Shaun Clough v Leanne Marie Rosevear No. Scgrg-97-349 Judgment No. 6216 Number of Pages 8 Professions and Trades (1997) 69 Sasr 67

[1997] SASC 6216

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN, J

Professions and trades - medical and related professions - other fields of practice - nurses - respondent charged with holding herself out to be a general nurse whilst not registered on the Nurses Register - respondent forgot to re-register - magistrate dismissed the charge on the ground that the appellant had not excluded honest and reasonable belief on the part of the respondent. Held that s22(1) of the Nurses Act 1984 created an offence of strict responsibility. Sherras v De Rutzen [1895] 1 QB 918; He Kaw Teh v The Queen (1985) 157 CLR 523; Police v Pfeifer Full Court (1997) 68 SASR 285; Steel v Mortlock [1971] SASR 289, discussed.

Held further that there was no basis for the defence of honest and reasonable belief because the respondent did not turn her mind to the matter of re-registration and so did not form a positive belief in the matter. Proudman v Dayman (1941) 67 CLR 536, discussed.

ADELAIDE, 16 April 1997 (hearing), 24 June 1997 (decision)

#DATE 24:6:1997

Appearances:

Appellant:

Counsel: Mr M Stevens

Solicitors: Crown Solicitor (SA)

Respondent:

Counsel: Mr C Kourakis

Solicitors: Duncan And Hannon

Order: appeal allowed.

DUGGAN J

The respondent was charged on a complaint which alleged that she had held herself out as a general nurse, whilst not being registered on the Nurses Register contrary to the Nurses Act 1984s22(1). The particulars of the offence are set out in the complaint as follows: "(1) The defendant practised as a general nurse at the Flinders Medical Centre, Bedford Park in the said State from 1 December, 1995 and continued to practise until 26 August, 1996 and thereafter.

(2) The defendant's name was removed from the Nurses Register on her failure to pay the practice fee on 1 December, 1995 pursuant to section 33(2) of the Nurses Act, 1984.

(3) The defendant's name was re-instated on the Nurses Register on 26 August, 1996 pursuant to section 28 of the Nurses Act, 1984." The respondent was acquitted of the charge and the appellant now appeals against the finding by the learned magistrate that the offence had not been proved. Mr Stevens, for the appellant, seeks an order setting aside the order for dismissal, but he does not ask for a finding of guilty to be substituted; nor does he seek to have the matter re-tried.

It is not in dispute that the respondent has qualified for registration as a general nurse and that she was registered as such until 1st December 1995. However she did not pay the prescribed practice fee as required by s33(1) of the Act when it was due on 1st December 1995. Her name was thereupon removed from the Nurses Register. She then practised as a general nurse from 5th March 1996 to 26th August 1996 when her name was re-instated on the Register. It is also an agreed fact that the respondent did not know her registration had lapsed and that she was practising whilst unregistered for the relevant period.

The learned magistrate proceeded on the basis that the offence was one of strict liability and that the prosecution was required to rebut the "defence" of honest and reasonable mistake of fact. He held that evidence given by the respondent raised the issue of honest and reasonable mistake and concluded that the existence of such a mistake had not been disproved by the prosecution. In fact he went further and found that it had been established positively by the respondent.

The appellant challenges these findings on appeal. The respondent has cross-appealed and challenges the conclusion reached by the magistrate that the offence created by s22 of the Act is one of strict liability. According to the respondent's argument it was necessary for the prosecution to prove mens rea as an element of this offence. This, so it was argued, would necessitate proof that the "holding out" took place in circumstances such that the respondent either knew she was not registered or was reckless as to that fact.

It is convenient to deal first with the issue raised on the cross-appeal. Section 22(1) of the Act provides as follows: "No person shall hold himself out or permit another person to hold him out as a general nurse, a psychiatric nurse, a mental deficiency nurse or a midwife unless he is registered on the nurses register, the psychiatric nurses register, the mental deficiency nurses register or the midwives register (as the case may require).

Penalty: Five thousand dollars or imprisonment for six months." In identifying the elements of an offence created by statute it is important to have regard to the well known principle which was stated in Sherras v De Rutzen [1895] 1 QB 918 at 921:

"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered." This principle is not easy to apply, a factor which helps to explain "the bewildering diversity of judicial opinion expressed generally on the subject of guilty knowledge over the past century". (He Kaw Teh v The Queen (1985) 157 CLR 523 per Wilson J at 549). Part of this difficulty might be explained by the differing emphases which have been given from time to time to the principle of construction under discussion. After commenting that there had been a tendency to regard it as a weak presumption in cases such as Proudman v Dayman (1941) 67 CLR 536 and Bergin v Stack (1953) 88 CLR 248 at 261, Gibbs CJ in his judgment in He Kaw Teh (supra at 528) noted that it had been reaffirmed more recently in Lim Chin Aik v The Queen [1963] AC 160 at p173; Reg v Warner [1969] 2 AC 256 at p272; Gammon Ltd v Attorney-General (Hong Kong) [1985] AC 1 at pp12-13.

In the same case Brennan J stressed the relevance and importance of the presumption in the following passage (p565):

"The requirement of mens rea avoids what Lord Reid called 'the public scandal of convicting on a serious charge persons who are in no way blameworthy': Sweet v Parsley [1970] AC 132 at p150. Nowadays, a presumption is made that mens rea is an element in a statutory offence though the offence is defined only by reference to its external elements."

After referring to the passage from Sherras v De Rutzen which is quoted above his Honour continued: "That statement has not been doubted. I would respectfully agree with Lord Goddard C.J. who said in Brend v Wood (1946) 62 TLR 462 at p463:

'It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.'

That passage has been referred to with approval by the majority of the Supreme Court of Canada in Beaver v The Queen [1957] SCR 531 at pp537-538; by Lord Reid and by Lord Morris of Borth-y-Gest in Reg. v Warner [1969] 2 AC 256 at pp275-294; by Lord Morris in Sweet v Parsley [1970] AC at p152 and by the Judicial Committee in an Indian appeal mentioned in Lim Chin Aik v. The Queen [1963] AC 160 at p173. It is now firmly established that mens rea is an essential element in every statutory offence unless, having regard to the language of the statute and to its subject-matter, it is excluded expressly or by necessary implication: Lim Chin Aik [1963] AC at p173; Sweet v Parsley [1970] AC at pp149, 152, 156; Cameron v Holt (1980) 142 CLR 342, at pp346, 348. Earlier doubts as to the existence of the presumption or as to its strength (see, e.g., Proudman v Dayman (1941) 67 CLR 536 at p540) have now been removed." The task of deciding whether the presumption of guilty intent is rebutted in a particular case is one of construction. It becomes necessary to have regard to "the terms of the statute, the subject matter dealt with, the consequences of adopting alternative views and the purpose that Parliament might have had in taking the latter approach". (Police v Pfeifer (1997) 68 SASR 253). I should also mention that I adopt the approach taken by Doyle CJ in the following passage in his judgment in Police v Pfeifer: "I express the matter in terms of the rebutting of a presumption, even though the issue in this case is whether what must be proved is intent or knowledge on the one hand or absence of an honest and reasonable belief on the other hand.

I do so because it may be that the presumption is in favour of intent or knowledge in particular, as distinct from some state of mind such as absence of honest reasonable belief. In that respect, what their Honours said in He Kaw Teh v The Queen (1985) 157 CLR 523 is not decisive: cf Gibbs CJ at 528-529 and 534, Brennan J at 565-567 and 576, Dawson J at 590-593. It is clear that whether one is concerned with admitting a presumption or simply identifying the relevant state of mind, the matters to be considered are the same: Brennan J at 576.

Because the position is unclear, I proceed on the basis that the rebuttal of a presumption in favour of intent or knowledge as elements of the offence is in issue."

The Nurses Act is described in the preamble as:

"An Act to provide for the registration and enrolment of nurses; to regulate nursing for the purpose of maintaining high standards of competence and conduct by nurses in South Australia; to repeal the Nurses Registration Act 1920; and for other purposes."

It provides for a nurses board, registration procedures and the apparatus for enquiring into incompetent or unprofessional conduct.

Section 22 does not contain words such as "knowingly" or "wilfully" which would indicate a requirement of intentional conduct. (cf Steel v Mortlock [1971] SASR 289 where Walters J decided that a provision making it an offence for anyone to "hold himself out as a land agent unless he is a licenced land agent" did not require mens rea.) The absence of such words is not decisive, although it becomes more significant if other offences in the same Act are defined in such a way as to put the requirement of mens rea beyond doubt. In the present case there is some relevance in the fact that it is an offence if, at a hearing, a person "wilfully insults the Board" (s16(3)(c)) and s51 states that "a person who by fraud or any other dishonest means procures his registration or enrolment" commits an offence.

The prescribed penalty is a relevant consideration. Section 22(1) encompasses a wide range of conduct extending from a failure to re-register to quite serious breaches involving falsely pretending that a person is qualified by training to perform duties as a nurse. However I think it is arguable that the penalty of imprisonment does not necessarily indicate that guilty intent is an element of the offence. It may well be that the higher penalty range was intended for conduct which is of an intentional and fraudulent nature, albeit that such an intention is not an element of the offence.

In my view the subject matter of the legislation is of particular relevance to the task of construction in this case. The Act is regulatory in nature. It provides a system of registration for nurses, a matter which is of considerable importance to the safe and orderly provision of medical services to the community. In this respect it is appropriate to bear in mind the view of Dawson J in He Kew Teh (supra at 599) that:

"Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders." The requirement to register or re-register with an official body in order to obtain or retain the right to perform a particular function in the community is, of its nature, the responsibility of the person desiring registration. I agree with the argument that a requirement to prove knowledge of a failure to re-register in a case such as the present would make successful prosecution very difficult in many cases, the relevant facts being peculiarly within the knowledge of the defendant. It would be far more likely that the legislature intended the Proudman v Dayman defence to avoid injustice in appropriate cases. Viewed in this light the consequence of creating an offence such as this is not to visit punishment on luckless offenders. Some sanction should be available against those who practise a calling or profession without obtaining or renewing registration, even if the circumstances arise from forgetfulness.

After considering the above matters I have reached the conclusion that the presumption that intention or knowledge is required in the creation of a statutory offence is rebutted in the present case and the offence is one of strict liability.

There remains the question as to whether the defence of honest or reasonable belief was raised in an evidential sense and, if so, whether it was disproved by the appellant. The learned magistrate dealt with this issue in the following passage of his reasons: "She [the respondent] impressed me as a witness of truth and convinced me that she knew full well the implications of not ensuring that she was properly registered. In advancing a reasonable excuse, she gave evidence of a move from a previous address to her current address in relation to which she had arranged for the forwarding on of her post. Clearly that was not done and she did not receive her renewal of registration.

She gave evidence that she was extremely distressed by a housebreak in October 1995 in which some $22,000.00 worth of property had been stolen. I accept that she was stressed.

She gave evidence that she had been employed at the Flinders Medical Centre for some five years. She gave evidence of a practice existing at that hospital whereby when a nurse received her registration renewal, she was obliged to show the same to her superior and then upon paying the required fee, show her superior the new practising certificate.

I accept her evidence in this case that her supervisor did not until approximately 24 August ask to see the renewal of her practising certificate. I accept she had not been asked to produce her renewal application. Her evidence indicates to me that she took the issue very seriously not only at this time but her prior practice was one that should have ensured that the omission which occurred did not occur.

Within a half hour of ascertaining that she was unable to locate her practising certificate and being told she was not registered, she attended at the Nurses Registration Board. She subsequently paid a $100.00 fee relating to the renewal of her registration and a $50.00 fee by way of a penalty.

It would seem that the primary cause for this omission on her part resulted from mail not being forwarded to her and a subsequent omission on the part of her employer to follow its usual practice of requesting to see her renewal application form.

I accept her evidence that she knew full well when her certificate would expire and had it not been for the stress caused to her by the break-in, that she would have given thought to the fact that her renewal had not arrived. In view of the usual procedure that had been adopted in the previous years, I accept her evidence on the point that she believes that her employer, the hospital, should also have been aware of the fact that her registration was due for renewal but failed to bring the matter to her attention.

The issue that I am therefore left to determine is whether her mistaken belief was reasonable. Given the circumstances of this particular case, I find that it was reasonable. I would be most surprised if the legislature in providing for a penalty of up to six months imprisonment did not intend that there be some element of recklessness in the behaviour, in the omission of a nurse to become registered.

Mere inadvertence would be sufficient to have the offence proven against the accused, but in the circumstances, given the totality of the evidence before me, I find that her mistaken belief was honest and reasonable and that she is therefore not guilty." The principle referred to by the learned magistrate was recognised by Cave J in R v Tolson (1989) 23 QBD 168 at 181 when he stated:

"At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence." The principle was discussed in the leading case of Proudman v Dayman (1941) 67 CLR
536. A proper consideration of the issue, when raised, involves ascertaining

whether the defendant had a belief, the nature of any such belief, whether the facts as the defendant believed them to be would, if true, take the act outside the operation of the enactment and, finally, whether there were reasonable grounds for the belief.

It is true that on some occasions in her evidence the respondent referred to her belief in being registered, but, properly understood, her evidence was that she did not think about the matter at all. In examination-in-chief she gave the following evidence: "Q Upon what basis did you think you were registered?

A I always thought I was registered, it's an important document, it's a licensed practice and I'm always registered.

Q Prior to being advised by Ms Hands, what was your belief as to your status of registration?

A That I was registered.

. . . .

Q Can you give any reasons as to why you were mistaken as to thinking that you were registered?

A I honestly believed that I was registered at that time, and I feel that I made the mistake, due to the break-in." The respondent said that her house was broken into in October 1995. She said she returned to work after the break-in and she was cross-examined as to what then transpired: "Q So upon your return to work, you didn't think more about your registration?

A No, I did not.

Q Even though that the system is, every year, around that time, you have to send in your money?

A Yes.

Q And sight it to your nurse manager?

A Yes.

Q So you continued to work in intensive care, would that be right?

A Yes.

Q And for some nine months?

A Yes.

Q You never directed your mind to the fact that you were not registered?

A No, I honestly believe at that time I was.

. . . .

Q You are saying that your stress at that time would account for your not turning your mind to the registration?

A Yes." In the light of the respondent's version of events it is pertinent to note Dixon J's observation in Proudman v Dayman (supra at 541) that it was doubtful whether the defendant in that case "thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence".

The effect of the respondent's evidence before the learned magistrate was that she did not turn her mind to the renewal of her registration because the relevant papers had not been forwarded on to her from her previous address, the administration had not asked to see her certificate as was the practice and because of the trauma of the burglary. No doubt if she had turned her mind to the matter it would have occurred to her that she was not registered. In other words the court was not presented with evidence of a belief in a set of circumstances which, if true, would lead to the result that no offence had been committed. In the circumstances of the present case the issue would arise if the respondent thought, on reasonable grounds, that she had renewed her registration. The matter which the magistrate thought reasonable was the fact that she forgot. This is not a case of a belief as to a positive set of facts: it is an explanation as to why she did not think about the matter at all.

I am of the view, therefore, that the learned magistrate erred by basing the finding of not guilty on the Proudman v Dayman defence.

For these reasons the appeal will be allowed and the dismissal of the charge by the magistrate set aside.