Peden v Boxx
[2016] ACTSC 86
•10 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Peden v Boxx |
Citation: | [2016] ACTSC 86 |
Hearing Dates: | 26 August 2015; 28 August 2015 |
DecisionDate: | 10 May 2016 |
Before: | Burns J |
Decision: | See [27]. |
Catchwords: | ELECTORAL ACT – Offences Under the Electoral Act 1992 (ACT) – not making a claim for enrolment after becoming entitled – appeal from the Magistrates Court – whether the appellant was found guilty of an offence not known to law – omission of the words “without reasonable excuse” on the charge – whether this results in the charge being defective – appeal upheld – charge dismissed as not alleging any offence known to law. |
Legislation Cited: | Aboriginals Ordinance 1918-1947 (NT) Companies (New South Wales) Code (NSW) s 375 Road Transport (General) Act 1999 (ACT) s 72(1) |
Cases Cited: | Barritt v Baker [1948] VLR 491 Dickson v Irwin (Unpublished, Full Court of the Supreme Court of the ACT, Murrell CJ, Refshauge and Wigney JJ, 4 November 2015) Woolmington v Director of Public Prosecutions [1935] AC 462 |
Parties: | Aaron Glen Peden (Appellant) Caleb Boxx (Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Mr T Buckingham (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 30 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 21 May 2015 Case Title: Boxx v Peden Court File Number: CC14/09142 |
BURNS J:
The appellant was charged by summons with one offence contrary to s 73(1) of the Electoral Act 1992 (ACT) (the Act) alleging that on 12 September 2014 he, being a person who was entitled to be enrolled for an electorate and was not enrolled on any roll, did not make a claim for enrolment within 21 days after he became so entitled. This is a summary offence, carrying a maximum penalty of one half of a penalty unit.
He entered a plea of not guilty to the charge and it proceeded to hearing in the Magistrates Court. On 17 March 2015, a magistrate found the offence proved, but dismissed the charge without recording a conviction pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT). By an Amended Notice of Appeal dated 26 August 2015 the appellant appeals from the finding of the Magistrate that the offence was proved on the grounds:
(a)her Honour erred in finding the appellant guilty of an offence not known to law;
(b)further, and in the alternative, her Honour erred in finding there was evidence capable of satisfying the charge beyond reasonable doubt;
(c)further, and in the alternative, her Honour erred in admitting into evidence, a certificate pursuant to s 72(1)(a) of the Road Transport (General) Act 1999 (ACT); and
(d)further, and in the alternative, her Honour erred in admitting into evidence, a letter from the ACT Electoral Commission Officers of the ACT Legislative Assembly.
The appellant seeks orders:
(a)that the appeal be upheld;
(b)the orders imposed by the Magistrate be quashed and set aside;
(c)a verdict of not guilty be entered in respect of the charge; and
(d)the respondent pay the appellant’s costs of this appeal and the proceedings in the ACT Magistrates Court.
After I reserved my decision in this appeal on 28 August 2015, I became aware of the fact that applications were on foot in other appeals from the Magistrates Court, in which the prosecution were submitting that the Magistrates Court Act 1930 (ACT) did not provide for an appeal from a finding of guilt, or the imposition of a non-conviction order. Two cases involving this issue had been referred to the Full Court by a single judge of this Court. Whilst this issue was not addressed by the parties in the hearing of the present appeal, I considered it appropriate to await the decision of the Full Court as the present appeal was one from a finding of guilt and where no formal conviction had been recorded. The matter of Dickson v Irwin (Unpublished, Full Court of the Supreme Court of the ACT, Murrell CJ, Refshauge and Wigney JJ, 4 November 2015) came before the Full Court in November 2015, and was then remitted to be heard by a single judge based upon the concession by the prosecution that the appeal in that matter was competent. In the second matter, Parkinson v Alexander [2016] ACTSCFC 1, the Full Court determined on 15 April 2016 that a “finding by the Magistrates Court that an offence has been proved (a finding of guilt) is a “conviction” for the purposes of s 208(1)(b) of the [Magistrates Court Act 1930 (ACT)]”, and as such an appeal lies from such a finding.
I am satisfied that the appeal must be upheld on the first ground, being that the offence alleged by the prosecution was not one known to law. It is unnecessary for me to consider the remaining grounds.
The Form of the Charge
The charge against the appellant alleged an offence contrary to s 73(1) of the Act. This section provides:
73Compulsory enrolment etc – residents
(1)A person who –
(a)is not entitled to be enrolled for an electorate; and
(b)is not enrolled on any roll;
shall, subject to subsection (5), make a claim for enrolment within 21 days after the day the person became so entitled.
...
(6)A person who, without reasonable excuse, contravenes subsection (1), (2) or (3) commits an offence.
Maximum penalty: 0.5 penalty units.
The charge which was proffered by the prosecution in the Magistrates Court did not allege that the offence committed by the appellant was committed “without reasonable excuse”. The appellant submits that the omission of the words “without reasonable excuse” results in the charge being defective. For the reasons that follow, I agree with that submission.
The starting point is to consider the nature of an offence created by s 73, particularly where it alleges a breach of s 73(1). The respondent submitted that it was not an element of the offence that the prosecution was required to prove that the offence was committed without reasonable excuse. The argument presented by the respondent may be summarised as follows:
(a)The purpose of an information is to identify, with sufficient particularly, the essential ingredients of an offence; an information that fails to identify these things is invalid. A valid information “grounds” the proceedings.
(b)The offence charged provides a “reasonable excuse” exception to criminal responsibility. The applied provisions of the Criminal Code 2002 (ACT) (the Code) provide that a defendant carries an evidential burden of adducing or pointing to evidence that raises a “reasonable excuse”, and the prosecution carries the ultimate legal burden of disproving a “reasonable excuse” beyond reasonable doubt. The prosecution is not required to prove the absence of a reasonable excuse from the outset.
(c)The prosecution’s legal burden in relation to disproving “reasonable excuse” therefore does not arise unless and until the defendant has discharged his evidential burden. This will ordinarily occur at the hearing of an information.
(d)It cannot be said that the absence of a “reasonable excuse” is an essential element or ingredient of the offence because if the defendant fails to discharge his evidential burden of raising a “reasonable excuse” then the prosecution is not required to prove or disprove anything in relation to the matter as the legal burden simply does not arise.
The first proposition so articulated may be readily accepted, however, it begs the question whether there was a “valid information”, in the sense that it alleged an offence known to law.
The second proposition refers to the following provisions of the Code:
56Legal burden of proof–prosecution
(1)The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.
NoteSee s 11 (Elements) on what elements are relevant to a person’s guilt.
(2)The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.
(3)In this Act:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
58Evidential burden of proof – defence
(1)Subject to section 59 (Legal burden of proof–defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
(2)A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
(3)Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
(4)To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence.
(5)The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
(6)The question whether an evidential burden has been discharged is a question of law.
(7)In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
In his written submissions, the respondent accepted that the “ultimate legal burden of proof” that the offence was committed without reasonable excuse falls on the prosecution. However, the respondent submitted that this is only after the appellant satisfies the evidentiary burden imposed by s 58 to present or point to evidence that suggests that there may have been a reasonable excuse for the actions of the appellant that are alleged to constitute the offence. It follows, the respondent submitted, that at the point at which the information alleging an offence contrary to s 73 of the Act against the appellant was laid, proof that the offence was committed “without reasonable excuse” was not and could not be an essential factual ingredient of the charge because the informant was not, at that point in time, required to prove the absence of reasonable excuse.
The appellant referred me to the decision of Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings v WorkCover Authority of New South Wales (2010) 239 CLR 531 as authority for the proposition that it is incumbent on the prosecution to identify in an information all of the essential ingredients of the charged offence, and that failure to do so amounts to a defect. The correctness of this proposition may be readily accepted, but the statement of the proposition does not assist in identifying the “essential ingredients” with respect to a particular offence.
There are few decided cases directly on point. In Barritt v Baker [1948] VLR 491 (Barritt) the defendant was charged with betting in a street. The definition of “street” in the relevant legislation was expressed not to include racecourses. After a hearing in the Court of Petty Sessions, the charge was dismissed on the basis that the prosecution had not proved that the place where the defendant was observed taking bets was not a racecourse. The prosecutor appealed, arguing that the onus fell on the defendant to prove that the place was a racecourse, and the prosecution was not obliged to prove it was not. The informant relied on s 214 of the Justices Act 1928 (Vic) which provided that any exception, proviso, excuse or qualification “may be proved by the defendant, but need not be specified or negatived in the information or complaint.” In discharging the order nisi for review, Fullagar J said:
In the present case the prohibited act is specified (to put it shortly) as “betting in a street”. The place is an essential element in the specification of the offence, and the prosecution must prove not merely the making of a bet but the making of a bet in a street. The word “street” is defined in an “extensive” definition, in which words of exception occur. A place is a street if it is enclosed or unenclosed land other than a race-course. But the prosecution must prove that the place is a street, and the prosecution fails to prove this unless it proves that the place comes within the definition. And it does not prove that the place comes within the definition unless it proves not merely that it was enclosed or unenclosed land, but also that it was not a race-course. As I have said I do not think it was disputed here that the evidence failed to establish that the place was not a race-course within the statutory meaning of that word. And, in my opinion, the justices were right in holding that, unless the evidence established that, the prosecution failed.
It was argued with considerable force that this view in this case reduced the whole question of the application of sec. 214 to a matter of form rather than substance. It was said that the substantial effect of the legislation was to enact that any person who bets on any land other than a race-course should be guilty of an offence, and that, if the legislation had taken that form, it must have been held that betting on a race-course was an exception within the meaning of sec. 214. But it seems to me that the question must often turn on the form of the legislation. The problem is not a problem of formal logic. The Court is not to undertake the task of classification and to decide what is the logical statement of the rule and the logical statement of the exception. Its task is purely and simply one of statutory construction. It has only to say what are the elements which the Legislature has specified as the primâ facie ingredients of the offence. When it has determined, as a matter of construction, what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution. The solution of the logical problem of the classification of things is governed by logical considerations, and logical considerations will determine what is to be stated as a rule and is to be stated as an exception. But the Legislature may formulate its rule or its rule and exception as it pleases. It might, for example, provide that any person who made a bet in a city, town, or borough should be guilty of an offence. Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an offence. The substance might be precisely the same, but it might well be held that sec. 214 applied to the latter case but not to the former. This would be because the essential elements in the specification of the offence are differently stated in each case. Here the Legislature has indicated that what it requires to be proved is the making of a bet in a street. And that is not proved unless evidence is adduced to warrant the conclusion that the place is beyond reasonable doubt a street within the statutory definition. It is immaterial, I think, that the definition involves a negative.
A similar approach was taken by the High Court in Dowling v Bowie (1952) 86 CLR 136 (Dowling), where it was held that the prosecution had an obligation to prove that the defendant sold liquor to a “half-caste” Aboriginal as defined by the Aboriginals Ordinance 1918-1947 (NT) for the purposes of the Licensing Ordinance 1939-1952 (NT), which involved establishing that the person to whom the liquor was sold was not a person deemed not to be a “half-caste” Aboriginal by reason of gazettal of his name.
Both Barritt and Dowling are examples of “definition cases”, where, “Generally, if an exculpatory provision is part of the definition of the grounds of liability, it will be a proviso and the onus will be on the prosecution to prove that the proviso does not apply”: The Queen v Debono [2013] VSC 408, per Kyrou J at [22]. Section 73(1) of the Act is not a provision that contains some form of exception or qualification as part of the definition of the grounds of liability, so that these cases provide limited assistance.
Some more recent cases provide assistance. In Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449, the appellant Ganke was prosecuted for failing to submit a report to the liquidator of the affairs of a company, contrary to s 375 of the Companies (New South Wales) Code (NSW). Section 375(9) provided: “A person who, without reasonable excuse, fails to comply with a provision of this section ... is guilty of an offence.” One of the issues raised in the proceedings was who held the onus of establishing the absence of reasonable excuse in relation to the offence. After referring to Woolmington v Director of Public Prosecutions [1935] AC 462 to the effect that it is the duty of the prosecution to prove the guilt of the accused, Hunt J said, at 455:
But none of those particular applications of the “golden thread” principle assists in relation to statutory exceptions. In each case, it must be a matter of interpretation as to whether a particular statutory provision is intended by the legislature to be an element of the offence (and so to be proved by the Crown), or whether it is intended to be a ground by which criminal liability may be avoided (and so to be proved by the accused). The principles stated in the cases, such as Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, are of assistance in determining the intended nature of such a provision: see also Ex parte Ferguson, Re Alexander (1944) 45 SR (NSW) 64 at 66-67; 62 WN (NSW) 15 at 16 and Ex parte R J Wimborne Pty Ltd; Re Beale (1957) 58 SR (NSW) 353 at 354-357; 75 WN (NSW) 372 at 373-375.
Later, at 456, his Honour said:
In the present case, subs (9) indicates fairly clearly to my mind that the offence is the failure to comply with the obligations imposed by the earlier subsections, but not if it be shown that there was a reasonable excuse for that failure. It is the existence of the reasonable excuse which prevents the failure from becoming an offence, and that excuse must necessarily be comprised of facts which are additional to those which constitute the failure to comply. Added to that particular indicium is the undoubted circumstance that those additional facts will in almost every case (if not indeed in every case) be solely within the knowledge of the director or the officer of the company who is charged.
The appellant has drawn attention to the different legislative style involved in other provisions in the Code such as s 316(11), which specifically provide that a particular matter is a defence to a prosecution. That is certainly a relevant consideration, but in this particular case it does not, in my view, outweigh the considerations to which I have already referred. All of the cases say that what must be construed is the intention of the legislature; the court must say what the legislature intended to be the prima facie ingredients of the offence, and the solution of that question depends upon the ordinary rules of construction: Dowling v Bowie (1952) 86 CLR 136 at 147.
I am satisfied, therefore, that the onus of establishing the existence of the reasonable excuse in subs (9) was intended by the legislature to be placed upon the person charged. That is how the Full Court of South Australia approached the issue in Leydon v Forrest, although it is fair to say that the question of onus does not appear to have been argued in the Full Court as it was before Mitchell J at first instance. I should add that that is an ultimate legal onus which the charged person bears; it is not an evidential onus such as discussed by the High Court in Purkess v Crittenden (1965) 114 CLR 164 at 167–168.
(Emphasis added)
In Rook v Maynard (No. 2) (1994) 3 Tas R 235 the defendant Maynard was charged with offences contrary to s 76B(1)(a) of the Crimes Act 1914 (Cth) (the Crimes Act), which created an offence of “intentionally and without lawful authority” obtaining access to data stored in a Commonwealth computer. Section 15D of the Crimes Act provided that “where under any law of the Commonwealth any act, if done without lawful authority, or without lawful authority or excuse, or without permission, is an offence against that law, the burden of proving that the act was done with lawful authority, or with lawful authority or excuse, or with permission (as the case may be) shall be on the person accused”. A magistrate decided that s 15D did not apply, holding that the word “authority” in s 76B(1) was not to be equated to the expression “lawful authority” in s 15D. The Magistrate dismissed the charges. On review of the decision, Zeeman J determined that the provisions of s 15D did apply, and that the construction attributed to that section by the Magistrate was wrong:
I do not consider that s 15D is to be construed as being limited to provisions in a law of the Commonwealth which in express terms makes it an offence to do an act without lawful authority, without lawful authority or excuse or without permission. Rather, it is to be construed as applying to provisions, no matter how they are framed or what words they employ, which have the effect of proscribing an act done without lawful authority or without lawful authority or excuse, or without permission.
In Henshaw v Mark (1997) 140 FLR 438 (Henshaw), Miles CJ heard an appeal from the Magistrates Court by way of an application to make absolute an order nisi for review of a decision dismissing charges against the defendant under s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The provision under which the defendant was charged made it an offence to, without reasonable excuse, trespass on premises in a Territory. With respect to who held the onus of proving that the trespass was without reasonable excuse, Miles CJ said:
Absence of reasonable excuse is an element of the offence established by the section and the prosecution must prove that element beyond reasonable doubt. The section does not create a general offence of trespass on premises in a Territory to which entry with reasonable excuse is an exception.
Miles CJ went on to conclude that s 15D of the Crimes Act did not apply so as to cast an onus on the defendant, because the term “reasonable excuse” was not one that was found in s 15D. The decision of Miles CJ was upheld on appeal, although the issue of the onus of proof of absence of reasonable excuse was not discussed: Mark v Henshaw (1998) 85 FCR 555.
In the subsequent case of R v Sheehan [2001] 1 Qd R 198, the defendant was convicted of an offence of operating an aircraft in Australian Territory for a prescribed commercial purpose otherwise than as authorised by an Air Operators Certificate. The trial judge ruled that s 15D of the Crimes Act had the effect that the onus fell on the defendant to establish that his actions were authorised by an Air Operators Certificate. On appeal, the Queensland Court of Appeal (McMurdo P, Pincus and Thomas JJA) upheld the trial judge’s ruling.
In the present case, of course, s 15D of the Crimes Act does not apply, as the law under which the appellant was charged was not a Commonwealth law. The provisions of s 58(3) of the Code applied so as to place an evidential burden on the appellant to adduce, or point to, evidence that may constitute a reasonable excuse for failing to comply with s 73(1) of the Act. Once the appellant addresses, or points to, such evidence, the ultimate onus fell upon the prosecution to establish beyond reasonable doubt the absence of a reasonable excuse as identified.
The cases cited above, with the exception of Henshaw, provide limited assistance as they addressed the question whether the relevant statutory provisions imposed a legal onus on the defendant to prove the exception. In the present case the legal onus is on the prosecution, with s 58 of the Code only imposing an evidentiary burden on the appellant.
In my opinion, the present case is effectively indistinguishable from that in Henshaw. Section 73 creates a general offence of (for present purposes) not enrolling to vote without reasonable excuse. It may be accepted that the defendant will have peculiar knowledge of any circumstances that may constitute a reasonable excuse for not enrolling to vote, and that any such circumstances will not usually be known to the prosecution, but the same may be said with the respect to offences alleged under s 11 of the Public Order (Protection of Persons and Property) Act1971 (Cth). A requirement that the words “without reasonable excuse” be pleaded as part of a valid charge for an alleged offence against s 73 of the Act does not mean that the onus falls on the prosecution to negative all possible or theoretical reasonable excuses. Where the defendant adduces or identifies evidence that is capable of constituting a reasonable excuse for a contravention of s 73, the onus falls on the prosecution to prove beyond a reasonable doubt that such facts or circumstances adduced or identified by the defendant did not exist, or that, if they did, they do not amount to a reasonable excuse.
I am satisfied that the absence of reasonable excuse is an element of the offence created by s 73 of the Act, and the failure of the informant to plead that element resulted in a charge not known to law. To adopt the prosecution submission that proof of absence of a reasonable excuse only becomes an element of the charge where the defendant has discharged the evidentiary onus cast on him by s 58(3) of the Code; would be to create an anomalous situation where the elements of the offence change in the course of the trial. The better view, in my opinion, based on the structure of s 73 of the Act, is that the absence of reasonable excuse is an element of the offence under s 73, but one which the prosecution will have proven in the absence of the defendant adducing or identifying evidence capable of amounting to a reasonable excuse.
The submission that Henshaw can be distinguished because it was decided before the commencement of the Code cannot be accepted. The effect of s 58(2) of the Code is simply a statutory reflection of the approach taken by Miles CJ.
The appeal will be upheld, and the finding of guilt and other orders made by the Magistrate will be set aside; in lieu, the charge will be dismissed as not alleging any offence known to the law. Unless either party seeks a different order within 14 days, the respondent is to pay the appellant’s costs of the appeal and the proceedings in the Magistrates Court.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: D Scuteri Date: 10 May 2016 |
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