Lang Lien & Montpellier Pty Ltd v WorkCover Corporation - [2005] SASC 137

Supreme Court of South Australia
(Magistrates Appeals: Civil)
LANG LIEN & MONTPELLIER PTY LTD v WORKCOVER CORPORATION
Judgment of The Honourable Chief Justice Doyle (ex tempore)
5 April 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
The first appellant appealed against (a) a conviction recorded in the Magistrates Court after a plea of guilty to a complaint under the Workers Compensation and Rehabilitation Act 1986 (SA) and (b) the sentence imposed by the Magistrate - issues on appeal - the possibility of an arguable defence in light of discussion of principles of criminal liability for aiding and abetting - mistaken legal advice as to the elements of the offence - circumstances when a miscarriage of justice results - appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
The second appellant appealed against the sentence imposed by the Magistrate on the ground that it was manifestly excessive in all of the circumstances - appeal dismissed.
Workers Compensation and Rehabilitation Act 1986 (SA) s 69(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Meissner v The Queen (1995) 184 CLR 132; The Queen v Murphy [1965] VR 187, applied.
Green v Police (1999) 108 A Crim R 246; Block v Police (1994) 177 LSJS 103; Giorgianni v The Queen (1985) 156 CLR 473, considered.

LANG LIEN & MONTPELLIER PTY LTD v WORKCOVER CORPORATION
[2005] SASC 137
Magistrates Appeal: Civil

DOYLE CJ (ex tempore): The appellants in this matter are Montpellier Pty Ltd, to which I will refer as Montpellier, and Ms Lang Lien, to whom I will refer as Ms Lang.
Montpellier pleaded guilty to 10 counts of failing to furnish to WorkCover Corporation a monthly return of remuneration paid to workers, contrary to s 69(1) of the Workers Rehabilitation and Compensation Act1986 (SA), to which I will refer as “the Act”.
Ms Lang was at the relevant time the sole director of Montpellier. She pleaded guilty to 10 counts charging her with the same offence as an aider and abetter. That is, she was charged on the basis that she aided, abetted, counselled or procured each of the offences by Montpellier.
On 28 January 2005 the Magistrate heard submissions from the prosecutor and for the defendants. He exercised the power under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single penalty of $5000 on each of Montpellier and Ms Lang, amounting to a fine of $10000 in all.
The time within which to appeal expired on Friday, 11 February 2005. Each appellant appealed against the fine, claiming that it was excessive, by notice of appeal filed on 11 February 2005. On 1 April 2005 each appellant filed a further amended notice of appeal. Ms Lang by her amended notice sought to appeal against her conviction as well as against the penalty. She and the company also now claimed that the Magistrate erred in the exercise of his powers under s 18A of the Criminal Law (Sentencing) Act.
The relevant facts are quite brief. Montpellier conducted or operated a wine bar and a restaurant. By law it was obliged to file a return each month with WorkCover Corporation. The return had to state the remuneration paid to workers and had to be accompanied by the levy payable on that remuneration. Montpellier failed to do so for 10 months. It is apparent from the affidavit material before me that the pleas of guilty by Montpellier and Ms Lang were entered on the basis that Ms Lang, the sole director, had instructed her accountant to file the appropriate returns and to arrange for payment of the levy by direct debit. Apparently the accountant overlooked doing so. There was no suggestion before the Magistrate that the default was deliberate, either by Montpellier or by the accountant. The offence under s 69 of the Act lies in the failure to make the return, and the oversight did not provide Montpellier with a defence.
The Magistrate appears to have sentenced on the basis outlined by me. The maximum penalty on each count was a fine of $50,000, so each appellant faced a maximum fine of $500,000 in all. The Magistrate imposed a single fine of $5000 on each appellant.
I turn first to the appeal by Montpellier. It was open to the Magistrate to exercise the power conferred by s 18A. The endorsements on the complaints make it clear that he fined each appellant separately $5000 and did not impose a fine amounting to $5000, to be divided between the two appellants. It was open to the Magistrate to proceed in this way. There is no reason to think that the fine is manifestly excessive, even allowing for the plea of guilty, the circumstances of the offence and the fact that no previous convictions were alleged. Parliament has made it clear that the obligation to file a return is a significant one by fixing a maximum fine of $50,000. Montpellier, through its director, had an obligation to ensure that the return was filed. Montpellier’s reliance on its accountant makes its offence less serious than it otherwise would be, but it remains the fact that it did fail over a 10 month period to file the necessary return. As an employer Montpellier had a duty affirmatively to check that its instructions were being implemented. The process of registering with WorkCover and filing monthly returns is a basic aspect of setting up business. In this respect Montpellier disregarded its obligations even though its failure is to some extent understandable.
I consider that the sentence imposed on Montpellier is within the appropriate range for these offences. It amounts to one-tenth of the maximum punishment for a single offence. That of course is not decisive. I make that point simply to illustrate that the Magistrate has not in any sense gone to the top of the range.
I dismiss Montpellier’s appeal against the sentence.
I turn to the appeal by Ms Lang. The court can entertain and allow an appeal against a conviction entered on a plea of guilty to an offence charged in the Magistrates Court. There are a number of decisions by judges of this Court so holding, and I should follow those decisions.
The circumstances in which the court will entertain an appeal against a conviction entered on a plea of guilty are limited, for obvious reasons. The circumstances were conveniently summarised by Dawson J in Meissner v The Queen (1995) 184 CLR 132 at 157 where Dawson J said:
“It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud .” (footnotes omitted)
I refer also to the decisions in Green v Police (1999) 108 A Crim R 246 at 249 Bleby J, and Block v Police (1994) 177 LSJS 103 at 106 Olsson J. It may be that Olsson J states the position a little more broadly than is supported by the case law. I indicate that, with respect to Olsson J, I prefer the formulation of Dawson J in Meissner v The Queen.
I refer also, as supporting the more precise formulation by Dawson J, to the decision of the Full Court of the Supreme Court of Victoria in The Queen v Murphy [1965] VR 187 in particular to the reasons of Herring CJ and Adam J at 187-188 and to the reasons of Sholl J at 190-191.
I accept the substance of what is contained in the affidavits filed in support of the appeal by Ms Lang. That is, that Ms Lang instructed her solicitor that she had asked her accountant to attend to the filing of the returns but that the accountant had overlooked doing so. This is confirmed and supported by an affidavit from the solicitor and from the accountant, who admits receiving the instruction and admits his oversight. The affidavits also establish that Ms Lang’s solicitor advised her that she should plead guilty, and that she did so. That advice was given to her on the express basis that she had no possible or available defence to the charge. The submissions to the Magistrate by the prosecutor proceeded on the same basis. The prosecutor put to the Magistrate that Ms Lang had asked her accountant to register the business with WorkCover and that the accountant had overlooked doing so.
The decision of the High Court in Giorgianni v The Queen (1985) 156 CLR 473 supports the view that Ms Lang was guilty of aiding and abetting the offences by Montpellier only if she knew that Montpellier was not filing the required returns. It is not necessary for me to decide the point. It suffices for me to say that it is arguable that she is guilty only if knowledge in this sense is established. Ms Lang denies having that knowledge.
Those circumstances do not necessarily bring her within the usual grounds for establishing a miscarriage of justice. Ms Lang knew the nature of the charge, and she intended to admit guilt. Upon the facts admitted, namely that she had instructed her accountant to file the returns, believed he would do so, and that he had overlooked doing so, she could have been guilty as charged. She could have been guilty as charged because she might have become aware that the returns were not being filed. Alternatively she might have paid so little regard to the matter as to lead to a finding that she disregarded Montpellier’s obligation. That might - and I emphasise might - provide a basis for a finding of guilt. Nor is there any suggestion here of any inappropriate pressure or misrepresentation inducing the plea of guilty.
The advice to Ms Lang was inadequate because it did not raise the possibility of a plea of not guilty on the basis of a belief by her at all relevant times that the returns were being filed. As I mentioned, the affidavit from her solicitor states that he told her that she was liable on the basis of absolute liability.
In this respect the case might be said to be a borderline one. It is clear that the Court will not allow an appeal against a conviction entered on a plea of guilty because a possible defence was not adequately considered or because, on reflection, the appellant considers that the decision to plead guilty was ill-advised or was not fully considered. But this case is clearer and stronger.
The plea of guilty was entered and accepted on the basis of facts that give rise to an arguable defence. The plea of guilty was also entered on the basis that no such defence was available to Ms Lang. There is no reason to doubt her statement that she acted on legal advice in that respect. This is a case of mistaken legal advice as to the availability of a possible substantive defence. It is not merely a case of second or better thoughts about the wisdom of the course followed. In short, the plea of guilty was entered by Ms Lang on the basis of a misapprehension by her and by her solicitor as to the elements of the offence.
Having said that, it is necessary to bear in mind that a plea of guilty may be entered for all sorts of reasons, some of which may have little to do with the question of proof, as Dawson J points out. For example, a person charged might plead guilty to avoid the worry of a court case, or to avoid publicity. A plea of guilty is necessarily an admission of all elements of the offence. A conviction entered on the basis of such an admission will only be set aside if there is a miscarriage of justice.
In the present case, the plea was entered and accepted on the basis that Ms Lang had instructed her accountant to file the returns, and it was his oversight that meant that they were not filed. By implication the plea was entered and accepted on the basis that there was no dishonesty on the part of Ms Lang, merely a failure to ensure that the returns were being filed.
These are not circumstances in which it can be said that she could not be guilty as a matter of law, but they are circumstances in which she has an arguable defence to a charge of aiding and abetting, and that arguable defence was ignored or excluded by the advice given to her. It is not a case of merely second thoughts about the best course to follow.
I have come to the conclusion that the circumstances are sufficient to justify me allowing the appeal on the basis of a miscarriage of justice. The plea of guilty was entered on an erroneous basis and in the circumstances there is a real risk of a miscarriage of justice. Accordingly, having already extended to 1 April 2005 the time within which Ms Lang might appeal against her conviction, and her further amended notice of appeal against conviction having been filed within that time, I now allow the appeal against conviction, set aside the convictions recorded against Ms Lang and the penalty imposed on her, and remit the matter to the Magistrates Court for trial on the charges against Ms Lang.
In summary, the appeal by Montpellier against penalty is dismissed; the appeal by Ms Lang against her conviction and the penalties imposed consequent on the conviction is allowed, and the charges against Ms Lang are remitted to the Magistrates Court for trial.
I order that there be no order as to the costs of either appeal.