Mansell v The Queen
[2004] WASCA 111
•2 JUNE 2004
MANSELL -v- THE QUEEN [2004] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 111 | |
| COURT OF CRIMINAL APPEAL | 02/06/2004 | ||
| Case No: | CCA:76/2003 | 9 MARCH 2004 | |
| Coram: | MALCOLM CJ MURRAY J EM HEENAN J | 9/03/04 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MURRAY WILLIAM MANSELL THE QUEEN |
Catchwords: | Criminal law and procedure Gaining a benefit for another by deceit or fraudulent means Definition of "person" in the Criminal Code (WA) which definition includes a corporation applicable to such offence Whether definition of "person" in s 5 of the Interpretation Act 1984 (WA) applicable so as to include a corporation |
Legislation: | Criminal Code (WA), s 1, s 409(1)(c) Interpretation Act 1984 (WA), s 3(1)(b), s 5 |
Case References: | G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183. , Geraldton Fishermen's Co-operative v Munro [1963] WAR 129 Grain Sorghum Marketing Board v Supastock Pty Ltd [1964] Qd R 98 Parsons v The Queen (1999) 195 CLR 619 Tan v The Queen [1979] WAR 149 BRK v The Queen [2001] WASCA 161 Lewis v The Queen [2000] WASCA 9 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MANSELL -v- THE QUEEN [2004] WASCA 111 CORAM : MALCOLM CJ
- MURRAY J
EM HEENAN J
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY DCJ
File Number : IND 977 of 2002
(Page 2)
Catchwords:
Criminal law and procedure - Gaining a benefit for another by deceit or fraudulent means - Definition of "person" in the Criminal Code (WA) which definition includes a corporation applicable to such offence - Whether definition of "person" in s 5 of the Interpretation Act 1984 (WA) applicable so as to include a corporation
Legislation:
Criminal Code (WA), s 1, s 409(1)(c)
Interpretation Act 1984 (WA), s 3(1)(b), s 5
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S M Brennan
Respondent : Mr D Dempster
Solicitors:
Appellant : Shane Michael Brennan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183. ,
Geraldton Fishermen's Co-operative v Munro [1963] WAR 129
Grain Sorghum Marketing Board v Supastock Pty Ltd [1964] Qd R 98
Parsons v The Queen (1999) 195 CLR 619
Tan v The Queen [1979] WAR 149
(Page 3)
Case(s) also cited:
BRK v The Queen [2001] WASCA 161
Lewis v The Queen [2000] WASCA 9
(Page 4)
1 MALCOLM CJ: This is an appeal against conviction. On 15 May 2003 the appellant, Murray Mansell, was convicted after trial, a trial which commenced on 12 May 2003, of an offence under s 409(1)(c) of the Criminal Code (WA) that on or about 29 August 1998 at West Perth the appellant, with intent to defraud, by deceit or fraudulent means gained a benefit, namely, a cheque in the sum of $35,000, for Red Rock Holdings Pty Ltd ("Red Rock").
2 In the first half of 1998 the appellant was employed by a group of companies referred to as the "Progressive Group". There were three companies in the group, namely, Mainline Equity Pty Ltd ("Mainline"), Quality Concrete Services Pty Ltd ("Quality Concrete") and Progressive Earthmoving Pty Ltd ("Progressive").
3 Initially there had been three directors of each of the companies. In about June 1998 one of them, a Mr Hewer, resigned. The two remaining directors were Andrew Craig Risbey and Thomas Shore.
4 One of the companies in the group had been placed in voluntary administration. The appellant, who was an accountant, was brought into the group with the aim of assisting the group and, in particular, Mainline Equity to trade out of existing financial difficulties.
5 As part of what was referred to as a "rescue plan" a fourth company was incorporated, on the appellant's advice, called Progressive Civil Engineering Contractors Pty Ltd ("Progressive Engineering").
6 These four companies were based in Wangara in Perth's northern suburbs. In mid-July 1998 the appellant also became involved with another company, Red Rock. This company operated what was substantially a family business run by one David Lundstrom and his son Trevor. The business of Red Rock was the manufacture and sale of agricultural machinery, including some machinery which had been invented by the Lundstroms.
7 The appellant proposed some form of merger between the Progressive Group and Red Rock. In anticipation of the merger, Red Rock moved its business from Pickering Brook to Wangara at a location near to the premises occupied by the Progressive Group.
8 No merger took place. However, shortly after Red Rock moved to Wangara the appellant was alleged to have committed the offence the subject of the indictment, namely, that on or about 20 August 1998, with intent to defraud, by deceit or fraudulent means, he gained a benefit,
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- namely, a cheque for the sum of $35,000 for Red Rock contrary to s 409(1)(c) of the Criminal Code. Section 409(1)(c) relevantly provides that:
"(1) Any person who, with intent to defraud, by deceit or any fraudulent means -
(a) obtains property from any person;
(b) induces any person to deliver property to another person;
- (c) gains a benefit, pecuniary or otherwise, for any person;
(d) causes a detriment, pecuniary or otherwise, to any person;
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime …".
"The term 'person' and 'owner' and other like terms, when used with reference to property, include corporations of all kinds, and any other associations of persons capable of owning property: They also, when so used, include Her Majesty."
10 Section 1 also contains the following definition of "property":
"The term 'property' includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership."
11 In the written submissions filed on behalf of the State it was conceded that the definition of "person" in s 1 of the Code had no
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- application to s 409(1)(c). This was said to be because the definition in s 1 was not merely of "person" but also of "owner" and other like terms, when used with reference to property. The concession was that the word "person" was not used in that way in s 409(1)(c). Consequently, so it was submitted, it was necessary to rely on the definition of "person" in s 5 of the Interpretation Act 1984 (WA). The submission on behalf of the State was that the definition of the term "person" and other terms in relation to property within s 1 of the Code was not "inconsistent" within the meaning of s 3(1)(b) of the Interpretation Act, such as to make s 5 of that Act inapplicable. Section 5 contains the following definition of "person":
"'[P]erson' or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate."
13 In my opinion, whether the misappropriation of the proceeds of the sale of the truck was the gravamen of the offence or the cheque itself was regarded as the gravamen of the offence, there was a misappropriation either of the proceeds of the cheque or of the obtaining of a benefit either in the form of money or property.
14 In G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183 the Full Court (Burt CJ, Brinsden and Smith JJ) dealt with a case in which the appellant, which I shall refer to as "Coles", a limited company, was convicted of selling contaminated food. The food had been manufactured and packaged by a third party and had become contaminated without the knowledge or fault of Coles, nor was there any practicable method of intermediate inspection available to Coles. Coles appealed on the basis that it had an honest and reasonable but mistaken belief under s 24 of the Criminal Code. It was held in that case that, although a limited company was within the definition of "person" in s 1 of the Code, for the purposes of s 24 it was necessary that a positive belief that the food was of the quality required had to be held by some person exercising the function of management in order to make out the defence. The decision of the Magistrate that there had been no mistake satisfying the requirements of s 24 of the Code was upheld. Burt CJ said at 185 - 186:
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- "It has been held by the Full Court of the Supreme Court of Queensland in Grain Sorghum Marketing Board v Supastock Pty Ltd [1964] Qd 98, and by this Court in Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129, and followed by a decision of this Court in McKenzie v C J Coles & Coy Ltd decided on 22 June 1983 and not reported, that 'a person' within the meaning of s 24 of the Code includes a corporation and that the definition of 'person' in s 1 of the Code does not indicate an intention that that word in s 24 should not be understood in the sense of s 5 of the Interpretation Act, 1984. I have reservations as to that. If that be accepted then, as it seems to me, the law was changed in 1918 by the enactment of the Interpretation Act of that year. That Act defines the word 'person' to include a body corporate. Such a definition is not to be found in the Interpretation Act as it was when the Code was enacted - the Interpretation Act, 1898 - and it may be observed in passing that the definition of the word 'person' in the 1896 digest which also 'included a body corporate' was omitted from the Code. As it seems to me, there is much to be said for the proposition that Chapter V of the Code is dealing with the criminal responsibility of natural persons and in many sections within that chapter - insanity, intoxication, immature age - this is clearly so. However, the Grain Sorghum case is a case of authority. It has stood for 20 years and it seems to have been followed without question in this state and in Queensland - see Larsen v Coles (unreported) it being a decision of the Full Court of the Supreme Court of Queensland handed down on 19 April 1984. In my opinion this Court should follow it although it does seem to me to create problems which have not been worked out."
15 Brinsden J at 190 said:
"I agree with Burt CJ that this Court ought to follow the Full Court of the Supreme Court of Queensland in Grain Sorghum Marketing Board v Supastock Pty Ltd [1964] Qd 98 and this Court in Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129 where it was held that a 'person' within the meaning of s 24 includes a corporation and that the definition of 'person' in s 1 of the Code does not indicate an intention that the word in s 24 should not be understood in the sense of s 5 of the Interpretation Act 1984."
(Page 8)
16 The proposed merger of the Progressive Group and Red Rock never took place. Shortly after the events the subject of the charge on the indictment, on or about 29 August 1998, the Progressive Group went into receivership.
17 The events the subject of the charge commenced on 31 July 1998. On that date the appellant approached Mr Lundstrom at the office at Wangara and asked him to prepare an invoice on behalf of Red Rock made out to Australian Guarantee Corporation ("AGC"), a finance company, which purported to evidence the sale to AGC of a 1996 Anway boring machine, which was to be delivered to Quality Concrete, one of the companies in the Progressive Group. Delivery was to take place in Port Hedland, where Quality Concrete carried on its business. The sale price was $35,000.
18 Red Rock did not own the boring machine and Mr Lundstrom knew that. However, deferring to what he believed was the appellant's greater business acumen, he went ahead and prepared the invoice. While the boring machine did exist, it was in the possession of Mainline, another member of the Progressive Group which was already in voluntary liquidation.
19 After the invoice was created, the appellant approached his Finance Broker, a Mr Terrence Shorthill. On the basis of information provided to Mr Shorthill by the appellant, Mr Shorthill made an application for finance to AGC, a finance company. The finance was approved.
20 On 28 August 1998 a cheque from AGC in favour of Red Rock was signed by Ms O'Neil for AGC and sent to Mr Shorthill. In the interim a hire purchase agreement between AGC and Quality Concrete had been drawn up and duly signed by the directors of Quality Concrete, Mr Craig Risbey and Mr Thomas Shore, who were under the impression, as a result of what they had been told by the appellant, that what they were doing was part of a refinancing deal.
21 The position then was that all the documents were in place for Quality Concrete to obtain the boring machine from Red Rock and the cheque was sent to Mr Shorthill, who then contacted the appellant. The appellant picked up the cheque on or about 29 August 1998, being the date mentioned in the indictment and the day he collected the cheque from Mr Shorthill. On 31 August 1998 the appellant attended at the Stirling Gate branch of BankWest where he had set up banking facilities for the Progressive Group. Consequently, he was well known at the bank and, in
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- particular, well known to the senior commercial banker there, a Mr Stephen Purcell. The appellant told Mr Purcell about his involvement with Red Rock and the fact that there was going to be some kind of merger between Red Rock and the Progressive Group. He then had with him the cheque for $35,000 made payable to Red Rock. Mr Purcell believed the appellant when he said that he had Red Rock's authorisation to alter the payee details, which is what he did. The payee details were changed from Red Rock and paid into the account of Progressive Engineering, the entity previously created on the advice of the appellant as part of the Progressive Group. As a matter of fact, the appellant did not have any authority to deal with Red Rock's accounts at that time. Evidence was led to show that the $35,000 was deposited in the account of Progressive Engineering on 31 August 1998.
22 In short, the State case against the appellant was that he knew very well, when he asked Mr Lundstrom to create the invoice and gave instructions to Mr Shorthill to arrange finance for Quality Concrete to buy the boring machine by way of a hire purchase agreement that, at the material time, Red Rock did not own the machine. He also knew that he was not engaged in any refinancing between Mainline and Quality Concrete as part of his rescue package for the companies, but he was creating the false impression that Red Rock owned the machine and was actually selling it to Quality Concrete.
23 The State case at the trial was that Red Rock was never entitled to a payment of $35,000 from AGC. That was never intended. The appellant's intention was to keep the money within the Progressive Group, which is what he did by fraudulently representing that Red Rock was the true owner and then, without authorisation, altering the payee details on the cheque.
24 The appellant appealed against his conviction on the single ground that the learned trial Judge erred in law in ruling that, for the purposes of s 409(1)(c) of the Code, the words "any person" include a corporation. As has already been seen, the definition of "person" and, in particular, in the context of "property" includes "corporations of all kinds".
25 During the course of argument it was accepted by counsel for the appellant that the cheque was property and the proceeds of the cheque were property. The gravamen of the offence was that the appellant fraudulently misrepresented to the bank that Red Rock was the true owner and then, without authorisation, altered the payee details on the cheque so that the funds were paid to Progressive Engineering.
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26 The cheque itself is an item of personal property which evidences a chose in action. By altering the payee on the cheque from Red Rock to Progressive Engineering he gained a pecuniary benefit for Progressive Engineering. The means by which that was achieved were such that it gave rise to an intention to defraud. The fraudulent means included the false representation to AGC that was to induce the sale to AGC of the boring machine which was to be delivered to Quality Concrete. The cheque from AGC was payable to Red Rock. The boring machine was in fact an asset of Mainline which was already in voluntary administration.
27 In my opinion, the cheque payable to Red Rock was itself a benefit to Red Rock obtained by fraudulent means and the offence charged was complete when that cheque was obtained. In the present context it was immaterial that, without authority, having obtained the pecuniary benefit of the cheque made out to Red Rock, the appellant then, without having any authority to do so, procured the payment of the proceeds of the cheque into the account of Progressive Engineering.
28 It follows that while "benefit" is a term of wider import than property, it would include obtaining a benefit by deception, namely, a document such as a cheque fraudulently made out to a party who was not entitled to it, but obtains the benefit of it, namely, the proceeds which are themselves another species of property in the form of a sum of money constituting a pecuniary benefit.
29 From that position, counsel for the appellant accepted that it was necessary to argue that while s 409(1)(c) may be interpreted to refer more widely to benefits other than property properly so-called, the beneficiary cannot be a corporation. On this basis counsel submitted that, on analysis of s 409(1)(a) to (d), pars (a) and (b), talk of "property" and "person" and "person" and "property" respectively, par (c) refers to "benefit, pecuniary or otherwise, for any person" and par (d) refers to "detriment, pecuniary or otherwise, to any person".
30 It was submitted that it was at this point that reference should be made to the Interpretation Act. Section 5 of the Act defines a "person" as including a corporation, but s 3(1) of the Act provides that:
"The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law -
(a) express provision is made to the contrary;
(Page 11)
- (b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
- (c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application."
31 It was contended that such an inconsistency existed between the meaning of "person" when used in the Code and s 5 of the Interpretation Act. It was contended that the negative implication in s 409(1) of the Code was that it is only when the expression "person" is used with reference to property, not by reference to a "benefit", that it has the extended meaning to include a corporation.
32 In my opinion, both the cheque itself and the proceeds of the cheque constituted "property" which the appellant had gained by fraudulent means with the intention of gaining a pecuniary benefit for Progressive Engineering.
33 From this position, it was contended that, if the concept of "property" includes the concept of "benefit, pecuniary or otherwise", it must follow that the concept "detriment, pecuniary or otherwise …" is the obverse of "property". In my opinion, however, by the fraudulent means of altering the payee on the cheque to Progressive Engineering, the appellant was creating the false impression that Progressive Engineering owned the machine and that it was actually selling it to Quality Concrete. This was a subsequent use of fraudulent means to gain a pecuniary benefit for Progressive Engineering which involved the fraudulent conversion of the cheque by the applicant from one payable to Red Rock to one paid into the account of Progressive Engineering, knowing that he had no authority to deal with a cheque payable to Red Rock's bank account at that time or otherwise. These further steps may or may not have constituted a second offence, but as previously mentioned, the offence charged was complete. The appellant obtained the cheque in favour of Red Rock, by fraudulent means.
34 It is no answer to contend that s 409(1) contemplates a benefit or a detriment, "pecuniary or otherwise", when in this case the relevant fraudulent alteration of the cheque was to procure, by fraudulent means, a pecuniary benefit.
(Page 12)
35 In my opinion, the learned Judge correctly held that for the purposes of s 409(1)(c) "any person" includes a corporation in the context of the circumstances of this case. His Honour was entitled to reach that conclusion on the proper construction of s 409 of the Criminal Code.
36 These are my reasons for joining in the making of the order of the Court at the conclusion of the hearing that this appeal be dismissed.
37 In the event that I am wrong in my conclusion regarding the interpretation of s 409, I consider that the same result follows by virtue of the application in the present context of the definition of "person" in s 5 of the Interpretation Act when read with the definition of "person" in s 1 of the Code.
38 MURRAY J: In this case I have had the benefit of access to a draft of the reasons for judgment of Malcolm CJ, with which I generally agree.
39 As to the facts of the case, it is sufficient to note that the question of construction of s 409(1) of the Criminal Code (WA) is to be approached on the basis that upon the evidence the allegation in the indictment that the appellant, with intent to defraud, by deceit or fraudulent means, gained a benefit, a cheque in the sum of $35,000, for Red Rock Holdings Pty Ltd, was established beyond reasonable doubt.
40 The enactment of s 409 in its present form in 1990 was part of a comprehensive process of reform of the law of fraud. Ch 40, in which s 409 appears, contains no other section. The section replaces the previous sections 408 – 413 so as to provide a complete coverage of the criminal offence of fraud. The section in its present form draws upon the provisions of the Theft Act 1968 (UK) and the Crimes (Theft) Act 1973 (Vic), but its provisions are wider than the coverage provided by those sections and concepts already familiar in the Code are utilised, avoiding the concept of dishonesty as the mental element in the offence. The section also provides for cases where services or other benefits are fraudulently obtained or detriments fraudulently caused.
41 In Tan v The Queen [1979] WAR 149, this Court examined the meaning of the phrase "intention to defraud" in the context of s 424 of the Code, an offence described by the shorthand tag of fraudulent false accounting. It was held that an intent to defraud in the context of that section required an intention to inflict economic loss on another, but Wallace J put it a little more broadly, at 157, when his Honour, having reviewed the relevant authorities, concluded that the expression "intent to defraud" in the context of s 424:
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- " … does require the proof to a jury's satisfaction of an accused person's intention to deprive his employer of property or to act to his injury or detriment."
42 Such injury or detriment would not necessarily be quantifiable in pecuniary terms and it is this concept which appears to have been introduced into s 409(1); hence the form of the provision:
"409 . Fraud
(1) Any person who, with intent to defraud, by deceit or any fraudulent means —
(a) obtains property from any person;
(b) induces any person to deliver property to another person;
(c) gains a benefit, pecuniary or otherwise, for any person;
(d) causes a detriment, pecuniary or otherwise, to any person;
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime … "
43 It is clear that, as so defined, the offence of fraud is much wider than was previously provided by s 409, which related only to obtaining goods or credit by a false pretence or wilfully false promise, and by the other related sections in Ch 40.
44 As to the question whether the "person" referred to in s 409(1)(c), and for that matter in s 409(1)(d), may be a corporation, the definition of "person" and "owner" in s 1(1) is relevant. It is provided that in the Code, "unless the context otherwise indicates":
"The term "person" and "owner" and other like terms, when used with reference to property, include corporations of all kinds, and any other associations of persons capable of owning property: They also, when so used, include Her Majesty;"
45 The appellant argues that the context of s 409(1) indicates that that definition can not be applied because in the paragraphs mentioned, the
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- benefit or detriment may be "pecuniary or otherwise" and need not be a form of property. In s 1(1), again unless the context otherwise indicates:
"The term "property"includes real and personal property and everything, animate or inanimate, capable of being the subject of ownership;"
47 Like the definition in the Code, the definition in the Vic Crimes Act is widely drawn. Unlike the Code, it expressly includes things in action and other intangible property. The Court held that the cheques, whether they be personal cheques or bank cheques, were property as defined, not only the pieces of paper themselves, but also considering them as things in action because, as it was put at 632 [35], they were negotiable instruments having:
" … various legal characteristics giving them then a value beyond what otherwise was their quality as mere pieces of paper. The cheques, being complete in form, contained the mandate by the respective drawer to its bank to reduce the credit of its account by payment in favour of a person answering the statutory description of a holder."
48 In my opinion, the cheque in this case was property as defined by the Code. The piece of paper itself was personal property and it was also property viewed as a thing in action, itself capable of ownership, the value of which might be taken to be the sum of $35,000. As I understand it, the appellant obtained the cheque which was payable to Red Rock Holdings Pty Ltd for the purpose of negotiating it at the bank by the process of deception to which Malcolm CJ has referred, and with intent to defraud. The appellant could, in other words, have been charged under s 409(1)(a) because the definition of the term "obtains" in s 1(1) includes obtaining possession of a thing, but he was not so charged and the question remains
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- whether, the appellant having obtained a pecuniary benefit for Red Rock Holdings Pty Ltd, that corporation was a "person" within the meaning of s 409(1)(c).
49 Because it is the case that the concept of a benefit in that paragraph and the concept of a detriment in par (d) is clearly a wide one, capable of including the provision of a service, which is the principal circumstance leading to a charge under par (c) or (d) of s 409(1), I think the concession made by counsel for the respondent that the definition of "person" in s 1(1) could not apply, was well made.
50 I reach that view because I think the intention of these paragraphs of s 409(1) is to encompass any benefit or detriment, whether the value is quantifiable in pecuniary terms or not and whether or not the benefit or detriment would amount to property, even as a thing in action, which is capable of being the subject of ownership. To my mind, the provision of a service would be a classic example. Hence it is the case, I think, that in s 409(1)(c) and s 409(1)(d), the word "person" from whom the benefit is gained or to whom the detriment is caused, need not necessarily be a word used with reference to property. Because that is not necessarily so, in my view the definition of "person" in s 1(1) will not apply, even though it may be that upon the facts of a particular case (as in this case) the benefit or detriment received would be "property" as defined.
51 That view causes me to resort to the Interpretation Act 1984 (WA), s 5, which provides that, "In this Act and every other written law" the word:
" 'Person' or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporate;"
52 Of course, the Interpretation Act post-dates the Code and the definition of "person" contained therein. Section 77(1) of the Interpretation Act 1984 repealed the Interpretation Act 1918. It matters not because by s 3(1) it is provided:
"3. Application
(1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law —
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- (a) express provision is made to the contrary;
(b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application."
53 No express provision is made in the Criminal Code that the definition of "person" in s 5 of the Interpretation Act shall not apply to the Code, nor is there anything in the subject or context of s 409 of the Code which, in my opinion, would be inconsistent with the application of the Interpretation Act. In particular the fact that the word "person" is only defined "when used with reference to "property" and is not defined generally where that is not the case, makes it clear, I think, that there is no impediment in terms of s 3(1) of the Interpretation Act to the application of the definition of "person" contained in s 5 of that Act when construing the relevant provisions of s 409 of the Code. It is abundantly clear that if the definition of "person" in s 5 of the Interpretation Act is applied, the word "person" used in s 409(1)(c) of the Code would include a corporation like Red Rock Holdings Pty Ltd.
54 It was for those reasons that I joined in the order dismissing the appeal.
55 EM HEENAN J: At the conclusion of the hearing of this appeal against conviction I joined in the making of an order of the court that the appeal be dismissed. These are now my reasons for that decision.
56 The details of the charge of an offence under s 409(1)(c) of the Criminal Code (WA) of which the appellant was convicted, the background facts and the arguments presented on this appeal are fully set out in the reasons for decision of the Chief Justice and need not be stated again.
57 The single issue upon which the appeal depends is whether or not, on a charge for an offence against s 409(1)(c) of the Code, the accused may be convicted where it is proved that, with intent to defraud, by deceit or any fraudulent means, he gained a benefit pecuniary or otherwise for a corporation. Put another way, the question is whether or not the term "for any person" in subs 409(1)(c) includes a corporation or is confined to a natural person.
(Page 17)
58 In argument, the submissions of the appellant and the submissions for the State were that the definition of "person" contained in s 1 of the Criminal Code was insufficient, of itself, to include a corporation within the definition of "person" in subs 409(1)(c) apparently because, in that subsection, unlike in subs 409(1)(a) and (b), the offence established is defined without reference to property. The submissions for the State were that a corporation is effectively included in the subsection by operation of the definition contained in s 5 of the Interpretation Act which applies. The appellant submits that the definition in s 5 of the Interpretation Act does not apply because it is inconsistent with s 409(1) and the definition of "property" in s 1 of the Code taken together. Counsel for the appellant submitted that these latter provisions reveal, that at least in s 409(1), there is a distinction made between offences defined with reference to property and those which are not. Included in the latter category, according to the appellant's submission, are the offences established under subs 409(1)(c), (d), (e) and (f).
59 I agree, with respect, with the conclusion of the Chief Justice, that the cheque payable to Red Rock was itself a benefit to Red Rock obtained by fraudulent means and that the offence charged was complete when that cheque was obtained. I also agree that while "benefit" is a term of wider import than property, it includes obtaining a benefit by deception such as the cheque in this case which was fraudulently made out to a party who was not entitled to it but who obtained it. I further agree that both the cheque and its proceeds constitute "property" which had been gained by the appellant by fraudulent means. As alleged in this case, the appellant also gained a benefit by obtaining property [namely the cheque or its proceeds] for Red Rock. In other words the benefit obtained in this case was both pecuniary and proprietary.
60 In the way in which counsel for the appellant put his submissions I do not consider that that distinction is determinative of the result in this case. While the offence established under subs 409(1)(c) can include obtaining a benefit of a proprietary nature including an item of property such as the cheque in this case, that does not mean that the term "person" in subs 409(1)(c) is used with reference to property so as to render the definition of "person" as including a corporation in s 1 of the Code, applicable. The Code definition of "person" as including a corporation does, in my view, result in a corporation being included in the definition of "person" in subs 409(1)(a) and (b) but for the other subs (1)(c), (d), (e) and (f), that result is achieved by the application of the definition of "person" of s 5 of the Interpretation Act, unless that is excluded by the express or implied provisions of the Code (see Interpretation Act s 3(1)).
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61 I also agree that the decisions of this Court in G J Coles & Coy Ltd v Goldsworthy [1985] WAR 183 and Geraldton Fishermen's Co-operative v Munro [1963] WAR 129, following Grain Sorghum Marketing Board v Supastock Pty Ltd [1964] Qd R 98 mean that the definition of "person" set out in s 5 of the Interpretation Act applies to the provisions of the Code in the absence of express or implied provision to the contrary. The contrary position, as alluded to by Burt CJ in G J Coles & Coy Ltd v Goldsworthy (supra) at 186 would be that, except as applied by the definition of person in s 1 of the Code, references in the Code to a person do not include a corporation. That approach was rejected by Burt CJ, Brinsden and Smith JJ in G J Coles & Coy Ltd v Goldsworthy where the Interpretation Act definition of "person" contained in s 5 was treated as being of general application to Code provisions. Burt CJ observed (at 186) that this approach seemed to create problems which had not yet been worked out in relation to those parts of the Code dealing with criminal responsibility. No such problem arises in the present case.
62 The remaining issue, therefore, is whether there is any express or implied provision in the Code which excludes the operation of the Interpretation Act definition of "person", to the use of that term in s 490(1)(c).
63 The submission for the appellant was that because the definition of "person" in s 1 of the Code provided that it extended to include a "corporation" when that term was used in the Code with reference to property, it followed that the definition did not so extend in other instances. However, it is possible to accept that submission, depending upon the context and use of the word "person" in the various situations in which it is employed in the Code, without in any way entrenching upon the application of the definition of "person" as contained in s 5 of the Interpretation Act. There is the authority of G J Coles & Coy Ltd v Goldsworthy (supra) and the cases therein cited for the general application of the definition of "person" contained in s 5 of the Interpretation Act to the Code and there is no reason to limit that, as the appellant's argument necessarily implies, to exclude situations where the definition of "person" as including a corporation contained in s 1 of the Code, does not itself apply. The two definitions of "person", contained respectively in the Code and in the Interpretation Act, appear to have simultaneous application without conflict, in this instance where they are complementary. I see no reason to conclude that there is any provision in s 401 of the Code, which excludes the application of the definition of the word "person" set out in s 5 of the Interpretation Act. It follows that, in my view, the word "person", included in s 409(1)(c) extends to include a
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- corporation and that, consequently, the appellant's single ground of appeal cannot be accepted. It was for these reasons that I agreed that this appeal should be dismissed.
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