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:

C2Tl/l/MB

31/5/88

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"…

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.

Continue reading Wescombe v The Queen

Details

AGLC: Wescombe v The Queen [1988] HCATrans 104
Case: [1988] HCATrans 104
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal by Russell Ernest Wescombe against the respondent, The Queen. The dispute concerned the interpretation of the word "imposed" within section 29B of the Commonwealth Crimes Act.

The central legal issue before the High Court was the meaning of the word "imposed" as used in section 29B of the Commonwealth Crimes Act. The applicant argued that previous judicial interpretations, particularly from the High Court in *Hansen v Archdall*, suggested that the word "imposed" carried an element of dishonest intent. The applicant contended that no authority had definitively defined the term in the context of section 29B, and that prior cases dealing with the section had not been directly concerned with its precise meaning.

The applicant's submission, as presented to the Court, relied heavily on the dissenting judgment of Mr Justice Nicholson in the Victorian Court of Criminal Appeal. This judgment, and the applicant's argument, posited that the High Court's decision in *Hansen v Archdall*, although concerning a different Act, provided a definition of "imposed" that involved dishonest intent. The applicant argued that subsequent case law had not eroded this interpretation, even when dealing with different subject matters, and highlighted decisions from the Queensland Court of Criminal Appeal that had equated "impose" with dishonesty.

Orders