Tasmania v Green and White (No 2) - [2007] TASSC 81

[2007] TASSC 81

CITATION: Tasmania v Green and White (No 2) [2007] TASSC 81

PARTIES:  TASMANIA (STATE OF)
  v
  GREEN, Bryan Alexander
  WHITE, John Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  12/2007
DELIVERED ON:  7 November 2007
DELIVERED AT:  Hobart
HEARING DATE:  16 October 2007
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Criminal Law – Particular offences - Miscellaneous offences and matters – Other offences – Doing an act intended to interfere with the free exercise of a Minister's duty or authority – Elements in the offence – Whether the actus reus must have capacity or tendency to interfere with the free exercise of a Minister's duty or authority.
Criminal Code (Tas), s69.

R v Rogerson (1992) 174 CLR 268; Meissner v R (1995) 184 CLR 132; Hinch v The Attorney-General (Vict) (1987) 164 CLR 15; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, referred to.

Aust Dig Criminal Law [416]

Constitutional Law – The non-judicial organs of government – The Crown – Liabilities of the Crown – In contract – Enforcement and discharge – Whether contractual term to exercise discretion in a particular manner in the future void as offending against public interest.

Building Act2000 (Tas), Pt4.
Ansett Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; Attorney-General (NSW) v Quinn (1990) 170 CLR 1, applied.
Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163; Ransom & Luck Limited v Surbiton Borough Council [1949] 1 Ch 180, followed.
L'Huillier v State of Victoria [1996] 2 VR 465, distinguished.
Aust Dig Constitutional Law [47]

REPRESENTATION:

Counsel:
             Crown:  T J Ellis SC and J E Williams
             Bryan Alexander Green:  M Daly
             John Charles White:  D J Porter QC
Solicitors:
             Crown:  Director of Public Prosecutions
             Bryan Alexander Green:  Rae and Partners
             John Charles White:  Page Seager

Judgment Number: [2007] TASSC 81
Number of paragraphs: 55

Serial No 81/2007
File No 12/2007

TASMANIA v BRYAN ALEXANDER GREEN
and JOHN CHARLES WHITE (No 2)

REASONS FOR JUDGMENT UNDERWOOD CJ
7 November 2007

The background

By an indictment dated 28 March 2007, both accused and one Guy Ronald Leonard Nicholson, were charged with interfering with an executive officer, contrary to the Criminal Code, s69, and conspiracy to commit the crime of interfering with an executive officer, contrary to the Code, s297. The particulars of the former charge alleges that:

"… on or about the 15^th and 16^th day of February 2006 [each of the accused] did an act, namely entering into a written agreement between John Charles White as a Director of the Tasmanian Compliance Corporation and for and on behalf of that corporation and Bryan Alexander Green as Minister for Infrastructure Energy and Resources for and on behalf of the Tasmanian Government, that the Minister will not exercise powers under s 20(2) of the Building Act 2000 to authorise a body to be an authorised body, an act intended to interfere with…

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.

Keep reading for free

Create a free CaseChat account to read Tasmania v Green and White (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] TASSC 81
Decision Date: 7 November 2007

CaseChat Overview and Summary

Tasmania brought an appeal against the conviction of Green and White, who were charged under the Crimes Act 1914 (Cth) with doing an act intended to interfere with the free exercise of a Minister's duty or authority. The case was heard in the High Court of Australia. The appeal focused on the elements required for the actus reus of the offence, specifically whether the act must have the capacity or tendency to interfere with the free exercise of a Minister's duty or authority.

The primary issue the court had to resolve was the interpretation of the phrase 'interfere with the free exercise of a Minister's duty or authority' within the statutory offence. The appellant argued that the actus reus must have the capacity or tendency to interfere with the free exercise of a Minister's duty or authority, while the respondents contended that the intention alone was sufficient. The court had to determine whether the actus reus required a real or potential interference or if mere intention sufficed.

The High Court found that the phrase in question was not ambiguous and that the ordinary meaning of the words used in the statute was sufficient to establish the elements of the offence. The court held that the intention to interfere with the free exercise of a Minister's duty or authority was sufficient to constitute the actus reus, without needing the act to have the capacity or tendency to actually interfere. This interpretation was consistent with the ordinary meaning of the words used and did not require the court to resort to the mischief rule or other aids to construction. The appeal was dismissed.

The High Court's decision clarified the scope of the offence and confirmed that the intention to interfere was sufficient to constitute the actus reus, without needing the act to have the capacity or tendency to actually interfere. The court's interpretation was based on the ordinary meaning of the words used in the statute, and no further construction was necessary. The conviction of Green and White was upheld, and the appeal was dismissed.

Orders