Yates v Wilson

[1989] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S38 of 1989

B e t w e e n -

FRANKLYN ERNEST YATES

Applicant

and

BERTRAM WILSON

First Respondent

and

NICHOLAS ERNEST BURY

Second Respondent

and

DIRECTOR OF PUBLIC PROSECUTIONS

(COMMONWEALTH)

Yates

Third Respondent

Application for special leave to

appeal

MASON CJ TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 9. 4 7 AM

Copyright in the High Court of Australia

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MR P. ROBERTS:  In this matter I appear for the applicant,

if the Court pleases.	(instructed by Horowitz &
Bilinsky)

MR M.S.WEINBERG, QC: If the Court pleases, in this matter

I appear together with my learned friends,

MR H.A. AIZEN and MISS E. FULLERTON, on behalf of

the second and third named respondents to the

application.	(instructed by the Director of Public
Prosecutions)	We understand there has been a

submitting appearance filed on behalf of the first

named respondent.

MASON CJ: Yes, Mr Weinberg. I am not in a position to

confirm or deny suggestion that a submitting

appearance has been filed but one would perhaps

expect that that is the situation.

MR WEINBERG:  We did make that inquiry of the Registry and were assured that that was the case.

MASON CJ: Thank you. Yes, Mr Roberts.

MR ROBERTS:  Your Honours, for well over 200 years, and on one

view over 400 years, the English and Australian law

has been familiar with the statutory crime of false

pretences. It is a crime which traditionally was

concerned with the fraudulent obtaining of property.

The Connnonwealth inserted a false pretences provision

in its legislation in the year 1926 and one of the

words utilized, the subject-matter of obtaining, was

the word "benefit". According to the court below,

the insertion of that single word overturned the
traditional nature of the crime and removed it from the

area of obtaining property and, indeed, gave its

judicial imprimatur to the insertion of the crime

of false pretences into the area of revenue law. It
apparently is now a crime, false pretences, to
fraudulently give or say that you have a tax number,

a registered tax number, and obtain the non-levy of

taxation by means of so doing.

The applicant submits that an examination of

the history of the offence of false pretences,
together with an examination of the language that was
used in the provisions of 1926, will inevitably lead
to a conclusion that the decision of the majority of

the court below was in error. We further submit that

the majority also erred in its application of the

rules of statutory construction in relation to

language which, at best, is ambiguous. At worst, we

say - our point of view is it clearly does not

relate to the non-levy of tax.

If I could very briefly take Your Honours to a

potted history of the section - of false pretences -

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if I may. Can I hand to Your Honours- - -

MASON CJ:  Mr Roberts, you do encounter a threshold difficulty

and that threshold difficulty is that this Court

has stated in the clearest terms in the past that it

is only in an exceptional case that it would consider

granting special leave in relation to a question

agitated under the AD(JR) ACT arising from the

committal of the applicant for trial.	And you have
to overcome that hurdle.	So you might deal with

that perhaps initially, before you come to the

substance of the point that you wish to argue.

MR ROBERTS:  Cert~inly, Your Honour. Because this issue was

raised as a threshold issue initially before the

primary judge and reliance was had by the applicant

at that stage on SANKEY V WHITLAM - - -

MASON CJ: It was a different issue before the primary judge.

The primary judge had a discretion under the AD(JR)

ACT and, of course, that discretion became the subject

of argument in the Full Court of the Federal Court.

But quite apart from that discretion, there is the

question as to how this Court should exercise its

jurisdiction to grant special leave to appeal and in

the case of VEREKER V O'DONOVAN we made it perfectly

clear that it would only be in an exceptional case

that we would contemplate granting special leave to

appeal in a situation of this kind.

MR ROBERTS:  Yes. My recollection of that special leave

application was - and I stand to be corrected - that

the stage that the matter had reached at that stage

was one of a finding of a prima facie case.	I do
not think that - - -

MASON CJ: Yes, that is correct.

MR ROBERTS:  Your Honours, of course here it is different. The

matter was concluded by the magistrate; he committed

for trial.	The argument of the applicant was, I
should not have been committed for trial because there
was no offence made out.	And this, of course, was one

of the matters which this Court adverted to in

SANKEY V WHITLAM in 142 CLR 1 as being one of the

situations in which the Court could see that it would

be appropriate to intervene.

Now, Your Honours, we would submit in this case

that the applicant facing a lengthy trial before a
jury in relation to this matter, it would be

appropriate if there were no offence for a court to

say so before a person has to undergo a lengthy and

expensive trial process. The other point, of course,

is that if Your Honours decline to intervene at all,

then the decision of the court below will virtually

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be set in cement henceforth and that will be the

law for all intents and purposes unless and until

some other case arises.

MASON CJ: That is the risk that an applicant runs when an
applicant seeks review under the AD(JR) ACT.

MR ROBERTS:  Certainaly, Your Honour. Of course, the

position that faced us at the time that the application

was lodged was that LAMB V MOSS was, and still is, law

for Australia in relation to the JUDICIAL REVIEW ACT

and, of course, at that time the cross-vesting

legislation was not in force and the applicant had,

on one view at least, no choice but to approach the

Federal Court. The Federal Court was approached both

under the JUDICIAL REVIEW ACT and section 39B of the

JUDICIARY ACT. Jurisdiction was invoked on both

counts.

It was not a matter of a choice necessarily on

legisaltion has come into force. But,

our part, but as we saw it there was no option but vesting

to approach the Federal Court in those circumstances.

Your Honours, as we saw it at that stage there was no

other remedy available to seek relief from the

committal other than approaching the Federal Court.

Traditionally, since the JUDICIAL REVIEW ACT has been

in force, that Act has been invoked, and laterly,

section 39B of the JUDICIARY ACT, and we invoked both

of those jurisdictional heads to attempt to obtain

relief from the Federal Court.

So we would submit, Your Honours, in the special

circumstances of this case it should not be an

impediment to this Court granting this application.

That is my answer in relation to that, if

Your Honours please.

May I take Your Honours shortly to the history?

MASON CJ: Yes.
MR ROBERTS:	Could I just hand up a bundle of material, four

copies. Your Honours will see that the first

document in the bundle is Act No 9 of 1926 which

inserted section 29A	into the Commonwealth
CRIMES ACT	and that provision has not been amended

to date so we are dealing with the same provision.

It was one of a number of provisions that were

inserted at that time and 29A, 29B and 29C dealt with

false pretences, false representation being a two-year

imprisonment offence, and section 29C, statements in

relation to applications for payments.	I will come
to the wording, if I may, in a moment.

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Your Honours, the history of this offence can be seen in the extract of Halsbury, third edition,

volume 10. It is appended to Your Honours' papers.
Your Honours will see that as at 1955 when the

third edition was printed the relevant offence in

England was under the Larceny Act, and under the

footnote (f), the authors of Halsbury give a potted history of the history of false pretences which led

up to the Larceny Act, and Your Honours will see that

the first statute against false pretences was passed

in 1541 to 1542, in slightly different wording from

the later provision, and this was followed in 1757

by the statutory offence of false pretences in terms

similar to that which it became known in more modern

times. Various enactments followed by which the

offence was refined and it ended up in England at
least with the Larceny Act which was in force up until

recent times when the English Theft Act came into force.

The reason that this offence was created was

referred to in the decision of KILHAM which Your Honours

have before you in 11 CLS 561, a decision in 1870, and

if I could just ask Your Honours to turn to the

judgment of Chief Justice Bovill at page 564 where

His Honour gives a little bit of history and tells us

the reason that the offence was created. He is

referring to the earlier Victorian statute which was

under review at that stage:

The stat. 24 & 25 Vict.c.96,s.88, enacts -

and His Honour sets it out.

The word "obtain" in this section does not mean obtain the loan of, but obtain the

property in, any chattel -

et cetera.

This is, to some extent, indicated by the proviso "that if it be proved that the

person indicted obtained the property in

such manner as to amount in law to larceny,

he shall not, by reason thereof, be entitled

to be acquitted;" but it is made more clear

by referring to the earlier statute, from

which the language of the 88th section is

adopted. The 7 & 8 Geo.4, c.29, s.53,

recites that "a failure of justice frequently

arises from the subtle distinction between

larceny and fraud," and "for remedy thereof

enacts that if any person shall by any false

pretence obtain, etc." The subtle distinction

which the statute was intended to remedy was

this, that if a person by fraud induced another

to part with the possession only of goods and

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converted them to his own use, this was larceny, while if he induced another by fraud to part with the property in the

goods as well as the possession, this was

not larceny. But to constitute an

obtaining by false pretences it is equally

essential, as in larceny, that there should

be an intention to deprive the owner wholly

of his property, and this intention did not

exist in the case before us.

If I could ask Your Honours just briefly to turn to

Stephen's "A History of the Criminal Law of England",

volume III. I have included a couple of extracts

from chapter XXVIII, History of the law relating to

theft and similar offences, and the second page of

the extract which is 122, at about point 3 of the

page:

The present chapter, then, has for its

subject offences consisting in the fraudulent

misappropriation of property. No branch of

the law is more intricate, and few are more
technical. In order to understand it fully

it is necessary to mention one well-known

prirciple as to property and proprietary rights.

And His Honour goes on to mention that principle in

relation to property. One other matter I would seek

to draw Your Honours' attention to in relation to

this, in Stephen's - when he dealt with the question

of false pretences which commences at page 160, which

is also extracted, he goes on to talk about one of

the peculiarities of the offence and at page 162,

which is extracted, at the top of the page:

The oddest of them is that the terms, "chattel,

money, or valuable security," do not include

things which at common law were not the subject

of larceny, and that therefore it is not an

offence to obtain two pointers -

that is pointer dogs -
worth 5 pounds each by a false pretence.
That is a reference to a case called ROBINSON.	But

relevantly, Your Honours will see that the offence

was concerned with things which at common law were

the subject of larceny and the nexus with larceny

is historical, it is obvious, it is the reason that

the offence was created. A similar position appears

to pertain in Australia. I have extracted the fourth

edition of Howard, there is a fifth edition, but it

relevantly does not matter, and there is a definition of

"ownership" not "possession" in Howard which does not

add a great deal to the matter.	I have just placed it
in there for comparison purposes.

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Your Honours, if I could ask Your Honours to

compare, if you would, the extract from Halsbury

where it gives section 32 of the Larceny Act - that

is on page 821 which is the first page of the

extract from Halsbury - if one compares that to

section 29A of the Commonwealth CRIMES ACT, one can

see the obvious origin of the words that were

utilized, the difference being that the Commonwealth

in its provisions has split the two concepts of

somebody obtaining property himself in subsection (1)

and then obtaining property for another in

subsection (2).

But Your Honours will see that the words

utilized in the English provision "obtain from

another", "chattel, money or valuable security",

and then the second concept, "cause", "procure any

money to be paid", "chattel", "valuable security to

be delivered to himself or to any other person". provisions, 29A(l) and 29A(2), as modified of course,
because the Commonwealth was the person from whom

the obtaining was to occur. The only relevant

different was the insertion of one word and that

is "benefit".

Now, we submit, Your Honours, that the word

"benefit" obtains its meaning from the surrounding

words. There was no intention, we would submit, in

1926 to overturn the whole of the property offence of
false pretences by the mere insertion of a single

word "benefit", and perhaps what the legislature had in mind was things that the Commonwealth can

give which may or may not fall within the concepts

of chattels or money, perhaps vouchers, for example,

would be an example, but there are numerous examples

that one can think of. His Honour Justice Einfeld

in his dissenting judgment has given what

His Honour at least considered to be examples of modern day benefits.

But we would suggest that by the insertion of

one word, "benefit", the legislature could not have

had in mind the encompassing of the non-payment of

tax which has got nothing at all to do with the

passing of property.

TOOHEY J:  I am not clear, Mr Roberts, quite what you are

saying. Are you saying that there cannot be a

benefit within 29A unless there has been a passing

of property or a passing of possession?

MR ROBERTS:  Yes, a passing of property. The section is

concerned with property. Traditionally it is

concerned with the passing of ownership and the

subject-matter of false pretences is property. So

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both of these concepts are entwined within the

concept of false pretences. So it is concerned with

an individual obtaining by false pretences some item

of property from the Commonwealth Government and it

is concerned with obtaining the ownership as opposed

to mere possession. Now, those concepts have

nothing at all to do with the levying of income tax.

This apparently is the first occasion, to my knowledge,

the first reported case at least, in which the

Commonwealth has sought to apply this particular

provision to the revenue setting.

It appears, one would have thought, to be

entirely inapposite and hithertofore it has not been

suggested that the person who makes some false

representation and thereby does not pay his tax is

guilty of an offence of false pretences, whatever

else he may be guilty of. Of course, there are

remedies under the TAXATION ADMINISTRATION ACT and the

like to deal with the subject-matter of the wrong

doing which is alleged against my client.

Your Honours, at the very least we would say that

the word "benefit" is a word of ambiguity and if I

could refer Your Honours to this Court's decision in

MURPHY V FARMER, 165 CLR - that is the last document

on Your Honours' list - I have extracted just one
page, page 29 of the joint judgment of Justices Deane,
Dawson and Gaudron, and there Their Honours said that:

if the words are merely equally capable of a construction that ..... would not, inflict the penalty -

citing from DICKENSON V FLETCHER, then the

provision should not be construed to add to the list
of offences because to do so, in effect, is making an
offence by construction, and that is totally

inappropriate for the Australian criminal setting.

We would submit that it is the correct approach. It

was not one that was adverted to by the court below,

it should have been, and if they had adopted that approach

we would submit that if they came to tne question of

the provision being ambiguous, if they were not

convinced on its historical analysis, _then the

decision would have gone to the applicant and it would

have been held that section 29A had no application to

the subject-matter of these offences.

Your Honours will also see that the lesser

offence of imposition, under section 29B, uses the

collocation of words "benefit or advantage" and that
collocation of words, of course, imports different

concepts to this and obviously refers to different

factual matters, and the use of the word "advantage"

together with "benefit" in 29B is some indicia at

least that the legislature did not mean "benefit"

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to mean "advantage" in section 29A. For those reasons we submit that the decision is clearly

wrong and that Your Honours should grant this

application.

MASON CJ:  Thank you, Mr Roberts. The Court need not trouble

you, Mr Weinberg.

It would require an exceptional case to

warrant the grant of special leave to appeal in

relation to a review by the Federal Court of a

magistrate's decision to commit a person for

trial. The undesirability of fragmenting the

criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should inhibit the Federal Court from

exercising jurisdiction under the ADMINISTRATIVE

DECISIONS (JUDICIAL REVIEW) ACT and as well inhibit

this Court from granting special leave to appeal.

The applicant has not shown that this is an

exceptional case. True it is that a decision on

the point of law to be argued by the applicant

might result in finality in the committal

proceedings but this does not make the case

exceptiona.l. The application for special leave to

appeal is therefore refused.

MR WEINBERG:  If Your Honour pleases, we would ask for costs.

MASON CJ: What do you say about that, Mr Roberts?

MR ROBERTS:	I cannot say anything, Your Honour.
MASON CJ:	The application is refused with costs.

AT 10.14 AM THE MATTER WAS ADJOURNED SINE DIE

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