Millner v Raith

This case concerned an appeal by Thomas George Millner, the informant, against a decision of a Magistrate in the Court of Petty Sessions, Sydney. The respondent, Jacob Lauder Raith, was charged on two informations alleging that he, as a person concerned in the management of Abbco Bread Company Pty. Limited, was guilty of an offence against section 73c of the Defence Act 1903-1941. The alleged offences related to the company's attempt to supply bread to the Commonwealth for use by the Defence Force that was less in quantity than specified in the relevant order or contract, occurring on or about 11th June 1940. The Magistrate had dismissed the informations, leading to this appeal by way of case stated to the High Court.

The legal issues before the High Court were whether section 7 of the Crimes Act 1914-1937 applied to an attempt to commit an offence that only became an offence by virtue of the retrospective operation of amendments to the Defence Act, and whether the respondent could be held liable under section 73E of the Defence Act 1903-1941 for an attempt by the company to commit an offence. Specifically, the court had to determine if the Magistrate erred in law by concluding that section 7 of the Crimes Act did not have retrospective effect in relation to the charges.

The High Court, in separate judgments, addressed the retrospective operation of the Defence Act and the scope of section 7 of the Crimes Act. It was held that section 2 of the Defence Act 1941, which provided that certain amendments, including those to section 73c and the insertion of section 73E, were to be deemed to have come into operation on 3rd September 1939, meant that conduct occurring after that date could constitute an offence. Consequently, section 7 of the Crimes Act, which criminalises attempts to commit any offence against Commonwealth law, whether passed before or after its commencement, could apply to attempts made after 3rd September 1939, even if the amending legislation was formally assented to later. However, a majority of the Court found that the informations as laid did not properly charge the respondent with an attempt to commit an offence under section 7 of the Crimes Act, but rather alleged his liability as a person concerned in the management of a company that had attempted to commit an offence.

The Court concluded that while the Magistrate's reasoning regarding the retrospective effect of section 7 of the Crimes Act was erroneous, his decision to dismiss the informations might be sustainable on other grounds. The question stated was answered in the negative, and the matter was remitted to the Magistrate to proceed as appeared just, with the possibility of allowing the prosecution to amend the charges to reflect an attempt by the respondent himself to commit the offence.