Janssen v McShane

[1992] TASSC 99

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Janssen v McShane [1992] TASSC 99; B21/1992

PARTIES:JANSSEN, Kevin Bernard (AKA COCHRANE, John David)

v
  McSHANE, Adrian Michael

FILE NO/S:  LCA2/1992
DELIVERED ON:  9 June 1992
JUDGMENT OF:  Zeeman J

Judgment Number:  B21/1992
Number of paragraphs:  9

Serial No B21/1992

List "B"

File No LCA2/1992

KEVIN BERNARD JANSSEN (ALSO KNOWN AS JOHN DAVID COCHRANE) v ADRIAN MICHAEL McSHANE

REASONS FOR JUDGMENT  ZEEMAN J

9 June 1992

Justices – Jurisdiction and Procedure generally – Procedure – Amendment of complaint on appeal – Extent of the jurisdiction where the complaint charges a Commonwealth offence.

1. By Notice to Review dated 25 January 1992 the applicant sought to review a sentence of imprisonment imposed upon him by a magistrate constituting a Court of Petty Sessions at Launceston on 14 January 1992. That sentence was imposed upon pleas of guilty by the applicant to each of six charges of knowingly obtaining payment of an instalment of unemployment benefit by means of a fraudulent device contrary to the Social Security Act 1991, s1348.

1. It is apparent that the Notice to Review was drawn by the applicant without the assistance of legal advice. The ground originally therein expressed appears to have been to the effect that the sentence imposed was manifestly excessive. Upon the matter coming before me the applicant was represented by counsel, who applied to amend the Notice to Review by substituting new grounds. I permitted the amendment to be made. Those grounds were that the sentence was manifestly excessive, that the learned magistrate failed to comply with the provisions of the Crimes Act 1914 ("the Act"), s17A, and that the learned magistrate failed to give adequate consideration to certain of the matters referred to in the Act, s6A(2). In imposing a sentence of imprisonment, the learned magistrate gave no apparent consideration to the matters which the Act, s7A(1), required him to consider, failed to state the reasons required to be stated by the Act, s7A(2)(a), and failed to make a recognizance release order as required by the Act, s19AC. However, in the circumstances of this case it became unnecessary for me to consider the grounds upon which the sentence was sought to be reviewed and in particular it became unnecessary to consider what consequences, if any, flowed from the learned magistrate‘s undoubted failure to comply with various provisions of the Act. The Act, ss.17A(3) and 19AH(1)(a), provide that the failure to comply with relevant provisions "does not affect the validity of any sentence". The view was expressed by Crawford J in Clayton v Mulcahy No 19/1990, at 6, that "[t]he purpose of subsection (3) [his Honour was speaking of s.17A(3)] is to ensure that non–compliance with subsections (1) and (2) does not render the sentence invalid, that is void ab initio, but its effect is not to protect a sentence passed in circumstances contravening the provisions against a successful appeal or review by a higher court". A contrary view, albeit by way of obiter dictum, was expressed by the Full Court of the Federal Court in Omar v Lanham (Unreported, 26 November 1985). In that case, at p11, the Court said that "given the merely directory character of s17A(1), it would be wrong to override s17A(3) by the back door by allowing an appellate challenge on the ground, additional to the traditional grounds, that the dictates of s17A(1) were not observed."

1. I drew the attention of counsel to the fact that two of the offences to which the applicant had pleaded guilty had been committed on dates in June 1991 whereas the statute creating the relevant offence, the Social Security Act 1991, commenced on 1 July 1991. I observe that the Social Security Act 1947, which was replaced by the Social Security Act 1991 created, by s239(1)(c), an offence similar to the offence created by s1348, but being an offence not having precisely the same ingredients. I then granted a further application to amend the Notice to Review, which application was not opposed. By the Notice to Review in its further amended form, the applicant also sought to quash the convictions in relation to the breaches of s1348 of the Social Security Act 1991 alleged to have been committed on 10 June 1991 and 24 June 1991 on the ground that the learned magistrate was devoid of jurisdiction to convict the applicant of those offences as the relevant Act had not commenced at the time of the alleged commission of those offences.

1. Counsel for the respondent then conceded that the convictions for the offences allegedly committed prior to the commencement of the Social Security Act 1991, charged by paras.1 and 2 of the complaint, could not stand and that consequently the sentence could not stand, one sentence having been imposed for all offences as authorised by the Social Security Act 1991, s1353(1). Accordingly, I upheld the appeal, quashed the convictions on the first two counts contained in the complaint and quashed the sentence.

1. The parties agreed that the complaint should not be remitted to a magistrate but that I should finally deal with the complaint as authorized by the Justices Act 1959, s110(2)(i). Counsel for the respondent then applied to amend the complaint by substituting two new paragraphs for the two paragraphs charging the offences in respect of which the convictions were quashed. Each proposed new paragraph seeks to allege a breach of s239(1)(b) of the Social Security Act 1947 constituted by the applicant knowingly obtaining payment of an instalment of unemployment benefit which was not payable. Such an amendment is not authorised by the Act, s4K(3), because the result of the amendment, if made, would be to charge two breaches of s239(1)(b) of the Social Security Act 1947 and four breaches of s1348 of the Social Security Act 1991 in the one complaint so that it could not then be said that all offences charged are "against the same provision of a law of the Commonwealth". The jurisdiction exercised by the learned magistrate, and by this Court on review, is conferred by the Judiciary Act 1903, s68(2), and the laws of the State relating to procedure apply to the present proceedings by virtue of s79. It follows that the procedural provisions of the Justices Act 1959 govern the present proceedings, save and except where it is otherwise provided by the Constitution or by a law of the Commonwealth. If it could be said that a provision of the Justices Act operates so as to prevent the joinder of charges in circumstances permitted by the Act, s4K(3), then that latter provision prevails, permitting the relevant joinder notwithstanding the provisions of the Justices Act. However, s4K(3) is not to be taken as providing for the only circumstances in which more than one charge of an offence against a law of the Commonwealth may be joined in one complaint. That provision is no more than permissive, leaving unaffected any provision in the Justices Act permitting more than one charge to be joined in the one complaint in circumstances not the subject of s4K(3). Whilst the making of the amendment would result in a joinder of the charges not authorized by s4K(3), it would result in a joinder authorized by the Justices Act 1959, s29(1)(b)(ii), in that the material before me establishes that all offences which would then be charged constitute a series of offences of similar character.

1. There are a number of dicta appearing in the judgments of the members of the Full Court in Canning v Taylor [1967] TasSR 42 which suggest an absence of a power to make the amendment sought. However, that case was concerned with a consideration of the power of amendment conferred on the court by the Justices Act, s110(2)(f). Since that case was decided, the Justices Act has been relevantly amended by the Justices Amendment Act 1986. Section 26 of the amending Act added to s110(2) the following paragraph:

"(i)      exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made."

1. The effect of s110(2)(i) is that I have a much wider power of amendment than that which was possessed by the Court at the time that Canning v Taylor (supra) was decided. In particular, I have all the powers and am subject to all the duties conferred and imposed by the Justices Act, s31. In the terms of s31(2)(a) I am satisfied that each of the first two counts in the complaint as it stands fail to disclose an offence. It is therefore my duty to dismiss those matters of complaint unless I amend the complaint. Counsel for the applicant has not put to me any matters going to the exercise of my discretion to permit the amendment to be made. Counsel for the respondent submits that the reformulated charges, in essence, rely upon the same conduct as that which is the subject of the first two counts in the complaint as it stands. It does not appear as though the applicant would suffer any prejudice if the amendment is made. The charges sought to be laid by the proposed amendment could be laid by fresh complaint as there is no time limit which applies (the Act, s15B(1)(a)), the three year limitation period formerly provided for by the Social Security Act 1947 having been removed by the Social Security Amendment Act 1987.

1. In all the circumstances I am persuaded that the amendment sought ought to be made. Accordingly, I order that the complaint be amended by deleting the first two paragraphs contained therein and substituting the following:

"CHARGE: Knowingly obtain payment of an instalment of benefit not payable

BREACH OF: Social Security Act 1947 Section 239(1)(b)

PARTICULARS: THAT KEVIN BERNARD JANSSEN on or about 10.6.91 at Launceston in Tasmanian did knowingly obtain payment of an instalment of Unemployment Benefit in the sum of $138.85 which was not payable in that he was also receiving Unemployment Benefits in the name of John David Cochrane.

AND FURTHER 2:

CHARGE: Knowingly obtain payment of an instalment of benefit not payable

BREACH OF: Social Security Act 1947 Section 239(1)(b)

PARTICULARS: THAT KEVIN BERNARD JANSSEN on or about 24.6.91 at Launceston in Tasmania did knowingly obtain payment of an instalment of Unemployment Benefit in the sum of $277.70 which was not payable in that he was also receiving Unemployment Benefits in the name of John David Cochrane."

1. I will hear the parties further as to the final disposition of the complaint.