Young v GREEN - [2008] SASC 130

Supreme Court of South Australia
(Magistrates Appeals: Civil)
YOUNG v GREEN
[2008] SASC 130
Judgment of The Honourable Justice Bleby (ex tempore)
5 May 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Magistrates appeal against conviction – appellant convicted of five breaches of failing to comply with a direction to complete a census form – whether appellant’s tendered documents should have been admitted into evidence – whether person subpoenaed to give evidence should have been allowed to do so – whether pursuant to ss 10(3) and 11(1) the Statistician or authorised officer should have made an oral request that the forms be completed – whether appellant should have been cross-examined – whether Magistrate provided sufficient reasons – whether lack of accommodation of appellant’s hearing defect prevented him from conducting his case properly – appeal against conviction dismissed.
Appeal against sentence – whether Magistrate had taken irrelevant matters into account – appeal against sentence allowed – reduced penalty substituted.
Appeal against costs – whether appellant being a resident of and trial having taken place in Mount Gambier resulted in discriminating costs order – whether respondent’s compliance with its standard procedures could have resulted in no costs being incurred – appeal against costs allowed – substitute order made.

YOUNG v GREEN
[2008] SASC 130
Magistrates Appeal
BLEBY J (ex tempore)
Introduction

On 27 November 2007 the appellant, Mr Young, after pleading not guilty to the offences, was convicted in the Magistrates Court of South Australia, sitting at Mount Gambier, of five breaches of s 14(1) of the Census and Statistics Act 1905 (Cth) (“the Act”). On each count he was fined the sum of $33. He was ordered to pay the costs of the prosecution, together with the court costs, amounting to $2,298. Mr Young appeals against the convictions and penalty and the award of costs.
The relevant legislation
Section 14 of the Act provides:
Failure to answer questions etc.
(1)     A person commits an offence if:
(a) the person is served a direction under subsection 10(4) or 11(2); and
(b)     the person fails to comply with the direction.
Penalty:     One penalty unit.
(2)     Subsection (1) is an offence of strict liability.
Note 1:For strict liability, see section 6.1 of the Criminal Code.
Note 2:A person commits an offence in respect of each day until the person complies with the direction (see section 4K of the Crimes Act 1914).
(3)Subsection (1) does not apply in relation to a person’s failure to answer a question, or to supply particulars, relating to the person’s religious beliefs.
Note:A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Mr Young was convicted of five offences alleged to have occurred on about 3 October 2006, 4 November 2006, 4 December 2006, 4 January 2007 and 4 February 2007. Apart from the dates, each offence was identical, namely –
Being a person who was served with a direction under subsection 10(4) of the Census and Statistics Act 1905 (Cth), namely a “Notice of Direction” requiring him to complete and return a Census Form within 15 days of service, refused to comply with the direction.
Section 10(4) of the Act empowers the Commonwealth statistician to –
(4)… by notice in writing served either personally or by post on a person, direct the person:
(a)     to fill up and supply, in accordance with instructions contained in or accompanying a form accompanying the notice, within such period after the service of the notice, being not less than 14 days, as is specified in the notice, the particulars specified in that form; and
(b)     to cause the form so filled up to be furnished to the Statistician, or to an authorized officer, in accordance with those instructions.
One penalty unit, being the maximum penalty which can be imposed under s 14(1), is $110.[1]
[1]    Crimes Act 1914 (Cth), s 4AA.
It will be noted that an offence against s 14(1) of the Act is an offence of strict liability. Section 6.1 of Criminal Code (Cth) provides:
6.1     Strict liability
(1)If a law that creates an offence provides that the offence is an offence of strict liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)     the defence of mistake of fact under section 9.2 is available.
(2)     If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a)    there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3)     The existence of strict liability does not make any other defence unavailable.
Section 9.2 provides:
9.2 Mistake of fact (strict liability)
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b)had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a)he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b)he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
It will also be noted that the effect of s 21 of the Act and s 4K of the Crimes Act 1914 (Cth) is that a person commits an offence against s 14(1) of the Census and Statistics Act in respect of each day until the person complies with the direction. In Mr Young’s case it was alleged that there was a continuing failure on the days alleged to comply following the service of one direction under s 10(4). However, he was only charged with breaches in respect of the days mentioned above.
The facts
The evidence before the Magistrate showed that Mr Young received a household census form for the national census conducted on 8 August 2006. He declined to complete the form and returned the uncompleted form, together with a letter of objection dated 8 August 2006, in a sealed envelope to the census collector.
The complainant was unable to produce Mr Young’s letter and the uncompleted census form. It seems to have been mislaid or lost somewhere within the Australian Bureau of Statistics. It no longer forms part of the file relating to the appellant. A copy of Mr Young’s letter was included in a book of documents marked for identification by the Magistrate D1 but not received in evidence by the Magistrate as evidence relevant to his conviction. MFI D1 was received by the Magistrate and marked Exhibit D1 for the purpose of determining the penalty.
However, it is possible to infer from Mr Young’s later correspondence, referred to below, that in his letter dated 8 August 2006 he raised certain privacy issues as being the reason that he did not complete the census form. The Bureau did not acknowledge or respond to his first letter.
The computer record of the Australian Bureau of Statistics indicates that there was a follow-up visit to Mr Young by an area supervisor of the Bureau on 22 August 2006. Any such visit was denied by Mr Young. Counsel for the complainant at the hearing before the Magistrate acknowledged that the record was incorrect and that no such visit occurred.
On 14 September 2006 a direction under s 10(4) of the Census and Statistics Act was sent by post to Mr Young. The necessary formalities regarding its authorisation, preparation and posting were proved at the trial. Mr Young admitted having received that letter. The letter directed Mr Young to complete the Census Household Form enclosed with the letter and to return the completed form to the delegate of the Australian Statistician within 15 days of service of the notice. The direction was made under and in conformity with s 10(4) of the Act. The notice pointed out that s 14 of the Act provides that failure to comply with the direction could result in a fine of $110 for each day that the information was not provided.
Mr Young returned the census form enclosed with the notice, uncompleted. It was accompanied by a letter dated 26 September 2006. In the letter he noted that the Bureau had not acknowledged his letter of 8 August 2006. He acknowledged having received the notice on 18 September 2006. He pointed out that no effort had been made to address the privacy issues which he had raised relating to the census and that he had not received any acknowledgement from an ABS area supervisor or representative. He repeated briefly his concerns about privacy concerning this census which he claimed was different from previous censuses the forms for which he had completed. He concluded:
I am acting in good faith in accordance with my conscience and the morality that forms the basis of my core beliefs. Furthermore, I also declare that I cannot comply with your Notice of Direction, until such a time that the ABS reviews its position in relation to restoring the rights of Australian citizens to optionally exempt themselves from participating in the Census under S.14(1) of the pre-April 3^rd 2006 version of the Act on reasonable grounds.
At the trial Mr Young admitted that he had not completed or returned the census form. He was not unwilling to do so, but his reason for refusing was that he could not be and had not been assured that his privacy would be protected.
As I understand it, his principal concern was his belief that for the first time the 2006 census was used to create what is known as a Statistical Longitudinal Census Dataset which links information about people from one census to the next. Rather than being merely a five yearly “snapshot” of the Australian population, this census, he believed, could be used to identify changes in individual lives from one census to the next.
The appeal against conviction
In order to prove the case against Mr Young the prosecution was required to prove:
(a)That Mr Young was served with a direction in writing from the statistician or his delegate;
(b) That the direction was made under s 10(4) of the Act; and
(c) That Mr Young failed to comply with the direction.
I have already said enough to indicate that each of those elements was proved before the Magistrate beyond reasonable doubt. The offence is a strict liability offence, but the defence of reasonable mistake of fact is available in an appropriate case. However, that cannot have arisen in the circumstances where Mr Young was fully aware of what he was doing or refusing to do. The fact that he may have had a reasonable excuse for declining to comply with the notice under legislation affecting earlier censuses does not excuse his failure to comply with a valid notice under s 10(4) of the present Act. If there was such a change in the legislation, that was a decision of Parliament by which we are all bound, whether we agree with the amendment or not.
I turn to consider the grounds of appeal alleged in Mr Young’s notice of appeal. His first ground is that the “evidence” which he tendered was not allowed as evidence. By this he refers to the book of documents MFI D1 which the Magistrate refused to admit as evidence on the conviction. The Magistrate rejected the tender on the ground that most of the documents were not relevant to any issue arising on Mr Young’s plea of not guilty to the offences. I have looked at the documents in MFI D1 myself. I agree with the Magistrate that the documents were not relevant, and that if they had been admitted, it would have made no difference to the Magistrate’s finding that the charges were proved beyond reasonable doubt.
MFI D1 did contain a substantial amount of information relevant to any penalty to be imposed by the Magistrate, and the Magistrate admitted the documents for that purpose. He took note of them in fixing the penalty he did and in assessing the amount of costs ordered to be paid by Mr Young.
The second ground of appeal is that a person subpoenaed to give evidence by Mr Young was not allowed to give evidence. The person concerned was the area supervisor, Ms Venetia Langlands. By virtue of a summary of facts served on Mr Young before the hearing, Mr Young understood that part of the prosecution case would be that Ms Langlands had visited the appellant on 22 August 2006. Mr Young disputed the accuracy of the Bureau’s records. Indeed, it was one of his complaints that no-one had come to talk to him about the reason for his refusal to complete the census form. By reason of the concession earlier referred to and made at the trial, it was acknowledged that the record was inaccurate and that no such visit had occurred. It was therefore not necessary for Ms Langlands to be called. It would appear that she could not contribute in any other way to the evidence concerning Mr Young’s guilt or innocence, whatever she may have been able to say about the record-keeping of the Bureau.
The third ground of appeal is that the “precursory elements” were not taken into consideration prior to legislation being enacted. It would appear from the evidence given by Mr Young before the Magistrate that the precursory elements to which he refers relate to the powers contained, particularly in ss 10(3) and 11(1) of the Act for the Statistician or authorised officer to make an oral request that forms be completed. As I understand his position, Mr Young considers that that was an appropriate, if not an essential, prerequisite to the giving of a formal notice under s 10(4) of the Act, and that it did not occur in his case. Had it occurred his concerns as to privacy may have been assuaged, or at least the Bureau could be better informed of his reasons. He relies on what is said to be the current practice of the Bureau in requiring an area supervisor to visit a householder at least once after a refusal report has been generated, as it was in the case of Mr Young.
It may well have been desirable practice to ensure that Mr Young was visited before action was taken under s 10(4) of the Act. The Magistrate found that that was not done. There was every justification for that finding. However, there is nothing in the Act which makes it a legal requirement that such a visit be undertaken before a notice is served. That omission cannot therefore affect the guilt or innocence of Mr Young of these offences. I will return to that omission when I come to deal with the question of costs.
The fourth ground of appeal is that the prosecution did not cross-examine Mr Young. Cross-examination is never compulsory. Given the admissions that Mr Young made during the course of the hearing and by virtue of the correspondence he had written to the Bureau, the prosecutor obviously took the view that the case against Mr Young was satisfactorily proved without asking him any further questions. The prosecution was entitled to take that view. This is not a valid ground of complaint.
The fifth ground of appeal is that the Magistrate did not sufficiently explain why the defence was not admissible or why it was incorrect. The Magistrate did give reasons for the finding that each offence was proved beyond reasonable doubt. The Magistrate referred in those reasons to the essential elements that had been proved. I agree with the written submission of counsel for the respondent that the Magistrate provided sufficient reasons to enable the parties to understand the basis of the decision, and that as such there was no error of law.
The final ground of appeal is that due to a hearing defect, Mr Young found it difficult to understand at times what was being said and asked of him. He alleges that he previously asked the Court to be within 1.5 metres of him, e.g. in round table fashion, which was not sufficiently carried out. In the absence of any further evidence as to the conduct of the trial, I can only judge what occurred by a reading of the transcript. A full transcript was taken. There is no reference to any request for a different style of hearing, nor is there any suggestion by Mr Young’s answers to questions that he did not understand or was having difficulty in hearing the questions being asked of him. There was no request to repeat information.
In my opinion none of these grounds can succeed in interfering with the Magistrate’s finding that the five charges had been proved beyond reasonable doubt.
The Magistrate entered convictions on all five counts. In my opinion, it was appropriate to do so. The offences were deliberate, albeit for a reason that Mr Young thought was justified. Accordingly, the appeal against the convictions must be dismissed.
The appeal against sentence
In imposing the sentence the Magistrate appears to have taken into account two matters which were not relevant. In the first place, the Magistrate referred to the fact that Mr Young had refused to comply with two notices. It appears that the Magistrate may have taken the view that the failure to comply with a second notice in some way exacerbated the offending. In fact, the Magistrate was incorrect. Only one notice was ever served on Mr Young.
The second irrelevant matter taken into account is the content of the letter that the appellant wrote to the Bureau on 8 August 2006 in returning his original census form. The Magistrate took the view that there was a “logical conflict” between what Mr Young said in that letter and what he wrote in the second letter dated 26 September 2006. That may well be so. However, the first letter was not in response to the notice issued under s 10(4) of the Act. At that time the notice had not been issued. The offence with which Mr Young was charged was not an offence of failing to complete the census form that he returned with his letter of 8 August 2006. It was an offence of failing to comply with the notice issued on 14 September 2006. Whatever views Mr Young may have expressed on 8 August for refusing to complete the census form, they were not particularly relevant to his reasons for not complying with the notice. Those reasons were clearly expressed in his letter of 26 September 2006. Yet the Magistrate seems to have taken into account, against Mr Young, the contents of his first letter.
It appears that for these reasons the Magistrate described Mr Young as having a “deep-seated” resentment at being required to comply with the notice. In that respect I think the Magistrate erred. Mr Young had a deep-seated and conscientious concern about matters of privacy associated with the treatment of the census data. As I understand it, he appreciated his obligation as a responsible citizen to supply accurate information for statistical purposes provided that his right to privacy was respected. He was not reckless and irresponsible in his failure to comply with the notice. He may have had a misguided view that his concern was sufficient to excuse him from compliance, when it was not.
I consider that the Magistrate erroneously took some irrelevant matters into account and that this may have led him into error in imposing the penalties that he did. The penalties imposed were almost one third of the maximum. Having reviewed all the information put before the Magistrate by Mr Young, I cannot find that Mr Young resented the notice or that his attitude to complying with it was irresponsible. It was misguided.

Mr Young has no relevant prior convictions. For a first offence and in all the circumstances relating to the offence and to Mr Young’s personal background, in particular his responsible community attitudes, I consider that an appropriate penalty for each offence is a fine of $15.
Costs
The Magistrate ordered that Mr Young pay the following:
Counsel fee, including preparation and
counsel fees based on length of trial   $1,000
Pre-trial conference attendance fee  $150
Attendance fee on judgment
(day following the trial)  $150
Air travel – prosecutor  $294
Witness fee  $110
Witness flight expenses  $450
Court costs  $144
Total  $2,298
The Magistrate awarded only half the cost of the witness’s travel expenses because Mr Young was “successful in showing inaccuracies in relation to record keeping and the loss of documents”.
I have two concerns about the award of these costs. In the first place, they are substantially increased because Mr Young is a resident of and the trial took place at Mt Gambier. The Australian Bureau of Statistics, on whose behalf and at whose cost proceedings were taken, is a statutory authority of the Federal Government. It carries out its functions throughout Australia. Some of those costs would not have been incurred if Mr Young was resident in Adelaide or Melbourne. There is a significant element of discrimination in practice in the award of costs based solely on the residence of the accused.
In the second place, the standard procedures adopted by the Australian Bureau of Statistics upon a report of a refusal to complete a census form were not followed. Under normal circumstances, Mr Young could have expected a visit from an area supervisor and a discussion about his concerns. There was no suggestion that any such visit would have been met with opposition, violence or any other form of resistance. Indeed, on Mr Young’s evidence it would have been welcomed. Had it occurred, Mr Young’s fears may have possibly been allayed. At least there would have been a reassessment by the Bureau as to whether or not to issue the notice under s 10(4) of the Act. The Bureau’s compliance with its own procedures may have resulted in none of these costs being incurred.
While Mr Young’s response to the notice made clear that he had no intention of completing the form, the Bureau may well, thereafter, have been justified in the view that any personal approach at that stage would have been pointless. The point is that the standard procedure which would normally have been taken before the issue of the notice was not taken.
While the complainant is entitled to be awarded some costs of the prosecution, the two grounds I have mentioned require that the order for costs should be significantly less than was in fact ordered by the Magistrate. One cannot predict what might have happened if the Bureau’s normal practice had been followed. After taking into account discriminatory aspects of the order and some account of the chance that no costs would have been incurred at all, I consider that the appropriate order would have been that Mr Young pay the prosecution costs fixed at $900 plus court costs of $144.
Conclusion
For the reasons I have given I make the following orders:
1That the appeal against the convictions be dismissed and that the convictions do stand.
2That the appeal against penalty and costs be allowed.
3That the orders of the Magistrates Court made on 27 November 2007 imposing the fines and ordering the payment of costs by the appellant be set aside.
4That there be substituted in lieu thereof:
(a) a penalty of $15 in relation to each of the offences, making a total of $75;
(b) that the appellant pay the costs of the complainant of the prosecution fixed at $900 plus court fees of $144.
5That there be no order as to the cost of the appeal.