Van Der Meer v Allen

[1991] TASSC 63

Serial No 44/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Van Der Meer v Allen [1991] TASSC 63; A44/1991

PARTIES:  VAN DER MEER
  v
  ALLEN

FILE NO/S:  

LCA97/1990
7 June 1991

DELIVERED ON:  

JUDGMENT OF:  Wright J

Judgment Number:  A44/1991
Number of paragraphs:  7

Serial No 44/1991
List "A"
File No LCA 97/1990

VAN DER MEER v ALLEN

REASONS FOR JUDGMENT  WRIGHT J

(Given Orally)  (23 November 1990)
(Published)  (7 June 1991)

1. In my opinion this motion to review should be allowed and it should be allowed on the first ground relied upon by the applicant.

1. The applicant in this case was charged with imposition pursuant to s.29B of the Crimes Act. That charge arose out of his application for employment with the Commonwealth Banking Corporation in which he was asked this question:

"Have you, in the last five years served any part of a sentence of imprisonment or been charged with any criminal offence which has been proven against you?"

There was provision for two answers to be made to that question by either ticking a box alongside the word "yes" or ticking a box alongside the word "no". The applicant ticked the box alongside the word "no".

1. In the course of giving evidence in the proceedings in the Court of Petty Sessions, the applicant said that he had filled in the form and given that answer in the way that he had as a consequence of legal advice that he had received concerning the need for him to answer that question in one of the two ways provided.

1. No matter what other ingredients may be comprised in the offence of imposition it is beyond doubt that the first and essential ingredient is that there should have been an untrue representation. That it is possible to commit the offence of imposition in respect of an application for employment with the Commonwealth is borne out by the High Court decision of Bacon v Salamane (1964–1965) 112 CLR, p85. As Mr Justice Owen said in that case at p92:

"The necessary elements of the offence in such a case as the present are (1) that the person charged imposed upon the Commonwealth or upon a public authority under the Commonwealth by an untrue representation, that is to say untrue to the knowledge of the person charged; and (2) that the representation was made with a view to obtain, that is to say with the object or for the purpose of obtaining, money or some other benefit or advantage."

1. In my opinion, the prosecution really failed in limine in that it failed to establish that the representation made by the applicant, was an untrue representation. The form chooses to ask in respect of "any criminal offence". There is nothing to suggest on the material presented before the learned magistrate that the applicant had been charged with, or convicted of, an indictable offence pursuant to the Criminal Code in Tasmania or indeed, pursuant to the Crimes Act of the Commonwealth or for any other offence which I think a lawyer would call a crime. It is suggested that "criminal offence" is a phrase which should be interpreted very broadly so as to catch within its ambit, any offence which has an element of dishonesty. I reject that proposition in its entirety. Under the provisions of the Criminal Code, a crime is, as I say, an offence punishable upon indictment. It is not suggested that the accused had ever been convicted of any such offence such as that, and the fact that he was convicted of motor vehicle stealing under the Police Offences Act, which is a specific statutory offence, does not, in my opinion, prove that he has been charged with or convicted of a criminal offence.

1. The accused is entitled to rely on the terms of the actual document that is the foundation for his prosecution and in the view that he took, upon legal advice, and indeed in the view that I take having heard the argument, it was not untrue for him to say that he had not been convicted of a criminal offence when he answered the document in the way that he did. That really is an end of the matter and it is not necessary for me to go on and deal with the further points that have been the subject of debate this morning. But it seems to me that the prosecution failed on that essential element of the case and that the complaint should have been dismissed.

1. Accordingly, the motion to review will be allowed and the complaint will be dismissed. I will hear any applications for any consequential orders. I will adjourn the question of costs for further argument.