Lewkowski v Lilley - [2000] WASCA 14

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LEWKOWSKI & ORS -v- LILLEY [2000] WASCA 14

CORAM: KENNEDY J
PIDGEON J
MURRAY J

HEARD: 11 OCTOBER 1999

DELIVERED : 4 FEBRUARY 2000

FILE NO/S: SJA 1158 of 1998

BETWEEN: GREGORY LEWKOWSKI
WARREN LANCE LEWKOWSKI
FINELINE HOMES (WA) PTY LTD
Appellants
AND
NIGEL LILLEY
Respondent

Catchwords:

Builders' registration - Convictions of company and its directors for offences of entering into contracts for building work and for conducting the building work without registration - Proposition that contracts entered into and work done as the agent of a registered builder provides no defence - Defence under Criminal Code (WA) s 24 not available - Turns on own facts

Legislation:

Builders' Registration Act 1939 (WA) s 4(1)(A)

Criminal Code (WA) s 7, s 24

Result:

Appeal dismissed

Representation:

Counsel:

Appellants: Mr T R Stephenson
Respondent: Mr M R Hall & Ms E M Buttfield

Solicitors:

Appellants: Fordhams
Respondent: E M Buttfield

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

Borg v R [1972] WAR 194
Builders' Registration Board of WA v Roroka Pty Ltd, unreported; SCt of WA (Owen J); Library No 8776; 25 March 1991
Giorgianni v The Queen (1985) 156 CLR 473
He Kaw Teh v The Queen (1985) 157 CLR 523
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Brimblecombe v Duncan [1958] Qd R 8
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Coughlin v The Queen, unreported; CCA SCt of WA; Library No 3012; 9 September 1980
Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129
H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159
Klahn v Talbot (1995) 83 A Crim R 535
Maher v Musson (1934) 52 CLR 100
McKenzie v G J Coles & Co Ltd [1986] WAR 224
McPherson v Cairn [1977] WAR 28
Olsen v Grain Sorghum Marketing Board [1962] Qd R 580
Oset v Webb, unreported; FCt SCt of WA; Library No 8734; 28 February 1991
Pearce v Stanton (1984) WAR 359
Pereira v Director of Public Prosecutions (1989) 63 ALJR 1
R v Perera [1986] 1 Qd R 211
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Thomas v Schwager (1997) 98 A Crim R 486
Ward v The Queen, unreported; CCA SCt of WA; Library No 970524; 14 October 1997

KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Murray J, with which I entirely agree. For those reasons, I would dismiss this appeal.
PIDGEON J: I agree with the reasons to be published by Murray J.
MURRAY J: On 25 March 1997, the respondent, the Registrar of the Builders' Registration Board, made seven complaints against the appellants pursuant to the Builders' Registration Act 1939 (WA) s 21(1). The complaints were of the following offences ‑
(1)against Fineline Homes (WA) Pty Ltd ("Fineline"), not being registered under the Act, for having between 3 April and 31 July 1996 (in fact on 3 April 1996) entered into a contract or engagement to construct a building for a Mr and Mrs Parker at Bakers Hill for a total charge in excess of $10,000 (in fact $32,000);
(2)against Fineline, not being registered under the Act, for building Mr and Mrs Parkers' building between 3 April and 30 September 1996;
(3)against Fineline, not being registered under the Act, for having between 1 May and 30 September 1996 (in fact on 2 July 1996) entered into a contract or engagement to construct a building for a Mr and Mrs Matthews at Ledge Point for a total charge in excess of $10,000 (in fact $12,354);
(4)against Fineline, not being registered under the Act, for building Mr and Mrs Matthews' building between 1 May and 31 October 1996;
(5)against the appellant Gregory Lewkowski ("Gregory") for having aided Fineline to enter into the contract or engagement to construct the building for Mr and Mrs Parker;
(6)against Gregory for having aided Fineline to enter into the contract or engagement to construct the building for Mr and Mrs Matthews; and
(7)against the appellant Warren Lewkowski ("Warren") for having aided Fineline to build Mr and Mrs Parkers' building.

Each of those charges was of an offence against the Act, s 4(1)(A)(b), which makes it an offence for a person who is not registered under the Act, unless that person is exempted from the necessity of obtaining registration under s 4(2), to:
"enter into any contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement;"
unless the total fee or charge payable in respect of the carrying out of that work does not exceed the amount prescribed by the regulations, which was indeed the sum of $10,000.
Those charges were all defended in the Perth Court of Petty Sessions at a trial which, according to the learned Magistrate, occupied some four and a half days in February 1998. On 11 September 1998, the Magistrate, for reasons which he then published, convicted the appellants of all the offences and imposed fines. Although there was originally an appeal against those penalties, that is not now pursued.
There was, however, an appeal to a single Judge of this Court, Scott J, by all the appellants against their convictions on lengthy grounds, raising various issues. A challenge to the fact‑finding process undertaken by the learned Magistrate and his conclusion that the appellants did not have open to them on the facts a defence under the Criminal Code (WA), s 24, are pursued on a further appeal from Scott J to this Court.
That appeal is brought under the Justices Act 1902(WA), s 206A, pursuant to leave granted by Scott J on three grounds, one complaining that Scott J erred in upholding the fact‑finding process undertaken by the Magistrate when the proper conclusion, it is said, was that the Magistrate had failed to make any proper findings of disputed facts upon which he relied to convict the appellants. Alternatively, it is complained that Scott J wrongly undertook the role which the learned Magistrate had failed to perform and made the necessary findings of fact himself. Further, it is complained that his Honour erred by incorrectly applying s 7 of the Code to the cases against Gregory and Warren when the learned Magistrate had made no finding that their actions had been done "with the intention of aiding Fineline … to commit the offences with which Fineline … was charged."
The Act provides for the registration of builders. The Builders' Registration Board is constituted to govern that process. The Act requires an applicant for registration to demonstrate that the person has the appropriate qualifications: the completion of the prescribed course of training and the accumulation of the prescribed period of practical experience in the building trade, or simply has sufficient practical experience. A company, among other entities, may be registered as a builder if at least one director or a person employed by the company to manage and supervise the building work it undertakes is registered under the Act. Both natural persons and corporate entities may be required to satisfy the board that they have sufficient material and financial resources available to enable them to meet their financial obligations when they become due.
So it may be seen that the Act is concerned to provide a degree of protection to the public dealing with builders by requiring their registration and providing a degree of assurance, not only of the builder's capacity to properly carry out the work of building, but also of their financial capacity. Under s 2, a builder is defined as a person trading as a builder, and a person trading as a builder is defined as a person, partnership, company or other body corporate:
"that is engaged in constructing, altering, repairing, adding to or improving the walls and structural parts of buildings for a fixed sum, percentage, or valuable consideration, or reward other than wages."
In Builders' Registration Board of WA v Roroka Pty Ltd, unreported; SCt of WA (Owen J); Library No 8776; 25 March 1991, Owen J held, consistently with that definition and for the purposes of s 4(1)(A)(b), that to construct or build a building was to engage in work which was not only physically performing the building work but also engaging in the management and supervision of the day‑to‑day building operations which might be carried out by others. His Honour considered that s 4(1)(A)(b) in fact provided two separate offences: one of entering into a contract or engagement to construct a building and one of actually undertaking building work pursuant to any contract or engagement. It can be seen that both forms of offence were charged in this case.
Fineline is clearly not registered under the Act; neither indeed are Gregory or Warren, who is his son. Fineline is a private company. It has an issued capital of $2 divided into two shares, and Gregory and Warren are the sole shareholders. They are also the sole directors of the company. The evidence was that, although Gregory played a leading role in the activities of the company, it acted by the conduct of both Gregory and Warren.
However, it will be noticed that it was not the case that only Fineline was charged with respect to the two contracts and building operations with which the complaints are concerned. Gregory and Warren were themselves charged as having aided Fineline, in Gregory's case to enter into the contracts and in Warren's case to build what was in fact a residence for Mr and Mrs Parker at Bakers Hill.
They were charged in that way in reliance upon the provisions of the Code, s 7(c). That section provides, inter alia, that when an offence is committed (in this case by Fineline) a person who aids another in committing the offence "is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it". So Gregory and Warren might have been charged in just the same way as Fineline was charged, but to charge them with aiding some of the offences committed by Fineline did not invalidate the complaint but simply made clear, by way of that additional particularisation, the nature of the case against the two men.
The provisions of s 7 have long been held to apply to all offences punishable by the law: Wilson v Dobra (1955) 57 WALR 95; West v Suzuka [1964] WAR 112. Equally, it has long been clear that the conduct of the alleged aider which may render him liable as if a principal offender must be carried out with knowledge of the offence which was being or might be committed: Borg v R [1972] WAR 194, 199. It is actual knowledge of the essential facts constituting the offence which is or might be committed which is required: Giorgianni v The Queen (1985) 156 CLR 473, 504 – 7. There must be actual knowledge of at least the likelihood that an offence of the general kind of that in fact committed, was being committed or was likely: He Kaw Teh v The Queen (1985) 157 CLR 523, 570. This, as will be seen, was not a case which involved any question of constructive knowledge – any inference of actual knowledge from the alleged offender's wilful blindness.
For Gregory to be convicted, therefore, he had to be established to have engaged in conduct which aided Fineline to enter into the contracts in question knowing that that was occurring, knowing that the nature of the contracts was for the construction of a building, and knowing that Fineline was not registered. For Warren to be convicted, he had to be established to have so conducted himself as to aid Fineline to build Mr and Mrs Parkers' residence knowing the character of the work in which he was engaged and knowing that Fineline was not registered.
The learned Magistrate expressed his findings of fact shortly in 13 propositions about which he said, "remarkably" after four and a half days of hearing, there was no dispute. Before Scott J and this Court the appellants argue that the learned Magistrate must have misunderstood what was required and he should be taken to have failed to make the necessary findings of fact because he is said to have overlooked the fact that in respect of some of the matters addressed in his findings of fact there were disputes between witnesses and, in particular, the version of events given by a prosecution witness, a Mr Walter, was contradicted, particularly by Gregory in giving evidence for the defence and, to a lesser extent, by Warren.
Scott J rejected that submission, as would I. In my opinion, it is self‑evidently correct, as Scott J said, that the learned Magistrate's reasons are to be interpreted as expressing the conclusion that the evidence which he accepted overwhelmingly supported the findings of fact he made. Indeed, as those findings were expressed, it is perfectly clear that the evidence of Gregory that he was acting as Walter's agent or by his authority and the evidence of Warren that it was really Walter who was the builder, and he was not for that reason acting in any role of administration or supervision of the building work, was rejected by the Magistrate, who made findings of fact directly to the contrary of the propositions emerging from the evidence of those defence witnesses. It follows, in my view, that the first two grounds of appeal are without merit.
Further, the third ground of appeal in respect of the application of s 7 of the Code is also without merit. As I have indicated above, the law is not that to aid the commission of an offence by another, one has to intend that one's conduct is in aid of the commission of the offence. The mental element of aiding is knowledge in general terms of the offence being or likely to be committed by the principal offender, and on the findings of fact made by the Magistrate there could be no doubt that when Gregory and Warren so conducted themselves as to aid the commission of the offences by Fineline, they knew all that it was necessary to know about what was being done.
To make those views clear in the context of the facts as they were found by the learned Magistrate, I should briefly refer to the subject matter of these prosecutions. They centred on two projects to sell and erect kit homes for the Parkers and the Matthews. Because none of Fineline, Gregory or Warren was a registered builder, they had run into previous difficulty with the Board, as a result of which they had taken legal advice on the way in which they might proceed to conduct their business without breaking the law. The advice was that there should be two contracts. Fineline could make a contract to sell to the purchaser the particular kit home delivered on site. Then a further contract could be made between the purchaser of the kit home and the registered builder for the construction of the building on site. It was the latter type of contract for the Parkers' and the Matthews' homes with which these prosecutions were concerned. They were lump‑sum building contracts on standard forms provided by the Housing Industry Association. The legal advice was that not only did the registered builder have to enter into that contract, but he had to build the building, or a further offence would be committed against the Act. If that course was followed then it mattered not how Fineline was remunerated, if at all, in respect of the building process.
In this case, the two contracts were purportedly entered into by Walter with the Parkers and Matthews respectively, but it was Gregory who signed "for and on behalf of the builder". It was he who had negotiated the contractual arrangements, and the learned Magistrate found on the evidence that he entered into the contract on behalf of Fineline in each case.
The buildings were constructed and the Magistrate found that they were built by Fineline through its officers, Gregory and Warren. Warren, his Worship was satisfied, managed and supervised the building of the Parkers' home between the dates alleged in the relevant complaint. The Court had before it the evidence of Mrs Parker and Mr Matthews as to their dealings with Gregory and Warren and the way in which the homes were built. All the contract administration and the financial accounting was quite evidently done in the name of and by Fineline. Such documents were signed by or for Gregory on behalf of Fineline.
The prosecution case was always that the building contracts were a sham or subterfuge in an endeavour to circumvent the statutory provisions. In reality, they contended, the contracts were with and the building was done by Fineline. That was undoubtedly the effect of the factual findings made by the learned Magistrate and, apart from the evidence to which I have referred above, he had available to him and clearly accepted the evidence of Mr Walter. Walter had had an association with Fineline. He had acted as the registered builder for that company between 1992 and 1995. However, as a result of a quite unrelated prosecution by the Builders' Registration Board, he terminated his contract with Fineline and ceased any involvement with that company in October 1995. He then moved to and was working in Telfer in the north‑west of the State. He was there when these contracts were entered into and during at least the majority of the period when the buildings were being constructed. He did not know of the contracts which purported to be made in his name. He had given no authority for that to be done. Indeed, he knew nothing of the Parkers or the Matthews and their homes. He had no involvement in the building work.
On those facts alone, I would have thought that convictions were inevitable on all complaints. Indeed, the matter was not relevantly advanced for the defence, in my view, by the evidence of Gregory and Warren. Properly understood, I think, Warren's evidence was that, as a director of Fineline, he did a lot of the work, including for the Parkers, of constructing the homes. There was some cavil about whether he could properly be said to have supervised, but the short fact of the matter is that he did the building work substantially himself, and he did so in his capacity as a director of Fineline, knowing for whom he was acting and knowing of the lack of registration, and indeed once it was concluded that, in truth, the homes were built by Fineline it necessarily followed that he was guilty of the offence of aiding Fineline to build the Parkers' home.
Gregory gave evidence and expressed what was really the one point of dispute between him and Walter. He said that he made the contracts in Walter's name because he had his authority generally to do so. He had a contractual arrangement with Walter, he said, and Walter was being paid by Fineline, who were making payments on his behalf for solicitors' costs. He said that their arrangement was such that he was not obliged to refer such matters to Walter, and it is that evidence which the Magistrate clearly rejected in favour of that given by Walter.
In any event, Gregory agreed that Walter knew nothing of the contracts or of the particular jobs and that he was away and exercised no building function in respect of either job. Indeed, Gregory gave evidence that Warren "would have been in charge" of the Parkers' job. In those circumstances, it is perhaps not surprising that the learned Magistrate regarded the essential facts as being, in truth, undisputed.
At trial, on behalf of all defendants, it was suggested that the Code s 24 would negate their criminal responsibility because the appellants had an honest and reasonable but mistaken belief in facts which would make their conduct innocent. In relation to the offences concerned with the building work, I find it impossible to see anything in the evidence which could possibly ground such a defence.

As to the offences concerned with the contractual arrangements, it was Gregory's state of mind which was in point. It is difficult to understand what the relevant honest and reasonable but mistaken belief was suggested to be. He never suggested that he might be wrong about his contractual arrangement with Walter, and in any event that would not have helped to avoid criminal responsibility, as the Magistrate thought that if it was simply being put that he thought he was entitled to act in the way that he did, that was really a mistake about the requirements of the law. In any event, it is clear that the Magistrate rejected such a proposition, saying that Gregory could hardly have honestly held such a belief when he is seen to have taken legal advice and then acted contrary to that advice, and if he did hold such an honest belief, in those circumstances it could hardly be reasonable. In truth, in my opinion, the operation of s 24 of the Code simply could not arise, having regard to the evidence and the findings made by the learned Magistrate.
In my opinion, the appeal by all three appellants should be dismissed.