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S a J v The Queen

S a J v The Queen

Case [2012] VSCA 243 4 October 2012

Criminal Liability

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0136

S A J	Applicant
	V
THE QUEEN	Respondent

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JUDGES	NETTLE, WEINBERG JJA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 August 2012
DATE OF JUDGMENT	4 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 243
JUDGMENT APPEALED FROM	R v [SAJ] (Ruling No 1) [2012] VSC 244T (Whelan J)

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CRIMINAL LAW — Application for leave to appeal against interlocutory decision — Applicant charged with three counts of using position as a director dishonestly with intention of gaining advantage for someone else, contrary to s 184(2)(a) of the Corporations Act 2001 (Cth) —Whether objective test in Peters v The Queen (1998) 192 CLR 493 sets out relevant standard of dishonesty — Alternatively whether combined objective and subjective test in Ghosh [1982] QB 1053 sets out relevant test —Whether ‘dishonestly’ used in ‘ordinary’ or ‘special’ sense — No requirement to prove subjective awareness of dishonesty — Leave to appeal granted — Appeal dismissed — Macleod v The Queen (2003) 214 CLR 230 applied.

STATUTORY INTERPRETATION — Criminal law — Commonwealth offences — Physical and fault elements under Criminal Code — Whether legislative history indicates that ‘dishonestly’ used in a ‘special’ sense — Parliamentary preference for Ghosh test — Whether enactment of Ghosh test in relation to other Commonwealth offences evinces legislative intention that Ghosh apply to s 184(2)(a) — Expressio unius est exclusio alterius — Whether test in Peters capable of applying to fault element under the Criminal Code.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Regan with Mr P Smallwood	Victoria Legal Aid
For the Crown	Dr G J Lyon SC with Mr P J Doyle	Commonwealth Director of Public Prosecutions

NETTLE JA:

In this matter I have had the very considerable advantage of reading in draft the joint reasons for judgment of Weinberg JA and Davies AJA.

As their Honours explain, the essential question is whether the word ‘dishonestly’ in s 184(2) of the Corporations Act 2001 (Cth) imports the objective test of dishonesty adopted by the High Court in Peters v The Queen,[1] and more recently reiterated in McLeod v The Queen,[2] or the two part objective and subjective test adopted by the English Court of Appeal in R v Ghosh.[3]
[1](1998) 192 CLR 493, 504 [18] (Toohey and Gaudron JJ), 527 [79] (McHugh J), 533 [93] (Gummow J) and 555 [145] (Kirby J).
[2](2003) 214 CLR 230, 242 [38] (Gleeson CJ, Gummow and Hayne JJ).
[3][1982] 1 QB 1053, 1064 (Lord Lane CJ, Lloyd and Eastham JJ).

The problem arises because in some other sections of the Corporations Act, in particular ss 1041F(2) and 1041G(2), and in some Chapters of the Criminal Code Act 1995 (Cth), namely, Chapter 4, s 73.9(3); Chapter 7, s 130.3; and Chapter 10: ss 470.2, 471(2), 474.1 and 480.2, it is specifically provided that, for certain defined purposes, ‘dishonest’ means dishonest according to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S a J v The Queen

Details

AGLC: S a J v The Queen [2012] VSCA 243
Case: [2012] VSCA 243
Decision Date: 4 October 2012

CaseChat Overview and Summary

In the case of S a J v The Queen, the applicant, charged with three counts of using their position as a director dishonestly with the intention of gaining an advantage for someone else, sought leave to appeal against an interlocutory decision. The primary legal issue before the court was the standard of dishonesty required to prove the offence under section 184(2)(a) of the Corporations Act 2001 (Cth). Specifically, the applicant questioned whether the objective test set out in Peters v The Queen (1998) 192 CLR 493, or the combined objective and subjective test in Ghosh [1982] QB 1053, should be applied. Additionally, the applicant sought clarification on whether 'dishonestly' was used in an ordinary or special sense and if there was a requirement to prove subjective awareness of dishonesty.

The court examined the legislative history to determine if the term 'dishonestly' was used in a special sense and considered the parliamentary preference for the Ghosh test in other Commonwealth offences. The court found that the enactment of the Ghosh test in relation to other Commonwealth offences indicated a legislative intention that the Ghosh test should apply to section 184(2)(a). The court also ruled that the expressio unius est exclusio alterius principle supported the applicability of the Ghosh test. The court concluded that no requirement to prove subjective awareness of dishonesty was necessary and granted the applicant leave to appeal. However, the appeal was ultimately dismissed.

The court's final orders were that leave to appeal was granted, but the appeal itself was dismissed. The decision confirmed that the Ghosh test applied to the offence under section 184(2)(a) of the Corporations Act 2001 (Cth) and that there was no requirement to prove subjective awareness of dishonesty.

Orders