Thomas v Parriman - [2003] NTSC 10

Thomas v Parriman [2003] NTSC 10
PARTIES:PETER THOMAS
v
KEVIN PARRIMAN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  CASE STATED
FILE NO:199/2001 (20118660)
DELIVERED:  28 February 2003
HEARING DATE:  30 January 2003
JUDGMENT OF:  BAILEY J
CATCHWORDS:

CASE STATED – Ombudsman (Northern Territory) Act s 24(c) – whether the provision creates two separate and distinct offences, namely misleading the Ombudsman and attempting to mislead the Ombudsman.

Cases

Romeyko v Samuels (1972) 2 SASR 529 – considered
DPP v Williams (1993) 1 VLR 238 – followed
DPP v Merriman [1973] AC 584 - followed
REPRESENTATION:
Counsel:
Appellant:I Rowbottom
Respondent:  P Cantrill
Solicitors:
Appellant:DPP
Respondent:  NTLAC
Judgment category classification:      C
Judgment ID Number:  bai0302
Number of pages:  10

bai0302
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Thomas v Parriman [2003] NTSC 10
No. 199/2001 (20118660)

BETWEEN:
PETER THOMAS

Appellant
AND:
KEVIN PARRIMAN

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 28 February 2003)

On 19 January 2000, Peter M J Thomas, a Senior Sergeant of Police laid a complaint against Kevin Jack Parriman alleging that, on 26 July 1999 at Darwin, the said Parriman:

“… misled the Ombudsman or another person acting pursuant to the Ombudsman (Northern Territory) Act …”

contrary to section 24(c) of the Ombudsman (Northern Territory) Act (“the Ombudsman Act”).

Section 24 of the Ombudsman Act provides:
“24. A person shall not –
(a) without lawful excuse (proof of which shall lie on him) wilfully obstruct, hinder, or resist the Ombudsman or any other person in the exercise of his powers under this Act;
(b) without lawful excuse (proof of which shall lie on him) refuse or wilfully fail to comply with any lawful requirement of the Ombudsman or any other person acting pursuant to this Act; or
(c) wilfully make any statement he knows to be false or to be misleading in a material particular, or mislead or attempt to mislead the Ombudsman or any other person acting pursuant to this Act.
Penalty: $1,000 or imprisonment for 6 months.”
On 10 July 2001, the complaint came before a stipendiary magistrate at Darwin Court of Summary Jurisdiction for hearing.
Prior to commencement of the hearing and before a plea was taken, counsel for the respondent (Parriman) submitted that the complaint was bad for duplicity and objected to the complaint being put to the respondent on the basis that s 24(c) of the Ombudsman Act created five separate offences, namely:
(i)wilfully making any statement a person knows to be false or to be misleading in a material particular;
(ii)misleading the Ombudsman;
(iii)attempting to mislead the Ombudsman;
(iv)misleading any other person acting pursuant to the Ombudsman Act; and
(v)attempting to mislead any other person acting pursuant to the Ombudsman Act.
Counsel for the complainant (Thomas) submitted that s 24(c) created only two offences; namely:
(i)wilfully making any statement a person knows to be false or to be misleading in a material particular; and
(ii)misleading or attempting to mislead the Ombudsman or any other person acting pursuant to the Act.
Counsel for the complainant informed the learned magistrate that the basis for the complaint was that on 26 July 1999, the respondent complained, by way of written statement to the Ombudsman that he had been assaulted by police officers on two occasions in the cells of the Berrimah Watch House during the preceding day, and further, that the respondent had been threatened to “keep quiet and make no complaint”.
It was further the case of the complainant that, following the receipt of the respondent’s complaint in the Ombudsman’s office an investigation was conducted by various delegated or authorised persons pursuant to the Ombudsman Act, and at the conclusion of that investigation, a decision was made to lay the complaint referred to in para [1] above.
On 11 July 2001, the learned magistrate ruled upon the preliminary objection to the complaint. The learned magistrate ruled that s 24(c) of the Ombudsman Act creates three offences, namely:
(i)wilfully making any statement the accused knows to be false or to be misleading in a material particular;
(ii)misleading the Ombudsman or any other person acting pursuant to the Ombudsman Act; and
(iii)attempting to mislead the Ombudsman or any other person acting pursuant to the Ombudsman Act.
Following the ruling, at the request of counsel for the complainant, the learned magistrate, pursuant to s 162 of the Justices Act reserved the following two questions of law for the opinion of this Court:
(a)Does s 24(c) of the Ombudsman Act create, inter alia, two separate and distinct offences of misleading the Ombudsman, and of attempting to mislead the Ombudsman.
(b)Is a complaint bad for duplicity if it charges the person misled as being the Ombudsman or any other person acting pursuant to the Ombudsman Act?
The learned magistrate stayed further proceedings upon the complaint pending receipt of this Court’s opinion.
At the outset, I make it clear that I have serious concerns about the procedure adopted in the present matter. The two questions raised by the special case pursuant to s 162 of the Justices Act would appear to be entirely academic or theoretical.
The respondent was charged with having “… misled the Ombudsman or another person acting pursuant to the Ombudsman (Northern Territory) Act”. He was not charged with attempting to mislead anyone. Further, the learned magistrate ruled that the complaint was not bad for duplicity in having alleged that the person misled was “the Ombudsman or another person acting pursuant to the Ombudsman (Northern Territory) Act”.
On the basis of the special case, as stated initially, I was not inclined to answer either of the two questions posed since neither question arose on or out of the hearing of the complaint. There is, of course, a long and well established principle that interlocutory appeals in criminal proceedings are not to be entertained. Further, the special case or case stated procedure is not to be employed to answer academic or theoretical questions. After raising my concerns with counsel, I was informed that, notwithstanding the form of the complaint, the substance of the prosecution’s case is that the respondent had attempted to mislead the Ombudsman or other persons acting pursuant to the Ombudsman Act. Further, it was considered that an application to amend the complaint to refer to an attempt would be refused on the basis that, in light of the learned magistrate’s ruling, this would constitute the laying or a new complaint ‘out of time’. None of this background is apparent from the case stated.
I have not heard submissions as to whether the complaint could or should be amended to accord with the case which the prosecution wishes to put. I make no comment on whether or not the assumption that an application to amend would be rejected is correct. However, if for present purposes only it is assumed that assumption is correct, it is apparent that the learned magistrate’s ruling in relation to the issue raised by the second question of the special case would not prevent a hearing of the complaint. Accordingly, I do not consider it appropriate to answer that second question. To do so would only encourage future interlocutory appeals in criminal proceedings by use of the procedure provided by s 162 of the Justices Act.
As to the first question raised by the special case, notwithstanding the concerns referred to above, the matter has been the subject of full submissions and I will address the issue. However, I make it clear that, in my view, in the absence of an application on behalf of the complainant to amend the complaint the application to state a case was premature and similar applications in the future are not to be encouraged.
Courts have frequently had to deal with the issue of whether a particular enactment creates one offence with alternative methods of committing it, or two or more separate offences. The decisions concerning this matter are not always easy to reconcile. As a statement of general principle, I agree, with respect, with what Bray CJ had to say in Romeyko v Samuels (1972) 2 SASR 529 at 552:
“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.” (emphasis added)
See also DPP v Williams (1993) 1 VLR 238 at 242-245.
With respect, I also agree with Lord Morris in DPP v Merriman [1973] AC 584 at 593 that the question whether there is more than one offence is “best answered by applying common sense by deciding what is fair in the circumstances”.
In the context of s 24(c) of the Ombudsman Act, it would seem to me that the gist of the offence (leaving aside false or misleading statements) is the intentional attempt to mislead the Ombudsman irrespective of whether in fact the Ombudsman is misled.
It would seem to me that the distinction between an attempt to mislead the Ombudsman and the actual misleading of him is illusory. If the Ombudsman was in fact misled, one might wonder how there could ever be a complaint that he was misled if the ‘misleading’ never came to light. Any attempt to distinguish between circumstances where there was a wholly unsuccessful attempt to mislead the Ombudsman and an attempt which succeeded only temporarily would be an exercise in futility and invite ridicule.
An application of the guidance provided by Romeyka v Samuels, supra and DPP v Merriman, supra provides a firm foundation to hold that s 24(c) of the Ombudsman Act does not create two separate and distinct offences of misleading and of attempting to mislead the Ombudsman. The strength of that foundation is, in my view, not diminished by the respondent’s submission that because the Criminal Code (ss 4 and 277) make general provision for attempts to commit a crime, the Legislature had no need to refer to an attempt in s 24(c) unless it was intended to create a separate substantive offence. The submission fails to recognise that the gist of the offence created by s 24(c) lies in the attempt to mislead rather than the success of any such attempt. Further, it is entirely likely that the Legislature would have had in mind s 278 of the Criminal Code (the effect of which in the absence of an express reference to an attempt in s 24(c) would be to halve the maximum punishment for an inchoate offence).
The strongest submission made on behalf of the respondent was that in Romeyka v Samuels, Bray CJ held that the relevant legislation created separate offences of knowingly sending and knowingly attempting to send certain postal articles. Section 107 of the Post and Telegraph Act (Cmth) provided:
“Any person who knowingly sends or attempts to send by post any postal article which
(a)…
(b)…
(c)has thereon or therein on the envelope or cover thereof any words, marks or designs of an indecent, obscene, blasphemous, libellous or grossly offensive character,
shall be liable to a penalty …”
Bray CJ at 551, supra, held:
“The first question to be decided is whether s 107(c) creates for the present purpose one or several offences. Here, with respect, I find myself in disagreement with the learned Judge. It seems to me that the opening words of s 107, read with the specific words of sub-section (c), create two offences only, one of knowingly sending and one of knowingly attempting to send a postal article possessing any one or more of certain characteristics.”
His Honour continued at some considerable length to explain why he held that a complaint that a person knowingly sent a postal article possessing more than one of the characteristics prescribed by sub-paragraph (c) of s 107 was not duplicitous. However, His Honour gave no reasons beyond the passage quoted above for holding that s 107(c) created two separate and distinct offences of ‘knowingly sending’ and ‘knowingly attempting to send’. I make no comment on whether Bray CJ was correct in distinguishing between an attempt and a completed offence in the context of s 107(c) of the Post and Telegraph Act (Cmth). However, it does not follow that because one enactment creates separate and distinct choate and inchoate offences that another enactment dealing with an entirely different subject-matter must be taken to have intended the same result.
In the context of s 24(c) of the Ombudsman Act, adoption of a distinction between an attempt to mislead and an actual misleading would defy commonsense and encourage entirely unmeritous arguments as to whether an accused person had been charged with the correct offence. In my view, this cannot have been intended by the Legislature.
Answers to the Special Case
For the reasons set out above, I answer the questions posed by the special case as follows:
(a)No
(b)Inappropriate to answer

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