Luff, Paul Michael v McHarg, Robert William

[1984] FCA 235

Re: PAUL MICHAEL LUFF
And: ROBERT WILLIAM McHARG
No. ACT G11 of 1984
Criminal Law - Justices
3 FCR 305

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Kelly(1) and Neaves(1) JJ.

CATCHWORDS

Criminal Law - Practice and procedure - Information - Ordinance proscribing conduct - General provision that contravention or failure to comply with provision of Ordinance constitutes an offence - Statutory defences prescribed - Meaning of "an offence against" a provision of the Ordinance - Whether information disclosed an offence known to the law.

Liquor Ordinance 1975 (A.C.T.), ss. 80, 103

Court of Petty Sessions Ordinance 1930, s. 27

Beckwith v. The Queen, (1976) 135 C.L.R. 569.

Parmeter v. Proctor, (1949) 66 W.N. 48.

Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason, (1964) 81 W.N. (Pt. 1) (N.S.W.) 286.

Robins v. Orton, (1980) 3 N.T.R. 1.

Reg. v. The Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd., (1977) 136 C.L.R. 235.

Barton v. Croner Trading Pty. Ltd. (Full Court of the Federal Court - unreported - 19 July 1984).

Thompson v. Riley McKay Pty. Ltd. (No. 2), (1980) 42 F.L.R. 279.

R. v. Holloway Prison, (1916) 85 L.J.K.B. 689.

Justices - Information (Australian Capital Territory) - Form and sufficiency - Allegation of offence against general provision that failure to comply with Liquor Ordinance constitutes offence - Whether offence disclosed - Meaning of "an offence against" - Liquor Ordinance 1975 (A.C.T.), ss 80, 103.

HEADNOTE

The Liquor Ordinance 1975 (A.C.T.) (the Ordinance), s. 80 provides:

"(1) The holder of a licence or a permit shall not sell or supply liquor to a person under the age of 18 years.

(2) . . .

(3) . . . . " Section 103 provides:

"(1) A person who contravenes, or fails to comply, with a provision of this Ordinance, other than a provision of Part VII, is guilty of an offence.

(2) Proceedings in respect of an offence against this Ordinance shall not be instituted except -

(a) in the case of an offence against section 80, 81, 82, 83 or 84 - by the Registrar or a member of the Police Force of the Territory; and

(b) in any other case - by the Registrar."

Held: (1) An information charging a defendant with the commission of "an offence against s. 103 of the Liquor Ordinance 1975 in that he . . . did sell liquor . . . contrary to s. 80(1) of the said Ordinance" is valid and does disclose the commission of an offence against the Ordinance.

(2) In s. 103(2) the phrase "an offence against . . ." means "an offence involving a contravention of or a failure to comply with those sections".

HEARING

Canberra, 1984, July 19; August 14. #DATE 14:8:1984

APPEAL

This was an appeal from a decision of the Supreme Court of the Australian Capital Territory upholding an appeal against conviction for an offence against the Ordinance.

B. Sully Q.C. and N. Cowdery, for the appellant.

F.J. Purnell, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Director of Public Prosecutions.

Solicitors for the respondent: Vandenberg Reid Pappas & MacDonald.

B.A.G.

ORDER

1. The appeal be allowed.

2. The respondent's appeal against his conviction by the Court of Petty Sessions and against the penalty imposed in respect of that conviction be remitted to the Supreme Court of the Australian Capital Territory to be heard and determined according to law.

3. The respondent pay the appellant's costs of the appeal.

4. There be granted to the respondent a certificate in terms of s. 6 of the Federal Proceedings (Costs) Act 1981 that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:-

(a) the costs incurred by the respondent in relation to the appeal to this Court; and

(b) the costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the said appellant in pursuance of this order.

Appeal allowed.

JUDGE1

This is an appeal by PAUL MICHAEL LUFF (appellant) against a decision of the Supreme Court of the Australian Capital Territory given on 28 March 1984 upholding an appeal by ROBERT WILLIAM McHARG (respondent) against his conviction in the Court of Petty Sessions for an offence against the Liquor Ordinance 1975 (the Ordinance).

The relevant sections of the Ordinance are ss. 80 and 103. Section 80, which appears in Part IX of the Ordinance, provides:-

"(1) The holder of a licence or a permit shall not sell or supply liquor to a person under the age of 18 years.

(2) It is a defence in proceedings for an offence against sub-section (1) if the defendant proves that the person to whom liquor was sold or supplied, as the case may be, was not less than 16 years of age and that the defendant had reasonable grounds for believing that the person was not less than 18 years of age.

(3) . . . "

Section 103 provides:-

"(1) A person who contravenes, or fails to comply, with a

provision of this Ordinance, other than a provision of Part VII, is

guilty of an offence.

(2) Proceedings in respect of an offence against this Ordinance shall not be instituted except:-

(a) in the case of an offence against section 80, 81, 82, 83 or 84 - by the Registrar or a member of the Police Force of the Territory; and

(b) in any other case - by the Registrar."

"Registrar" is defined in s. 4(1) to mean the Registrar of Liquor Licences for whose appointment s. 15 of the Ordinance provides.

Section 11A(1) of the Interpretation Ordinance 1967 reads:-

"In the interpretation of a provision of an Ordinance, a construction that would promote the purpose or object underlying the Ordinance (whether that purpose or object is expressly stated in the Ordinance or not) shall be preferred to a construction that would not promote that purpose or object."

The information upon which the appellant relied, headed "Liquor Ordinance 1975 Section 103", read:-

"The information of PAUL MICHAEL LUFF, Registrar of Liquor Licences at Canberra in the Australian Capital Territory laid on the 9th day of June 1983 before the undersigned Deputy Clerk of the Court of Petty Sessions at Canberra in the said Territory, WHO SAYS THAT on or about 24 March 1983 at Canberra in the said Territory Robert William McHarg did commit an offence against section 103 of the Liquor Ordinance 1975 in that he being the holder of a licence to sell liquor he (sic) did sell liquor to a person under the age of 18 years namely 'Kim Nobbs' contrary to section 80(1) of the said Ordinance."

The summons addressed to the respondent referred to the offence alleged as being fully set forth in the information.

Before the learned Stipendiary Magistrate the respondent was convicted, fined $150 and ordered to pay costs.

The respondent succeeded in his appeal to the Supreme Court upon what was described as a preliminary point taken at its outset. Counsel had argued that under the terms of the Ordinance the section which created the offence in question was s. 80 and that the information was a nullity in that it charged an offence not known to the law, viz., an offence against s. 103. The learned primary Judge rejected that proposition but raised a further consideration, "that s. 103(1) does create an offence of contravening or failing to comply with a provision of the Ordinance and that the words of s. 103(2) insofar as they refer to an offence against s. 80, 81, 82, 83 or 84 are inconsistent with s. 103 and incapable of application". The latter reference to s. 103 was apparently intended as a reference to s. 103(1).

His Honour formed the view that, since s. 103 created an offence of contravening or failing to comply with a provision of the Ordinance other than a provision of Part VII, it was unnecessary to resort to s. 33 of the Interpretation Ordinance 1967 (a provision by which contravention, by act or omission, of a section or sub-section of an ordinance at the foot of which a penalty is set out, is declared to be an offence against the ordinance). He referred to the fact that s. 103(2) limited the persons who may institute proceedings in respect of offences against the Ordinance. He expressed the opinion that to give effect to the apparent legislative purpose would be to give a different meaning to the word "offence" in each of s. 103(1) and s. 103(2). He considered this could be done without stretching the canons of interpretation and that the only way to interpret s. 103 was to regard the words of s. 103(2)(a) as surplusage. He expressed the view that there was no such thing as an offence against s. 80(1), a contravention of it not amounting to the commission of an offence against it. He found no help in the use of the word "offence" in s. 80(2). He held that the information did disclose an offence known to the law and was not a nullity because it was appropriately drafted to charge an offence against s. 103(1). But he held that the appellant could have purported to act only under s. 103(2), a provision he found to be incapable of application because of its ambiguity and inconsistency with the other provisions of the Ordinance. He concluded that the proceedings had not been validly instituted, allowed the appeal and dismissed the information.

In his submissions senior counsel for the appellant referred to the finding of the Supreme Court that the words of s. 103(2), insofar as they refer to offences against ss. 80 - 84, are inconsistent with s. 103(1) and incapable of application. His submissions in that regard included the following -

"The reference in section 103(2) to 'an offence against this Ordinance' is simply an abbreviated reference to 'a contravention of or a failure to comply with a provision of this Ordinance'.

The reference in section 103(2)(a) to 'an offence against section 80' is simply an abbreviated reference to a contravention of or a failure to comply with a particular provision of the Ordinance, namely the provision made by section 80 thereof."

He contended that those submissions gave the words their ordinary meaning in their context and were consistent with the use, in the several provisions of Part IX of the Ordinance which prescribe a statutory defence, of the expression "an offence against" as being descriptive of a contravention of, or failure to comply with, the particular section forming part of Part IX. He said they gave effect to the manifest legislative intent.

Counsel for the respondent sought and was given leave to file out of time a notice under O. 52, r. 22(3) of the Rules of this Court raising the issue whether the Supreme Court was in error in ruling that the information disclosed an offence known to the law. He made a number of submissions:-

. that the information was a nullity;

. that if s. 103(1) is the section which creates an offence in relation to a breach of s. 80(1), s. 80(2) cannot mean what it says and there would therefore be a "denial" of the defence of reasonable belief;

. that s. 103(1) was accordingly not intended to apply to s. 80(1) and s. 103(2) was mere surplusage;

. that there was what he described as an ambiguity in the Ordinance, viz., whether s. 103(1) was the section which created an offence in relation to s 80(1) or whether s. 80(1) itself created an offence; and

. that a defendant was not to be put in peril upon an ambiguity in the legislation.

In reply, senior counsel for the appellant referred to Parmeter v. Proctor, (1949) 66 W.N. 48; Ex parte N. Ormsby & Sons Pty. Limited; Re Mason, (1964) 81 W.N. (Pt. 1) (N.S.W.) 286 (Ormsby); and Robins v. Orton, (1980) 3 N.T.R. 1.

His Honour, as his Reasons for Judgment indicate, took the view that the Ordinance did not create an "offence against s. 80" and that a contravention of s. 80(1) did not amount to the commission of an offence against s. 80. Yet s. 80 is in Part IX of the Ordinance headed "Offence". The headings of the Parts of an Ordinance form part of it: see Interpretation Ordinance 1967, s. 12. Section 80 is in a form common to other legislation prohibiting the selling to which it refers and is in explicit and unmistakable language. It could be argued that it would be an offence to breach its provisions, assisted if necessary by the heading quoted, without reference to s. 103(1); particularly as s. 80(2) seems to accept that s. 80(1) has already created an offence to which that sub-section then provides a defence. The language of s. 103(1) is not incompatible with that approach, though there is force in the argument that, on that construction, it would be redundant. Section 103(2) is quite consistent with the offence being "created" by s. 80 or s. 103(1). On the other hand, s. 103(1) is worded so as to "create" offences against the Ordinance, one of which is a contravention of s. 80.

A drafting technique similar to that used in ss. 80 and 103 of the Ordinance is found in the Trade Practices Act 1974 (Cwlth) (the Act) where s. 53 proscribes certain conduct while s. 79 provides that a person who contravenes a provision of Part V (which includes s. 53) is guilty of an offence. Although s. 53 does not provide for a statutory defence (cf. s. 80(2) of the Ordinance), s. 85 in Part VI of the Act does.

In Reg. v. The Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd., (1977) 136 C.L.R. 235, the informations alleged contraventions of s. 53(a). The Court, however, referred to s. 79 as being the provision which made a contravention of s. 53(a) an offence. At p. 238, Barwick CJ said:-

" . . . s. 79(a) of itself does not proscribe any particular action or conduct: it merely provides the consequence of a breach of other provisions of the Act."

At p. 240, Mason J (with whom the remaining four Justices concurred) said:-

"Although s. 53(a) is the provision in the Act which C.L.M. is alleged to have contravened, it is s. 79 which makes contravention of the provisions of Pt V (which contains s. 53(a)) an offence against the Act."

In Barton v. Croner Trading Pty. Limited, a decision of the Full Court of this Court delivered 19 July 1984 and as yet unreported, the Court was concerned with contraventions of ss. 53(a) and 53(c) of the Act. The defendant was charged with "commit(ting) offences constituted by s. 79 of the said Act" in that it had contravened ss. 53(a) and 53(c).

The forms of information in Thompson v. Riley McKay Pty. Ltd. (No. 2), (1980) 42 F.L.R. 279, were similar, it being alleged against the defendant that it "was guilty of offence(s) against s. 79 of the . . . Act in that in contravention of s. 53(a) and s. 53(c) of the said Act, it did . . . falsely represent . . . etc."

There does not appear to have been any discussion in those cases concerning the correct forms of information. Nevertheless, the forms used were not subjected to criticism.

As the learned primary Judge said, in our respectful opinion, correctly, the information did disclose an offence known to the law. It was not a nullity. It was appropriately drafted to charge an offence against the Ordinance. That it was sufficient in law follows from the provisions of s. 27(2) of the Court of Petty Sessions Ordinance 1930 which reads:-

"The description of any offence in the words of the Ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law."

In R. v. Holloway Prison, (1916) 85 L.J.K.B. 689 at p. 690 Lord Reading CJ said:-

"There is no law which says that the exact language of an Act of Parliament under which a person is charged must appear in the charge sheet charging that person. It is enough if the words in the charge sheet are sufficient to embody the elements of the offence which is created by the statute."

The conclusion that the offence with which the respondent was charged was an offence against the Ordinance is clearly correct.

But, with due respect to his Honour, it does not follow that s. 103(2) is meaningless even if it must be said that the provision is not happily framed. In our opinion, the phrase "an offence against section 80, 81, 82, 83 or 84" is used in the sub-section to mean "an offence involving a contravention of or a failure to comply with those sections". So read the provision gives effect to what is, in our opinion, the plain purpose of the draftsman, namely that proceedings in respect of an offence consisting of a contravention of or a failure to comply with the relevant provisions of s. 80, 81, 82, 83 or 84 are not to be commenced by any person other than the Registrar or a member of the Australian Federal Police (Australian Federal Police Act 1979, s. 5) and proceedings for an offence consisting of a contravention of or a failure to comply with any other provision of the Ordinance are not to be commenced by any person other than the Registrar.

The phrase "against sub-section (1)" in s. 80(2) is also, in our view, to be read as referring to an offence involving a contravention of or a failure to comply with s. 80(1).

In his Reasons for Judgment his Honour referred to two passages from the judgments in Beckwith v. The Queen, (1976) 135 C.L.R. 569. The first, at p. 576, from the judgment of Gibbs J (as he then was), is as follows:-

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams, (1935) 53 C.L.R. 563, at pp. 567-568; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort."

The second, at p. 585, was from the judgment of Murphy J where he said:-

"When Parliament imposes very heavy criminal penalties, it should be taken as speaking plainly and not as creating offences which can only be understood (if at all) with very great difficulty."

Applying the ordinary canons of construction and bearing in mind the provisions of s. 11A of the Interpretation Ordinance 1967, we are satisfied that there is no such ambiguity in the legislation as to warrant the conclusion which his Honour reached. Giving full weight to the dicta just quoted, although noting, as did his Honour, that the penalty attaching to the offence in question is not very heavy, we reject the respondent's contention that the information was a nullity and, with great respect, find ourselves unable to agree with the conclusion reached by his Honour concerning s. 103(2) of the Ordinance.

The appeal should be allowed and the respondent's appeal against his conviction by the Court of Petty Sessions and against the penalty imposed in respect of that conviction should be remitted to the Supreme Court to be heard and determined according to law.