Wescombe v The Queen

[1988] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M51 of 1987

B e t w e e n -

RUSSELL ERNEST WESCOMBE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J

DEANE J

Wescombe

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 MAY 1988, AT 10.16 AM:

Copyright in the High Court of Australia

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MR D. WRAITH:  If the Court pleases, I appear for the

applicant. (instructed by the Director of Legal Aid)

MR I.D. TEMBY, QC: If it please the Court, I appear with

my learned friend, MR. N. CRAFTI, for the respondent.

(instructed by the Director of Public Prosecutions)

MASON CJ:	Mr Wraith.
MR WRAITH:	Could I hand to the Court the sunnnary of the

principal submissions of the applicant, copies of

various entries in dictionaries and copies of the

relevant exhibit, the taxi voucher that is the

subject-matter of this appeal.

MASON CJ:  Thank you. We seem to have got everything except

the sunnnary so far, Mr Wraith. I see, it is coming

at last, as if it were the most unimportant of the

documents being handed up. Yes.

MR WRAITH:  I think the points can be simply stated, if the

Court pleases, or the point can be simply stated

if the Court pleases. It is this; that the applicant

relies on the judgment of His Honour Mr Justice Nicholson

in the Court of Criminal Appeai Victoria. The analysis

of the authorities, in our respectful submission,

is the one to be preferred to that of the majority

and conveniently that judgment summarizes for this

Court the argument of the applicant and it is simply

this, that no authority, whether from this Court

or elsewhere so far, has defined the meaning of

the word "imposed" in the Connnonwealth CRIMES ACT,

section 29B, that whenever this Court or any other

court has been dealing with the section it has

been dealing with another topic. It has never

been germane, in our respectful submission, to the

decision in whatever case one looks at. Therefore,

one is left with the decision of this Court in

HANSEN V ARCHDALL, which certainly was a decision

in relation to a different Act, but the word

"imposed" was used, in which it was said by this Court
oy the	various members of this Court, that the

word "imposed" had a meaning which, if I may use

the expression, involved a dishonest intent.

(Continued on page 3)

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Wescombe

MR WRAITH (continuing):  I will come back to define that more

precisely and it will be argued .that subsequent
authority in this Court and in other State courts,

when dealing with other topics, have not as

yet derogated in any way from that definition.

There has been some authority which follows

this Court, particularly Mr Justice Owen in

BACON V SALAMANE which again was a case which

did not directly concern, in our submission, the definition of "impose" but, nevertheless,

other judges in other courts have relied upon

His Honour Mr Justice Owen's analysis of what

the section means and have derived from it a

meaning·:. Some have said that "impose" means

what it says, that you simply put to a jury

that word and leave it to them. Others have

followed HANSEN V ARCHDALL and say it has an

element of dishonesty.

In fact, twice the Queensland Court of

Criminal Appeal have equated the word "impose" with dishonesty, in my submission. If I could

crystallize what I am saying in two ways - I

will be referring to the dissenting judgment

of Mr Justice Nicholson in the decision in the

Court of Criminal Appeal in Victoria, but as

recently as last year the Court of Criminal

Appeal in Queensland had reason to pass upon

the section - not in the context that we have

here - and one of the learned justices,

Mr Justice Carter, in the case of BAXTER, which

appears in the authorities, had, in my submission,

cause to refer to the definition in HANSEN V

ARCHDALL, and appear to give it a meaning that

had been given by some of the justices - or

one justice in particular in that Court.

The reference is 27 A Crim R part 1, page 18,

and the reference that I rely on now is at

page 24. Very briefly, that was a case where

the appellant had deposited forged cheques

and then used an Easybank to obtain money. (Continued on page 4)

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MR WRAITH (continuing):  And the question for decision was

not the same question here, it was whether the:

representation may fairly be regarded as having

been made although it is communicated to no

one in particular.

But, in passing, Mr Justice Carter said this:

It is trite to say that a representation

of fact made by one person to another can

be made by conduct. In any event the section

is drawn in very wide terms. It refers to

whatsoever ... 11 • "any untrue representation made in any manner

And then His Honour goes on - this is the vital

portion -

It has consistently been held that "imposes"

in this section is equivalent to "deceives"

or "to get the better of": per Rich J in HANSEN

V ARCHDALL.

MASON CJ: That carries the notion of "take advantage of,

get something to which you are not entitled or

something which you ought not to get but for what

you do".

MR WRAITH:  Yes, and I am not aware of whether the Court

has had an opportunity of reading the decision

of our Court of Criminal Appeal either in the appeal

book or in the reports in this particular matter

but perhaps it would be convenient if I was to

go to that decision now which puts the argument

through that avenue. If I may be permitted to

refer to the report rather than - I have reference

to the pages in the appeal book.

MASON CJ: I do not think we have the report. Apparently

it was not on the lists that were furnished to

the Court.

MR WRAITH: It was, with respect.

MASON CJ:  Was it?

MR WRAITH:  Yes. I am sorry, it was wrong - I had not observed

this. It is given as 1984, in fact it was 1987.

MASON CJ: That is no doubt the reason why we have not got

it.

MR WRAITH:  I apologize for that. It is (1987)

Advance Part 11 1012.

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MASON CJ:  No doubt we can pick it up from the appeal books

anyhow, because the judgments are not all that long.

MR WRAITH:  167 is the commencement.

MASON CJ: We have read the judgment so that if you can just

indicate precisely what part of the judgment you

want to direct our attention to.

MR WRAITH:	If I may respectfully say so, a great deal of the dissenting judgment I rely on and I am going
to have to take the Court to the majority and point to matters which I submit are erroneous in those
judgments but I would prefer, if I may, because it
encapsulates almost to a tee the argument that I am
putting to,this Court.

(Continued on page 6)

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Wescombe

MASON CJ:	Yes.
MR WRAITH:	I am quite prepared to take the Court back

to HANSEN V ARCHDALL and so on, but it is my submission

that the various judgments, but in particular the

judgments of Mr Justice Nicholson deal with it

adequately for the purposes of at least making my argument

clear , I hope.

The applicant was presented on 11 counts of

imposition pursuant to the section. He was acquitted

of 10, and the remaining count, the factual situation

is set out in general terms at page 1013 of the judgment

of Mr Justice Murray. Essentially what he said was

that he had filled out one of these cab charge vouchers

for the purpose of obtaining the services of one

Arthur Jones for a religious interview.	He had been
unable to obtain him, or get in touch with him.	He

had left the docket at the reception of the ABC office

at East Burwood in Melbourne, and when Mr Jones could

not be obtained and it was obvious he was not going to

be coming, he, the applicant used that particular

cab charge for an authorized purpose, namely, taking

home heavy equipment for whatever purpose he was going

to use it.

The Court at the moment, if I may so, can take

that as being common ground. As far as I am concerned it is common ground that there were legitimate purpose for which employees could use cab charges. His argument

was that althoughton the face of it,it was not used

for the purpose it delineated, in fact he used it

as a matter of convenience. He had an authorized trip

to make and he made it. And, in essence, the Commonwealth

was not defrauded, was not cheated.

MASON CJ: Iti other. .words, -if: he had filled in a voucher- correctly

there would not have been no question but that.

MR WRAITH:	Yes.
MASON CJ:	He was entitled.

(Continued on page 7)

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MR WRAITH:  Yes. In the end that is what it comes down to

and that is what he swore to and the learned trial

judge, in charging the jury, put to the jury - in

fact, one would say he followed Mr Justice Owen's

judgment in BACON V SALAMANE but in addition went as

far as giving to the jury what we would submit was a

selective definition of the word "impose", hence

the Court has been provided with three dictionary

definitions of the word, all of those definitions

include deceit, deception, dishonesty, as being a

synonym appropriate. What His Honour did, it is

submitted, is simply chose one set of words and were
not appropriate words in the circumstances that this
was a criminal trial in which there was a term
of imprisonment that could be imposed, and that, in

fact, if I may now go to the judgment of

Mr Justice Nicholson, he initially deals with the

factual situation at page 1018, he then describes

the defence of the applicant - if I may use a loose

term in this Court, if I maybe permitted - it was

really something of a claim of right, but irrespective

of whether that is precisely correct. or not, or

whether it just goes to the question of whether

he is acting dishonestly, in my respectful submission

does not matter.

His Honour then refers to the various

authorities and of course to HANSEN V ARCHDALL,

BACON V SALAMANE and LAMB V TOLEDO BERKEL. The learned

judge, at page 1019, in the middle paragraph,refers

to the respective definitions given to the word by

this Court, the Chief Justice Isaacs and

Justice Gavan Duffy saying that:

the expression "impose upon" in the

section meant cheating or wilfully

deceiving. Rich J. said that the word	"impose11 is treated as equivalent to deceive
or get the better of. Starke J. said ..... "The section refers to an imposition
by one person imposing on another to get
something by dishonest representations, but
getting that something as a rule in return for nothing."

(Continued on page 8)

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Wescombe

MR WRAITH (continuing): So, if one was, of course, to adopt that definition

if His Honour had chosen to put that definition to the

jury or one of them, the answer of the applicant

would be, "Well, I did not impose because the

Commonwealth were in fact repaying me or paying me for something I would be entitled to in any event.

I used it as a matter of,convenience - there was

nothing wilful". Although on the face of it the

Cormnonwealth may have been misled, the fact is they

suffered no injury. And then at the risk of repetition,
if convicted to be liable to a term of imprisonment

on those facts, in my respectful submission, is not

proper and that the construction which I am urging

is proper in the circumstances.

BRENNAN J:	What is the distinction then between 29A and 29B?
MR WRAITH:	The distinction between 29A and 29B is, I think I

have got to face it and I would put it this way - I
was going to come to that and His Honour deals with it.

It is either that there is an element of dishonesty, or

I still submit and do not derogate from this, that

there needs to be an element of cheating or deceiving

because an intention to defraud involves usually a

detriment to the person defrauded, whereas here what

the applicant is saving - in fact what he is principally
saying i~ "There is no detriment because if I
had have filled it in correctly I would have got my

$10.90 properly" or the $10.90 was not an imposition.

It is a distinction, in my submission, that is real

and has force when one has regard to the nature of the

section. It' still imposes a sentence of 10 years

imprisonment. It may be that in some cases, of course,

probably in this sort of case it would not be and

was not. But there it is.

His Honour Mr Justice Nicholson then analyses,

if I may conveniently do that, the authorities of

other courts of criminal appeal in the Commonwealth

who have dealt with this. As I repeat,in relation

to different headings it is usually a bank card

situation and I think in most instances that is so.

In the case of LOCKETT it was a bankcard. In the

case of PIEPERS it is a bankcard. BAXTER, as I

have already referred to, was an automatic teller

machine.

(Continued on page 9)

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MR WRAITH:	The case of	BACON V SALAMANE itself, of course,

dealt with the question of whether it was an

advantage to receive a contract of employment from

the Commonwealth and the Court was principally

concerned in that case with that issue. And lest

it would be said that Mr Justice Owen and, indeed,

to some extent, Mr Justice Windeyer, was dealing

with the question this Court is seized with at
the moment, it is submitted no: that no clear

ratio emerges - the ratio is concerned with the

question of whether it was an advantage to be employed

by the Commonwealth. But, in passing, certainly

Mr Justice Owen ventured a definition. And so,

at page 1020 His Honour deals with the other authorities

that have emerged since the decisions of

HANSEN V ARCHDALL and BACON V SALAMANE and they

are referred to in the list of authorities - the

South Australian Full Court in LOCKETT; the Queensland

Full Court in JACOBSEN V PIEPERS and the decision

of Chief Justice Burt in BRYCE V CURTIS.

I should say, immediately, that BRYCE V CURTIS

is not a decision which - it deals with imposition

but does not bear on this problem at all. In

LOCKETT's case, Mr Justice Zelling arrived at the

conclusion that he doubted whether the mens rea

required by the section was that of cheating or

wilfully deceiving and he did that in terms of appearing to follow the decision of His Honour

Mr Justice Owen in HANSEN V ARCHDALL and said it

was better to use the exact words of the statute whereas Mr Justice Jacobs in that same case said that although, in his view, no intention to defraud

need be proved - and that is perhaps a distinction
between that and section 29A - under section 29B,

and in this regard he pointed to the difference

in terminology between the section and section 29A

where the expression "intent to defraud" is used,

he concluded at page 448 - this is a very brief

sentence:

The offence created by that section is treated

as a less serious offence than the offence
under section 29A, which involves a greater

element of dishonesty, namely an intent to
cheat or defraud.

So, again, if I could answer Your Honour

Mr Justice Brennan, that is the way the applicant

would put it, although it is not necessary, perhaps,

to prove an intent to defraud there is a necessity

to prove an element of dishonesty.

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Wescombe

BRENNAN J:  Or is it sufficient that there be an intent to

deceive?

MR WRAITH:	For the purposes of this application, yes.
BRENNAN J:	Well, I wonder if that is sufficient for your purposes because take a public servant who might
be entitled either to a meal allowance or overtime and there is some departmental problem without
getting overtime allowed so he puts it down as
a meal allowance. He is, in fact, entitled to
something but he puts it under a different heading,
and gets it, gets no more than he is entitled to
but gets it under a different heading. Would that
fall under 29B.
MR WRAITH:	I am sorry, . I should have been more -''wilfully deceiving", I think, would be -

BRENNAN J:  "Wilfully deceiving". Quite deliberately wishes

the paymaster to misunderstand the character of the

payment.

MR WRAITH:  Well, Your Honour, is posing me a problem which encompasses the term "wilfully deceiving".

BRENNAN J: Yes.

MR WRAITH:  Yes. But here that is not what the applicant

was saying in his sworn evidence. He was saying

that he was entitled to it and he was not wilfully

deceiving, he was merely, as a matter of convenience,

because Jones did not turn up, using the voucher

that would have otherwise been used by Jones for

his travel.

BRENNAN J: Well, that is irrelevant to the cause of action,

surely, to the elements of the offence. The elements

of the offence here are his pretence that the cab

use that he had was covered by that particular

voucher.

MR WRAITH:  That is so. In doing what he did it was a

pretence, but was it a dishonest or wilful act.

BRENNAN J:  Well, it was wilful enough in the sense that

he wished the paymaster to understand that it

was the Jones one?

MR WRAITH:	Yes.
BRENNAN J:	In other words, the problem seems to me to be whether or not there has got to be an intention
to acquire something, money or a benefit, to which the person charged with the offence had no right or whether it is sufficient that he seeks the benefit or money but does no more than causes the relevant
authority to labour under some misapprehension that
he does so deliberately.

· C2T8/l/MB 10 31/5/88

Wescombe

BRENNAN J:  I wonder whether the second of those is sufficient

for your purposes?

MR WRAITH: I must say I finq it diffi_cult to come to terms

with that but 1t also involved a con~ept
of claim of right, I suppose. The tendency
of that particular situation is to cast doubt

upon the intention to defraud or intention to

deceive, or whatever.

MASON CJ:	At the moment, Mr Wraith, I do not understand why you are putting so much emphasis on the
need for some kind of mens rea.  I should have
thought myself that the word "impose" particularly
in the context in which you see it in this section,
connotes some taking advantage of. In other
words, that what is done results in some deprivation
of an advantage or a detriment to the Commonwealth or the authority?
MR WRAITH:	Yes.

MASON CJ: That idea seems to run though some of the cases

but in Mr Justice Nicholson's judgment the two

ideas seem to run together?

MR WRAITH:  Yes, if I understand what Your Honour is putting

to me it nevertheless is simply not good enough

to put to the jury, "Well, the word 'impose' II

means - - -

MASON CJ:  Yes, that is what I am raising with you.

MR WRAITH: "To place an obligation, a burden on." It has

to mean something more in the context of a criminal

statute.

MASON CJ:	Yes.
MR WRAITH: What is it? Quite frankly the applicant turns

to this Court in HANSEN V ARCHDALL and says,

"That is as close as you can get to a requisite

intention". There has been, in my respectful

submission, some confusion in the cases as to what the requisite mens rea is? Is it simply the knowingly furnishing a false docket?

Or is it more than that? If all he does is

knowingly furnish this document to the authorities,

knowing it is false, is that enough?

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Wescombe

BRENNAN J: Well, it is obviously not because it has got to

be with a view to obtaining.

MR WRAITH:  With a view of obtaining benefit. And on the

definition here provided by the learned trial judge,

the jury could have fallen into that error.

DEANE J:  Does not it come down to this: do you impose

somebody with a view to obtaining a benefit if all

you do is obtain what you are entitled to anyway?

MR WRAITH:  No, is the short answer.

DEANE J: Well, I understand that is your answer, but is

that not the question?

MR WRAITH: That is the question and why I am referring to

His Honour's judgment because he analyses the various

authorities in a way which puts the matter in its proper perspective, in our respectful submission.

MASON CJ:	But emphasis on mens rea seems to obscure that issue.
MR WRAITH:	Except that there has been discussion in the cases

of the relevant mens rea.

MASON CJ: Yes, I follow that. I think that tending to

emphasise that obscures the issues - - -

MR WRAITH: It does.

MASON CJ:	- - - as it has been put to you by Justice Deane.
MR WRAITH:	Yes.
DEANE CJ:	If you look at the passages His Honour relies on -

the definittions - they all have a notion of deceptively

as one of the meanings he stresses. Well, that does

not help you, does it?

MR WRAITH:  I answer it in this way, and I do not know

whether it is a satisfactory answer, but certainly

it appeals, and that is there is a lack of wilfulness

in the conduct.

DEANE J:  But if deceptively suffices, and His Honour seems

to think it does, if you obtain what you are entitled to

by a false representation, you have obtained what you

are entitled to deceptively.

MR WRAITH:  But not necessarily dishonestly.

DEANE J: Well, it seems to me it just, as the Chief Justice

said, conceals what is the real question here.

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MASON CJ:  It seems a little odd that you can be ~uilty of

a criminal offence that results in a penalty of two

years imprisonment by making a false statement that procures for you something that you are entitled to

anyhow.

MR WRAITH:  Well, that is crystalizing my argument. I am

sorry, I am not - that is it, yes.

DEANE J:  Indeed it might even procure for you less than

you are entitled to if you thought that the taxi fare

was a bit too much in the circumstances and said

that, "I'll say the fare was only five cents instead

of ten cents". On these judgments, you would still

be liable to two years imprisonment.

MR WRAITH:	Yes.
DEANE J:	Becaue it would be a false representation.
MR WRAITH:	Yes. Well, I do not think I can put it any

better, with respect.

DEANE J: Well, I do not think I was putting it as an argument

your way. I was simply trying to direct your attention

to wnat seems to me to be the question.

MR WRAITH:  Yes. If the Court pleases, would the Court be

assisted by reference to the various dictionary

definitions?

MASON CJ:  You may as well draw our attention to them,

I think, Mr Wraith.

MR WRAITH:  The Random House Dictionary of the English Language

is one which has been provided to the Court. One of

the definitions there of the word "imposed" is 12b:

(Continued on page 13)

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Wescombe

MR WRAITH (continuing):

to take unfair advantage of; misuse

(influence, friendship, etc.) to defraud;

cheat; deceive.

I do not quite follow what the next is but:

A study recently showed the shocking number of confidence men that impose on

the public.

The definition in the Shorter Oxford English

Dictionary. The first definition of the word "impose"

given is to:

place on or into>inflict, set over, lay

as a burden, deceive, trick.

The Webster's definition, number 6:

To lay or inflict cheatingly or deceptively; to pass off; as, to impose

inferior goods upon one.

MASON CJ: Yes, Mr Wraith, I seem to have been favoured with

about four or five copies of the relevant page from

the Shorter Oxford English Dictionary on Historical

Principles without the Webster? That is not your

fault, I suspect.	We now seem to be in order,
Mr Wraith.

MR WRAITH:  The other members of the Court of Criminal Appeal,

Mr Justice Murray and Mr Justice McGarvie, simply

seem to treat the definition of Mr Justice Owen as

being definitive. But in Mr Justice McGarvie's judgment

at page 1017, His Honour said this that:

The words used in the cases above -

and he was referring to HANSEN V ARCHDALL and

LAMB V TOLEDO-BERK.EL -

indicate that a person imposes upon

the Commonwealth or authority either by
chearing it or by wilfully deceiving it.

Cheating involves both wifully deceiving

and causing a detriment to the Commonwealth

authority. If the applicant did what he
said he did, that clearly amounted to
wilfully deceiving the Commonwealth

authority in the sense of wilfully

misleading it.

I just want to make it clear that I quarrel, with

respect, with His Honour's definition of the conduct

C2Tll/l/SR	. 14	31/5/88
Wescombe

of the applicant and I think I have already put it

to the Court why. The criticism of the judgment

of Mr Justice Murray is that he simply has assumed

that His Honour Mr Justice Owen had turned his mind

to the problem that this Court is now confronted

with when in fact, of course, the court was

concerned with a quite different situation, namely

the obtaining of employment from the Commonwealth,

that being held to be an advantage.

(Continued on page 15)

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Wescombe

MR WRAITH (continuing): It is true that in that decision

Mr Justice Windeyer refers to, in giving meanings

to words taken from other statutes but, nevertheless,

it is our submission that once again His Honour

was not necessarily adverting to the problem

that this Court is concerned with. So, in the

end, the learned trial judge, it is submitted,

erred in his first definition to the jury, of

the word "impose". I perhaps should conclude,

by informing the Court, as is apparent from

the judgment of Mr Justice Nicholson, that there

was a redirection and the Court, having read

the appeal book, is probably appreciative of

that fact that His Honour, in that redirection,

seemed to be saying that if you accepted what

the applicant said about this or left in doubt

about this, he should be acquitted.

If this be an argument which will be raised

against me then the problem with that is that

the jury may not have a pp rec ia ted the significance

of that redirection in relation to this particular

count.

MASON CJ:	What page is the redirection?
MR WRAITH:	The redirection in the appeal book is at page 162.

Perhaps it is more convenient, if the Court

pleases, to commence the redirection at page 161

at the bottom paragraph and over. At line 10:

First of all, if you accept the explanation by the accused in respect of any count

he should be acquitted, if you accept his

explanation as I have directed you on the

law. Do you follow that? So that if you

accept his explanation by the accused in

respect of any count he should be acquitted.

It just occurs to me now that I should

have said to counsel before that there

must be a rider to that though in relation

to what I had to say re direction of law

about the candle-stick and the making good

situation, because I directed you that

in relation to that count that that in

itself would not be satisfactory.

If I may just pause there, I do not know whether

that is meaningful to the Court or not?

MASON CJ: It certainly is not to me.

MR WRAITH:  I must come back to a passage where what occurred

was the defence of the applicant to most, if

not all, accounts was that what he was doing

was making good. That is, that he was, as it

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Wescombe

was said before, using one particular cab charge
for a purpose that was quite legitimate - it

was not for the purpose as stated but it was quite

legitimate.

His Honour at one stage gave an example

to the jury that you cannot do that. That you

cannot, because somebody owes you money, come
along and pinch his candlesticks simply because
he owes you money. He put that to the jury.

So that what His Honour, as I understand it, was doing was reiterating that.

(Continued on page 18)

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Wescombe

MR WRAITH (continuing):  But on the other hand, as I

understand what His Honour was saying, if you seem to be exercising some sort of claim of right, then

you cannot do that, you cannot make good. That

is not an answer. The passage to which I refer

where he mentions that, in relation to the candlesticks,
in his charge, is at page 120 of the appeal book.

May I just read that passage to the Court, to make

it perfectly clear what I think His Honour was doing

in that redirect ion:

What I say to you is this, the mere fact that

the A.B.C. may owe him for the cost of the

taxi fare he had previously incurred on A.B.C.

business, and that is the Port Melbourne one, the mere fact that the A.B.C. may owe him the cost of a taxi fare he had previously incurred

on A.B.C. business, if and when he puts in a

claim is irrelevant. He has imposed upon the

A.B.C. by an untrue representation and obtained a benefit on this particular date, the

11th January.

They are separate events those two occasions

that have been referred to and each of the

journeys are separate events. For example, if

I owe you money and without any arrangement with you you steal my candle-sticks you cannot say you

have a right to do so because it has got nothing

to do with owing the money.

MASON CJ:  But that is a different situation, is not it, in

which the use of the vehicle is not for a legitimate

purpose on the occasion in question.

MR WRAITH:  Yes. I should perhaps, for completeness, refer the

the Court to two other passages in His Honour's

charge, perhaps should make it clear. The first

definition that His Honour gives of "impose" is at

page 11, and in that definition, which is contained

in two of the judgments in the Court of Criminal Appeal

he reads to the jury definitions of "impose" from

presumably the dictionary which contained no

reference to deceit or dishonesty.	At page 11 the
synonyms used are:

'to place a burden upon', 'to inflict something

on or upon', 'to levy on', 'to set on',

'to put upon', an imposition, 'to place an

obligation upon', the ordinary natural meaning

of the words 'impose upon'.

It is submitted that His Honour is doing no more than

taking from a dictionary a selective definition of

the word.

CZTD/ 1/HS	18	31/5/88
Wescombe

DEANE J:  I just do not follow your point there, I am sorry.

What is the difference between imposing upon by a knowingly untrue representation and imposing upon

deceptively?	It seems to me they are exactly the
same thing.

MR WRAITH:	I would say the latter is worse than the former.
DEANE J:	I see.

MR WRAITH:  It lacks an element of wickedness, for want of a

better word.

DEANE J:  What, to impose upon by a knowingly untrue

representation is not to impose upon deceptively?

It comes very close to it, does not it?

(Continued on page 20)

C2Tl3/2/HS	19	31/5/88
Wescombe

MR WRAITH:  But nevertheless the distinction I would draw

to make it perfectly clear is that there may be

lacking an element of dishonesty as was here.	What
he said was, "Look, I was going home, I had to
take heavy material, I just picked it up and took	i t . II

DEANE J:	But knowing the untrue
MR WRAITH:	He knew that when it went in that it would be

paid because of what it bore on its surface.

DEANE J:	You are using "dishonest" in a different sense
to the primary meaning or what I would have thought was the meaning of "deceptively".
MR WRAITH:	The word "dishonesty" certainly caused a lot

of concern in Victoria, in any event, in relation to the THEFT ACT and I am not sure that I can put to Your Honour a clear definition. It might have

been easier in the circumstances to say to a jury,

"Look, is this dishonest conduct? What do you

think?"

DEANE J:	I am being obscure but it seems to me when you
use "dishonestly" that way you move into the other
argument which the Chief Justice referred to but
all I was indicatinR to you I just do not follow
the argument about deceptively".
MR WRAITH:	I am endeavouring to make the distinction,

Your Honour, but if it is not clear then I regret it but that is the only way I can put it.

BRENNAN J: Is there_a distinction between an intention to deceive

and an intention to defraud?

MR WRAITH: Is there a distinction?

BRENNAN J: Is that the relevant distinction in this case?

MR WRAITH:  Yes, because an intention to defraud requires

a detriment usually whereas an intention to deceive

may not.

BRENNAN J:  And you case is that an intention to deceive

is insufficient?

MR WRAITH:  Yes, but what I am trying to put is that there

was no intention to deceive.

BRENNAN J:  Can that be right that there was no intention

to deceive?

MR WRAITH:  In the applicant there was no intention to deceive

by that conduct. He went further.

C2Tl4/l/ND	20	31/5/88
Wescombe

BRENNAN J:  The proposition on which the Crown rests is that

he intended the paying authority to believe that
the cab charge was in respect of the transportation

of Mr Jones which it was not.

MR WRAITH:  Yes.

BRENNAN J: Is that not an intention to deceive?

MR WRAITH: If proved against him it would, but perhaps I am

not following Your Honour.	With respect, I am
putting what he said.	He said he picked it up
and took it and used it.

BRENNAN J:	But is not that what the use amounts to?
MR WRAITH:	But never turned his mind at the question of

deceit. He did not try to trick, impose upon,

in that sense the Commonwealth, cause any detriment,

defraud, take down, get something to which he was

not entitled. That is the way - I might say, in

passing, at pages 126 and 127, His Honour lapsed
into using the expression "intent to defraud" in

relation to it being the relevant mens rea. That,

no doubt, will be referred to by my learned friend

but it nevertheless did not form the substance

of the charge.

(Continued on page 22)

C2Tl4/2/ND	21	31/5/88
Wescombe

TOOHEY J:  When you put it that way, Mr Wraith, you seem

to be running "intent to deceive" and "intent to

defraud" together as if one is merely - - -

MR WRAITH:  I appear to be and I am not intending to - I

appreciate that.	I am drawing the distinction
between the two.

TOOHEY J: There is a deceit in one sense, is there not -

a deceit in so far as the ABC is presented with

a document which does not reflect the factual

situation.

MR WRAITH:  Yes, that 1s so.

TOOHEY J: It may not be out of pocket as a result but it

is deceived.

MR WRAITH:  It is. But then when one goes to the mind of

the applicant, he is saying: "I was not causing

them a detriment, I was entitled to it; it happened

on the spur of the moment" - - -

TOOHEY J:  But when you do that you keep jumping from "intent

to deceive" to "intent to defraud". Did the applicant

say, "I did not intend to deceive the ABC"?

MR WRAITH: Well, I would argue, in a sense, yes because

he said, in effect, "I used it as a matter of

convenience; it was there laid out, made out" - sorry I have come back to it - "no dishonest

intention".

TOOHEY J:  You mean, "I had no dishonest intention of any

sort".

MR WRAITH:	Any sort, "although I knew, that on the face of it, that was not what had occurred and that
the Commonwealth, itself, may be misled." I think that is encapsulated, to a degree, in the analysis
that His Honour Mr Justice Nicholson makes in his
judgment at page 1022:

It may be that in many cases the fact

of making the untrue representation knowingly

would be sufficient to enable an inference

to be drawn that there was an intention to

impose, for example the knowing use of a credit

card beyond the limits set out -

that is the majority of the cases in the other

Courts of Criminal Appeal -

but this case was not one of them because

the defence involved a claim of right.

C2Tl5/l/AC	22	31/5/88
Wescombe

In my opinion, the direction given by

His Honour may well have produced the effect

in the jury's mind that no element of dishonesty

at all was an ingredient of the offence, once

they were satisfied that a knowingly untrue

representation had been made in order to obtain

an advantage or benefit.

Then His Honour goes on to say how he would approach

it somewhat along the lines of the Victorian

Court of Criminal Appeal in SALVO's case where

the court sought to define dishonesty. Unless
the Court wants me to take it to the various judgments
in the other Courts of Criminal Appeal, that is

the argument of the applicant. That is the only

matter that remains to be done but as I have said

the passages in the judgments of the Courts of Criminal Appeal in Queensland and the relevant

High Court decisions are set out in the respective

judgments in the Court of Criminal Appeal so unless

the Court - but I can put this submission, I think,

fairly clearly, that there is no definitive definition

in any of those judgments of the word and there

is a difference of opinion. For example,

Mr Justice Campbell in JACOBSEN V PIEPERS refers

again to the decision in HANSEN V ARCHDALL. Certainly,

Mr Justice Jacobs appears to be saying there is

an element of dishonesty in LOCKETT's case and,

again, I repeat one member of the Court of Criminal Appeal

in Queensland, recently, has also placed a definition

of "imposed" which is in line with the submission

that I am here putting.

(Continued on page 24)

C2Tl5/2/AC	23	31/5/88
Wescombe

:MR WRAITH (continuing):  So, for those reasons, unless there

is anything the Court wishes to have put to it - - -

DEANE J:	Was there any request for a relevant redirection?
:MR WRAITH:	No.

DEANE J: There was not. That does raise a problem from

your point of view in view of His Honour's last

direction, from one point of view, does it not?

:MR WRAITH:  Yes, it does. Quite clearly I have to face

that. The reason I was referring to the other

portions of His Honour's charge which deal with

this question was that the jury may well have

remained with the initial definition - - -

DEANE J:	I follow what you say, yes.
:MR WRAITH:	- - - and not fully appreciated their task.

When it came to deal with this particular - I handed

up to the Court the voucher, the relevant voucher.

It was different in that it was signed by

Mr Wescombe, the applicant, in his capacity as

an authorizer of the voucher, to bring Jones.

He also signed Jones' name. In every other voucher,

as I understand the position, that was not so, he
had never signed any other name but his own.

So, as His Honour Mr Justice Nicholson put it,

this was somewhat different to the other counts
on which he was acquitted, and that the redirection,
therefore, may not have cured the situation even

in the situation where he was acquitted of other

counts. If the Court pleases.

MASON CJ:	Yes, thank you, Mr Wraith. Yes, Mr Temby.
:MR TE:t1BY:	May it please the Court, I provide an outline

of submissions for the respondent.

MASON CJ: Thank you.
:MR TE:t1BY:	While that is being distributed could I perhaps

say, in relation to the query recently raised

by Your Honour Mr Justice Deane, that while there

was no request for a redirection my learned junior,

who was counsel for the Crown at the trial, tells
me that the judge's charge followed substantial

debate as to what shape it should take and the

submissions then made for the present applicant

were broadly consistent with the argument that has

been addressed by my learned friend this morning.

So that is not a point that we should benefit from. Your Honours, if I could seek to give a very

brief resume of what we see to be the essential facts.

Wescombe was an employee of the ABC, which was an

authority under the Commonwealth within the meaning

C2T16/l/:t1B	24	31/5/88
Wescombe

of section 29B of the CRIMES ACT. He used an

ABC voucher to travel from his place of work to

his home or near thereto. The voucher was in the

name of another and was signed by Wescombe in that

name. It was for travel to another place, a

different suburb and was for travel for a different

purpose than that for which the voucher was said

to be used. The voucher was prepared by Wescombe,

and he had no authority to use that voucher for

travel to his home, that is to say, nobody in a position of authority said, "Well, go ahead and

use it anyway." The evidence was equivocal as

properly use taxi vouchers, whether or not issued by himself, but in view of the jury's verdict in relation to the other counts on the indictment	to whether and in what circumstances he could the voucher in his own name for the purpose of
carrying equipment home, as he said was his purpose
on the instant occasion, then he would not have
been convicted and, finally, the ABC made payment
on the particular voucher to the taxi company
in the sum of $10.90.

(Continued on page 26)

C2T16/2/MB	25	31/5/88
Wescombe

MR TEMBY (continuing):  Now, with respect, it is submitted

that most of the questions that arise in relation to

section 29B of the CRIMES ACT have been satisfactorily

settled largely by this Court's decision in

BACON V SALAMANE, which was decided in 1965 and

is reported in 112 CLR 85.

In my submission, it is clear, firstly, that

there must be a representation which is untrue to the knowledge of the person making it. Secondly,

it must be made with a view to obtaining a benefit

which can include a contractual benefit rather than

a direct financial benefit. Thirdly, that the

representation need not be made to the Commonwealth,

or an officer of the Commonwealth. Fourthly, that the

conduct by which the imposition is effected need not

result in loss to the Commonwealth and fifthly, that

it need not be proved that the representRtion was

believed.

Your Honours will understand that, from the

fourth and fifth of those points, this is not an
offence of, or tantamount to fraud, because to defraud
is to deprive by deceit. That means that the

misrepresentation, if that be the nature of the deceit,
must be believed and acted upon in such a way as to

cause loss.	It must be the causal connection, having the
two elements of belief and consequential loss.	It is submitted

that on the basis of what the section itself says and

what the decided cases say about it, neither of those

elements is necessary.

It is, however, suggested that that leaves

unsettled one question which is whether and how the

expression "imposes upon the Commonwealth" imports a

further requirement. We say that it does, but not one

which goes to the mind of the defendant, or which does

more than provide a necessary nexus between the conduct

in question and the Commonwealth, that nexus being

necessary for constitutional reasons. What I am

saying there, may it please the Court, is that if

one was considering legislation passed by a legislature

having full soverignty, then an offence - then a

provision which attached penal consequences to making

a false representation with a view to obtaining a

benefit would be perfectly conprehensible and adequate.

One can well imagine a legislature concluding that to

make a false representation with a view to obtaining a benefit is conduct which is wrongful and worthy of

punishment.

(Continued on page 27)

C2Tl7/l/JM	26	31/5/88
Wescombe

MR TEMBY (continuing):  The reason why there must be a

phrase such as "imposes upon the Commonwealth" is

because this is legislation passed by the federal

legislature and there must be a nexus with

Commonwealth activity. The purpose and effect of

the prhase "imposes upon the Commonwealth" is

simply to provide that necessary nexus.

BRENNAN J: That may be to describe the constitutional

purpose of it, but what is the nexus?

MR TEMBY:  Yes. With respect could I firstly seek to

demonstrate by reference to other provisions of the

CRIMES ACT what the nexus clearly cannot be, before coming to our suggestion as to what it is.

Sections 29A, Band C of the CRIMES ACT were introduced into the statute at the same tim~ as

I recollect it, in 1926. Section 29A which can attract

imprisonment for five years contains two offences,

each a false pretence offence and each importing

a requirement of intent to defraud. The Commonwealth

nexus there is that under section 29A(l):

Any person who, with intent to defraud,

by any false pretence obtains ..... any

chattel, money -

and so on, for himself is -

guilty of an offence.

Under section 29A(2):

Any person -

with like intent and in the same manner who

procures any money to be paid, or any

chattel -

and so on to be given to another person commits an

offence. So they are fraud offences and the

punishment is five years. 29B, the section with

which we are concerned, contains in its terms no

fraud requirement and the Court will see that the

imprisonment is two years. It has been said, it was

said certainly by Mr Justice Nicholson below and it

has been at least touched upon as a consideration

by Your Honour the Chief Justice and Mr Justice Deane

that it is unlikely that such punishment would

be imposed absent some dishonest intent or effect.

But if one goes to section 29C which contains

provision for the same penalty then Your Honours will

see that there is no requirement for dishonesty

which goes beyond the mere untruth or dishonesty

in effect or conclusion, because section 29C attaches

C2Tl8/l/SR 27 31/5/88

Wescombe

just the same penalty to conduct by way of untruth,

untruthful statement in the context of a claim

for a grant and so on. And accordingly if a

person applies for an old aged pension and makes

an untruthful statement as to age, to use the most

glaring example, it is not to the point that the

person would have been entitled to an invalid

pension and had a belief in that entitlement. And,

with respect, there is nothing much to choose in

terms of blameworthiness, between 29C and the
approach to 29B which we will be urging upon the

Court.

(Continued on page 29)

C2Tl8/2/SR	28	31/5/88
Wescombe

MR TEMBY (continuing): Finally, there is 29D which was

introduced relatively recently, I think, in 1985, which

is a general offence of defrauding the Commonwealth,

or a public authority under the Commonwealth, andthe,penalty for that is a fine of $100,000 or imprisonment for 10 years and no special

difficulties arise with respect to that offence.

That provision, as we would see it, as I have said,

to defraud, is simply to deprive by deceit. That last section has not been the subject of judicial consideration at any superior court level.

Now, with respect, it is submitted that because

the necessary intent as stipulated by section 29B

is:

to obtain money or benefit or advantage -

that precludes the conclusion that there must be

a further intent which is to do so dishonestly

in the sense of obtaining a benefit or advantage

which could not have been obtained in a licit manner

and that all that needs to be looked to, in terms

of intent, is whether the person was making the

representation, which was untrue, in a wilful

manner, that is to say, was behaving deceitfully

with the view to obtaining a benefit or advantage.

To go further and import the requirement that

there should be a knowledge in the defendant that

there was no entitlement to that which was obtained,

even if it was sought to be obtained in some .. different

manner, is to go beyond that which the section

requires. That brings me, of course, to the ·
nature of the connection between the conduct in

question and the Commonwealth and, it is submitted,

that all that is necessary is that there should

be placed upon the Commonwealth by the conduct

in question some burden or disadvantage.

I do not mean by that, with respect, loss such as would sound in damages in a contractual context,

but merely some burden or disadvantage. With

respect, if BACON V SALAMANE was correctly decided,

and my learned friend has not suggested it should
be overruled, then it would seem to practically

answer the present question. In that case the

convicted man gave a false name and said he had

no prior criminal convictions with a view to obtaining

employment with the Commonwealth. He did have

such convictions. He worked for the Commonwealth

for some three weeks, he obtained pay in exchange

for his work, not, let it be stressed, in exchange

for the untruth but in exchange for his work. There

was no evidence,, the.Court will not be surprised

to hear,that he was an unsatisfactory employee.

C2Tl9/l/MB	29	31/5/88
Wescombe

He was paid for his work, he was convicted under

section 29B and the conviction was ultimately

upheld in this Court. In that case there was

no suggestion of loss to the Connnonwealth. There

was, however, a burden to the Connnonwealth because

in consequence of the false representation the

Connnonwealth gave him employment, had him on the

payroll and made payments to him.

(Continued on page 31)

C2Tl9/2/MB	30	31/5/88
Wescombe

MR TEMBY (continuing): In consequence of what he did there

were things that were done by the Commonwealth

that can be sensibly described as a burden or an

inconvenience. Your Honour the Chief Justice,

I think, suggested the phrase "take advantage of 11 •

That is one with which we would not cavil so long

as it is considered in a broad context. In such

a context if I visit relatives unannounced because and want a cup of tea it may be said that I "take

advantage of" them. It may be said, in a broad

sense, I impose upon them. That is not to say

that I am causing them loss but I am putting them

in the situation where they would find it socially

awkward not to provide that which I seek to obtain

from them.

That is the sort of level of connection between

the Commonwealth and the conduct in question which, in my submission, is required by the phrase "impose

upon the Comm_onwealth". It is in terms of criminal

liability neutral, that is, we suggest, acceptable

becaus~ as I said at the outset, to attach criminal

consequences to the making of untrue representations

with a view to obtaining an advantage is not something

which shocks the conscience and it is to attach

such consequences to conduct very like the conduct

dealt with in section 29C. And as I am in the

course of saying, in BACON V SALAMANE, a situation

which was, of course, factually different but not

in terms of its consequences to be distinguished

from the present set of circumstances resulted

in conviction.

BRENNAN J:  Do you say then that it is an element of an element

under section 29B that the Commonwealth has done

something or abstained from doing something which

but for the untrue representation it would not

have done or would have done respectively?

MR TEMBY:  With respect, no, or, at least, not if the way

Your Honour has formulated the question there is

a requirement of a direct link which involves some

notion of either belief in the truth of what is

said or an obligation that cannot be avoided.

BRENNAN J:  I am not suggesting that. What I am suggesting

is that it seems to me that there are two basic

distinctions that can be made. One is that

"imposition" means the causing of the Commonwealth

to labour under a misapprehension. Nothing more

than that.	A mistake, in other words, which is
deliberately induced.	The other is that the

Commonwealth is caused to do something or to abstain from doing something whether by way of paying money

or passing any other property or doing any other

act. And as I understand it, what you say is that

C2T2O/l/ND	31	31/5/88
Wescombe

what is involved in 29B is the imposition by way

of causing the Commonwealth to do something or

to abstain from doing something.

MR TEMBY:  With respect, could I put it this way: what 1s

submitted is that in consequence of the acts of

the defendant, the Commonwealth is placed in a

position where it is inconvenienced and I put it

no higher than that. Say, for example, there have

been various cases in the State supreme courts,

all of which I think my learned friend has referred

to, which involve the use of credit cards issued

by the Commonwealth Bank which is an authority

under the Commonwealth. Somebody goes to a clothing

store and uses a Commonwealth bank card to obtain

clothes at a time when the bank card has no or
no sufficient credit limit upon it.

With respect, as a consequence of that, the person is said to have made an untrue representation

by simply handing over the credit card in
circumstances where there is not a sufficient credit

limit; he, of course, knowing those things.

(Continued on page 33)

C2T20/2/ND	32	31/5/88
Wescombe

MR TEMBY (continuing):  He does so with view to obtaining a

benefit or advantage, that is to say the clothes are

provided to him. The consequent, so far as the

Commonwealth is concerned, is not necessarily

financial loss. There is nothing in the cases that indicates that the prosecution must prove that the

Commonwealth Bank was obliged to make payment on the

voucher that it received from the store.	One would
imagine that ordinarily it would not be.

The Commonwealth is put in the position where it must

process the claim that comes to it and no more than

that. In that sense, there is an obligation or a

burden placed upon the Commonwealth.

BRENNAN J:	To engage in some conduct.
MR TEMBY:	To engage in some conduct.
BRENNAN J:	So that what you are saying is that for defrauding

you have an intention to cause property to pass, for

imposing you have an intention to cause conduct to

be engaged in and for simple deception you need not

have any intention to produce any conduct or any

passing property?

MR TEMBY:	That is, with respect, right, so long as one remembers that it is necessary that it should be done
with a view to obtaining an advantage.

BRENNAN J: Of course.

MR TEMBY:  Yes, that is right. Could I, in conclusion, take

the Court to the decision of Mr Justice Nicholson

below, upon which my learned friend placed such

reliance. He effectively adopted it as his argument.

I ask Your Honours to go to page 187 and page 188 of

the appeal book.

DEANE J:  Mr Temby, another way of approaching your argument -

and I am not suggesting this is right, but it supports

what you are putting - would be to say that the

section contains its own definition and that when it

says "imposes, or endeavours to impose upon, by",

what follows "by" is the definition of "relevantly

imposing upon".

MR TEMBY:  Yes. With respect, Your Honour,that would seem to

be right. Indeed, one can go further and say that
it would seem to follow that there are various ways

in which one can impose, one of which is by making

an untrue representation with a view to obtaining a

benefit, but that is necessarily imposition so

long as there is the nexus with the Commonwealth,

which remains there as an ever present requirement.

DEANE J:  So if you obtain the benefit on that approach by

reason of the untrue representation, it is irrelevant

C2T21/l/HS	33	31/5/88
Wescombe

to speculate whether you may or may not have obtained

it if you told the truth.

MR TEMBY:  Certainly that is right, but if I can stress it

again, so long as there is a sufficient nexus with

the Commonwealth. So if you are taking the word

"impose" for the moment in isolation, then everything

Your Honour says must be right. There is, however,

left the phrase "impose upon the Commonwealth",

which must be given meaning and content. It must

be the nexus with the Commonwealth, but there is no

difficulty in this case because the man was a

Commonwealth employee using a Commonwealth voucher

for, it was said, private purposes.

DEANE J:  That would imply, would not it, that the ultimate

burden of the benefit or advantage obtained must be

borne by the Commonwealth?

MR TEMBY:	Or, it may be even that the opportunity to do what was done arose from the Commonwealth, as for example,
Commonwealth employment.  On the argument that
Your Honour is suggesting, even that may be
sufficient.
DEANE J:	I do not see that.
MR TEMBY:	I do not think I need to go that far, but if one was

approaching it simply in that way you might even say

that that was enough, but I do not, with respect,

need to go that far.

(Continued on page 35)

C2T21/2/HS	34	31/5/88
Wescombe

MASON CJ:	Yes, Mr Temby:
MR TEMBY:	If I could take Your Honours to the dissenting

judgment below at pages 187 to 188 of the appeal book.

I am sorry, I did not realize that this case had been reported. At 187 point 5, His Honour makes the point

that there are other dictionary definitions of the

word "impose", including definitions which - and this

is my phrase, not his - contain more severe connotations

of the word than those relied upon by His Honour the

trial judge in charging the jury. It may be fairly said

in passing that those definitions, containing as they do

notions of deceitfulness and burden, are in no sense

inconsistent with the argument which the Crown is offering

now, or which the trial judge directed the jury consistently

with.

His Honour then goes on to say that it is unlikely

that in the context of a penal statute, such more

severe definitions - or connotations would not be required.

And, at one 188, line 5:

I have great difficulty in accepting a construction

of a section which leaves a citizen open to

conviction for an offence involving imprisonment in

circumstances where all that he has done is to

knowlingly make a false statement in order to obtain
a benefit to which he believes that he is entitled.

And I remind the Court, with respect, of the observations offered earlier in relation to section 29C, which may be

thought to answer that point.

His Honour goes on to make some observations about

claim of - I am sorry, can I take you back to the top of

the page?

If all that the legislature intended was to produce

the meaning adopted by his Honour, it is difficult to

understand why the word "impose" was used -

This is at the top of the paee -

at all, because the use of a more neutral expression

such as "obtains or endeavours to obtain" would

have been more than sufficient.

Now, that is, with respect, a strange observation because

the phrase "obtains or endeavours to obtain" is there in

the.section already and accordingly no benefit can be

derived from the fact that no more neutral expression was

used. It serves, in my submission, to underline the Doint

that the gravamen of the offence, the parts of the offence
that involve notions of intent or mens rea, are those which

have to do with the untrue representation which must be

knowingly or wilfully so, and theintent with which the

representation is made, but no more. And that is

C2T22/1/JM	35
Wescombe	31/5/88

consistent with the approach that the phrase

"imposes upon the Commonwealth" is there to

provide the necessary nexus and no more.

May it please the Court, those are our

submissions.

MASON CJ: Thank you, Mr Temby. Yes, Mr Wraith?

MR WRAITH:  The only submission I wish to make is that

the Court will observe that in BACON V SALAMA.NE

His Honour imported the word "knowingly" into

one of the elements where it does not exist

in the terms of the section itself, "knowingly
false". In my submission, what the Court is

being asked to do is to literally follow the

terms of the section, but what I am putting is

that in that case itself His Honour imported the

term "knowingly" into one of the limbs and that

limb, when read literally, of course, does not

include that expression.

MASON CJ: Yes, thank you, Mr Wraith. The Court will

adjourn for a short period of time in order

to consider what course it will take in this

matter.

T22	AT 11.-44 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.51 AM
MASON CJ:  We are not persuaded that the direction given

by the trial judge to the jury on the meaning of the word

"imposes" in section 29B of the CRIMES ACT 1914

was capable in the circumstances of this case,

particularly in the light of the re-direction

given to the jury, of giving rise to a miscarriage
of justice. The case is therefore not an
appropriate vehicle for the grant of special

leave.

The view I have just expressed is the view

taken by a majority of the Court. Therefore,

by majority, the decision of the Court is that

the application for special leave is refused.

AT 11.51 AM THE MATTER WAS ADJOURNED SINE DIE

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Wescombe