was filled out when Ms Lannu and Mr Kerr signed it but when presented for payment, it was for $282.12 payable to "G Jamieson", that is, the appellant. The evidence does not reveal who filled out the cheque in that manner.
On about 31 January 2000 the appellant obtained the signatures of Ms Varis and Ms Lannu to a cheque form numbered 275. Ms Varis was also authorised to sign cheques on the Committee's bank accounts. This cheque was drawn on the same account. Once again, it is not clear to what extent the cheque was filled out when it was signed or who filled it out but when it was presented for payment it was for $408.45 payable to "G.K. Jamieson", the appellant.
It was not in dispute that the appellant paid both of the cheques into his own bank account and created records within the financial documents of the Committee with respect to the cheques. He openly recorded that cheque 270 for $282.12 was to reimburse himself for the cost of insuring his private motor vehicle for 12 months from 21 October 1999. He designated the payment "Reimbursement of vehicle expenses". He openly recorded that cheque 275 for $408.45 was to pay the licence and third party insurance fees payable for that vehicle for the 12 months from 1 March 2000. He placed a copy of the account for the licence and third party insurance on the Committee's file with an indorsement on it: "Reimburse Senior Constable Jamieson for vehicle expenses".
Evidence was led from Committee members that the appellant was not authorised to use Committee money to reimburse himself for these two items of personal expenditure. The appellant's case was that he was so authorised and, if he was not in fact so authorised, he took the proceeds of the cheques pursuant to an honest claim of right to the money.
The appellant was convicted of both stealing offences. The finding against him was that he was not authorised "… to use funds in the fashion that he has" [AB 93C]. There is no appeal against that finding. However, by his first ground of appeal the appellant complains that the Magistrate misdirected herself with respect to his defence of honest claim of right. It is pleaded in ground 1 of the grounds of appeal that:
"(a)The learned Magistrate erred in law in proceeding to conviction having regard to the fact she found the applicant had an honest claim of right in his own mind.
PARTICULARS
(i)The learned Magistrate found the applicant had the state of mind required by s 22 of the Criminal Code.
(ii)Having made such a finding, the learned Magistrate was implicitly stating the prosecution had not established its case to the required standard, or, in the alternative, that the defence under s 22 of the Criminal Code had not been negated beyond reasonable doubt.
(iii)As such, the convictions are unsafe and unsatisfactory."
It should be noted that this ground of appeal is formulated and was argued on the assumption that the magistrate, Mrs Barbara Bennett‑Borlase, was holding office lawfully at the material time. This is a matter which is challenged by the second ground of appeal. It will be convenient to put that challenge to one side for the moment in order to deal with this (the first) ground of appeal and I will refer to Mrs Bennett‑Borlase in this part of the judgment as if she was holding office lawfully.
The defence of honest claim of right is made available by s 22 of the Criminal Code which is in the following terms:
"22.Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud." [my emphasis].
The issue of honest claim of right arose from the appellant's evidence to the effect that he believed, from the general course of discussions which he had had with members of the Committee concerning the reimbursement of personal expenditure incurred by members of the Committee that he was to be reimbursed by the Committee for the reasonable costs of using his private motor vehicle on Committee activities. His case was that the costs in question - the amount of the annual comprehensive insurance premium and of the annual licence fee in respect of his vehicle - represented a reasonable claim of reimbursement. The appellant said in evidence:
"Well, it was my belief that I had a legitimate right to that money, having spoken to people about it, and that I was actually using my vehicle for that purpose and enhancing the profile of 'Safer WA', its business and core function."
The question for the magistrate was whether she was satisfied, beyond a reasonable doubt, that the appellant did not have that belief as a matter of "actual subjective state of [his] mind": Mathews v The Queen (2001) 24 WAR 438 per Burchett AUJ at 445. She could not convict the appellant unless she was so satisfied. The convictions in this case cannot stand unless it appears that the magistrate appreciated that this was the question and unequivocally answered it against the appellant. What the magistrate said was:
"So he [the appellant] was fully aware that, in relation to money, he had to be ultra careful. He had been authorised for $1,000.00, in one of the minutes, in relation to the expedient and business‑like use in relation to the running of the office but I cannot accept that that business and expeditious use extended to him paying his fees in relation to this private vehicle, this honest claim of right.
It may have been honest in his own mind but I do not believe that it is an honest claim of right in relation to the totality of these matters before these Courts."
The statements in this passage that "it may have been honest in his own mind" and "I do not believe that it is an honest claim of right" are prima facie contradictory and make it impossible to divine what the finding was on the critical issue as to the appellant's subjective state of mind. On the other hand, perhaps the statements reflect a misconception that something more than a subjective state of honest belief is required in order to invoke the exculpatory provisions of s 22. In either case, the convictions cannot stand. I would uphold the first ground of appeal.
By his second ground of appeal, the appellant pleads that in any event Mrs Bennett‑Borlase had "no jurisdiction or power to hear and determine the complaints". The facts which give rise to this ground of appeal are that when Mrs Bennett‑Borlase applied for appointment to the office of stipendiary magistrate in 1987 she understated her age by 7 years with the result that, although she reached the statutory retiring age of 65 years on 14 November 1998, she was allowed to continue in office. She continued to act as a stipendiary magistrate holding duly appointed sittings of the Court of Petty Sessions and she was received and treated by the officers of the Court, parties to proceedings before her and others (including members of the public) as a stipendiary magistrate. That was the state of affairs when Mrs Bennett‑Borlase heard the complaints against the appellant and made an order convicting him. It is clear that when she performed these functions she had ceased to be qualified to hold the office which she purported to hold and it is conceded by the Solicitor‑General who appeared for the Attorney‑General as intervener that her continuation in office as a stipendiary magistrate was defective or irregular. However, the Solicitor‑General submitted that this was a clear case for the application of the de facto officer doctrine and I would accept that submission. No relevant person knew that Ms Bennett‑Borlase had attained the statutory retiring age and was no longer qualified to hold office. She acted as, and was treated as, and had a public reputation as, a magistrate and the general rule is that the acts of a de facto public officer done in apparent execution of his or her office cannot be challenged on the ground that he or she has no title to that office: GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 per Kirby P and Hope JA at 519 and McHugh JA at 525.
The three conditions which have been identified as essential for the operation of the doctrine were all present in this case. The office occupied and exercised by Mrs Bennett‑Borlase was an office de jure, that is, one which existed in law. The acts of Mrs Bennett‑Borlase in hearing the complaints and convicting the appellant were within the scope of the authority of the office of stipendiary magistrate. Mrs Bennett‑Borlase had a colourable title to the office, having lawfully occupied it for many years and having continued to occupy it without any challenge after the expiration of her entitlement to do so.
The doctrine is a strong one, its purpose being not to protect the de facto officeholder, but to protect the public interest. As Aronson and Dyer say in "Judicial Review of Administrative Action" (2nd ed 2000) at footnote 80 on page 268 the doctrine "is driven by the fear of the sheer chaos which could flow from the ruling that everything done by an official is invalid". See also Professor Enid Campbell's article "De Facto Officers" in (1994) 2 Australian Journal of Administrative Law 5. Professor Campbell points out at page 6 ‑ 7 that the doctrine protects the public from the "chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the official's titles". See also MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61 per Kennedy J at [15] ‑ [25]. Wallwork J at [78] ‑ [87] and Murray J at [149].
On behalf of the appellant it was contended that the doctrine did not apply in this case because Mrs Bennett‑Borlase knew that the date of birth stated in her application for appointment was incorrect and knew that she was beyond the retiring age when she presided in this case. This submission comes down to a submission that one of the conditions for the operation of the doctrine is that the official in question must hold a bona fide belief that his or her appointment is good de jure at the material time. Not only was no authority cited to us in support of that proposition but it is a proposition which runs counter to the rationale for the principle which is protection of members of the public who deal with or who are affected by the official acts of de facto officers reasonably assuming the validity of the official's appointment. The doctrine would afford little protection to those who it is intended to protect if its application depended on the subjective state of mind of the de facto officer.
It was further submitted that the doctrine did not apply in circumstances in which the officer concerned had obtained appointment by "fraud", the fraud alleged in this case being the deliberate misstating by Mrs Bennett‑Borlase of her age at the time of her application for appointment. Once again, no authority was cited to support this submission, which also runs counter to the principles which underpin the doctrine. I would reject the submission on that ground but anyway there is no finding of fraud against Mrs Bennett‑Borlase and this Court should not have been invited to make such a finding. Mrs Bennett‑Borlase is not a party to this appeal.
It was submitted by counsel for the appellant that the case cannot be distinguished from GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (supra) in which there was strong obiter dictum by the majority of the New South Wales Court of Appeal to the effect that the de facto officer doctrine cannot apply if its application would negative "clear legislative provisions" (per Kirby P and Hope JA at 517). In that case the majority considered that the doctrine could not apply to save an industrial award made by a single Judge of the Industrial Relations Commission when the legislation required that awards be made by the Commission constituted by a Judge and two assessors, that is, where there was "the complete failure of the tribunal to meet as such and to be constituted as Parliament provided" (loc cit).
The "clear legislative provisions" in the case presently under consideration are said to be s 186(1)(a)(ii) of the Justices Act 1902 and s 5B of the Stipendiary Magistrates Act 1957.
Section 186(1)(a)(ii) of the Justices Act provides:
"An application for leave to appeal may only be made on a ground or grounds coming within the following:
(a)that the justices -
(i)…
(ii)acted without or in excess of jurisdiction."
In my opinion, this section does not preclude the application of the de facto officer rule where a justice continues in office after the statutory retiring age. The section is not concerned with such a situation but on the contrary concerns the right to appeal from a decision of a justice lawfully in office on the ground that the justice has exceeded his or her jurisdiction. The section does not purport to confer a right of appeal from the decision of a de facto justice on the ground that the de facto justice lacked jurisdiction because he or she was not lawfully entitled to hold office. This is apparent from a plain reading of the section. The reference to "justices" in par (a) of subs 1 can only be understood as a reference to justices de jure.
Section 5B of the Stipendiary Magistrates Act is the compulsory retirement section and subs (1) provides that "[a] stipendiary magistrate shall retire from office on the day on which he attains the age of 65 years…" There are some qualifications and exceptions to that requirement but none are presently relevant. It was submitted on behalf of the appellant that, on the authority of the majority obiter in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal this section precludes the operation of the de facto officer doctrine in the case of a magistrate who fails to retire as required by the section. I do not see any similarity between the case which we are considering and the case of GJ Coles & Co Ltd v Retail Trade Industrial Tribunal.
In my opinion, there is an obvious distinction between the acts of an official who, unknown to the public, has ceased by effluxion of time to be qualified for office and the acts of a statutory tribunal which is manifestly improperly constituted. Cases in the second category, such as the GJ Coles & Co Ltd case, may be outside the operation of the de facto officer doctrine because the essential condition of "colour of authority" to exercise the office is missing. When a statute confers authority on a tribunal constituted by three officials there can hardly be colour of authority in a tribunal manifestly not so constituted. No person seeking to invoke the exercise through the tribunal of its statutory powers could reasonably assume that a single official was a properly constituted tribunal when the legislation expressly provided that the tribunal be comprised of three officials. The circumstances would themselves reveal the invalidity. In my opinion, the reliance on GJ Coles & Co Ltd v Retail Trade Industrial Tribunal is misplaced.
I can see nothing in s 5B of the Stipendiary Magistrates Act which is inimical to the de facto officer doctrine. A statutory requirement that a stipendiary magistrate retire from office at a certain age does not carry the meaning that regardless of established common law doctrines acts done in continued exercise of the office are a nullity.

Whilst I would uphold the first ground of appeal I would reject the second ground of appeal.
I would order that the appellant's convictions be set aside and that the matters be remitted to the Court of Petty Sessions at Rockingham for retrial.
TEMPLEMAN J: I have had the advantage of reading in draft, the reasons published by Anderson J.
I agree, for the reasons given by his Honour that the appeal should succeed on the first ground, but that the second ground should be rejected.
SHEPPARD AUJ: I have had the advantage of reading the reasons for judgment of Anderson J. I am in agreement with them and have nothing further to add.