R v Harry Phillip Hall Scc [1992] ACTSC 27; (1992) 106 FLR 458 (25 March 1992)

SUPREME COURT OF THE ACT

THE QUEEN v HARRY PHILLIP HALL
S.C.C. No. 36 of 1989
Criminal Law - Statute
[1992] ACTSC 27; (1992) 106 FLR 458

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Criminal Law - Allegation of fraud - Trial by jury - Indictment - Whether Aboriginal Corporation for Sporting and Recreational Activities a "public authority under the Commonwealth" - Whether offence committed - Plea of not guilty - Crimes Act 1914 (Cth) s.29D.

Statute - Interpretation - "Public authority under the Commonwealth" - Crimes Act 1914 (Cth) s.3.

Crimes Act 1914 (Cth), s.3, s.29D

Aboriginal Councils and Associations Act 1976 (Cth)

Associations Incorporation Act 1953 and 1991 (ACT)

R v Lockett (1980) 27 ALR 444

Jacobsen v Piepers (1980) 32 ALR 293

Bryce v Curtis (1983) 51 ALR 73

HEARING

CANBERRA
25:3:1992

Counsel for the Crown: Mr G. Lalor

Instructing solicitors: Director of Public Prosecutions

Counsel for the Accused: Mr C. Kilduff

Instructing solicitors: Aboriginal Legal Service

ORDER

1. A verdict of acquittal be recorded on each count in the indictment.

DECISION

During the course of the trial of this matter, on 12 March 1992, I ruled that the Aboriginal Corporation for Sporting and Recreational Activities (ACSRA) was not "a public authority under the Commonwealth".

2. The accused had presented against him an indictment charging 11 offences against s.29D of the Crimes Act 1914 (Cth). Each count was in similar terms. Each relied on an allegation that ACSRA was "a public authority under the Commonwealth". The offences were alleged to have taken place between 1 January 1986 and 24 April 1986.

3. As at 25 October 1984, s.29D provided as follows:-
"A person who defrauds the Commonwealth or a public

authority under the Commonwealth is guilty of an
indictable offence.
Penalty: $50,000.00 or imprisonment for five years or
both."

4. The penalty was increased to "$100,000.00 or imprisonment for 10 years" on 24 June 1986.

5. At the time of the alleged offences s.3 of the Crimes Act 1914 defined "public authority under the Commonwealth as:-

"...any authority or body constituted by or under a law of
the Commonwealth or of a Territory."

6. From 1 July 1989 that definition was altered expressly to include AUSSAT Pty Ltd and OTC Limited.

7. Mr Kilduff, for the accused, applied for a directed verdict on the basis that the evidence to be adduced by the Crown as to the status of ACSRA would not support a conclusion that it was a "public authority under the Commonwealth".

8. Mr Lalor, for the Crown, produced the documentation that would evidence the formation of ACSRA. It appears from that evidence that ACSRA is a body corporate established in pursuance of s.45(1)(a) of the Aboriginal Councils and Associations Act 1976 (Cth). It was incorporated on 19 January 1984. The registered rules of ACSRA make it plain that it is a private association of Aboriginal persons formed to encourage sporting activities by Aboriginal people in the Canberra region. It is a non-profit association.

9. It was, in 1985, offered, and accepted, a grant to maintain Boonamulla Oval at Narrabundah. The monies allegedly diverted by the accused, then its Public Officer, are monies provided to ACSRA for the maintenance of the oval. The allegation was that ACSRA received those monies. Cheques were written for expenses but the proceeds of those cheques, it was alleged, were not used by the accused for the stated purpose.

10. Unless ACSRA is capable of being found to be a "public authority under the Commonwealth", the accused cannot be guilty of offences against s.29D of the Crimes Act 1914 (Cth).

11. It is obvious that not every body corporate formed by or under a Commonwealth or Territory law will be a "public authority". It is also clear, however, that a body corporate formed by or under a State law cannot be a public authority under the Commonwealth.

12. In R v Lockett (1980) 27 ALR 444, Zelling J. accepted that the Commonwealth Trading Bank was a "public authority under the Commonwealth". He did so in the following terms:-

(446-7) "Mr O'Halloran (for the accused) declined to
argue that the Commonwealth Trading Bank was not a "public
authority under the Commonwealth". Accordingly, this
judgment does not deal with the proposition as to whether
the Commonwealth Trading Bank is or is not such a public
authority. The wide words of the definition must be read
down in some way otherwise every body corporate registered
under the Companies Ordinances of the Australian Capital
Territory, the Northern Territory or Norfolk Island would
be a public authority of the Commonwealth, which does not
seem to be the intention of the sections."

13. The same proposition was accepted without argument by Douglas J. in Jacobsen v Piepers (1980) 32 ALR 293.

14. In Bryce v Curtis (1983) 51 ALR 73, Burt C.J. accepted that the Commonwealth Trading Bank was a "public authority under the Commonwealth".

15. His Honour rejected the view that the Commonwealth Trading Bank had to be excluded from the definition because it engaged in trading activities rather than carrying out "governmental functions".

16. He said,

(76) "In my view, the implication that was put to me
(that is, that the phrase is limited to 'Governmental
functions') would be one which would be quite wrong for
any court to make. I think as far as one could possibly
take it - if any implication is to be made at all and I am
not to be taken as saying that any implication is to be
made - is to make the distinction between a corporation
which has been constituted by an Act of the Commonwealth
Parliament by which it can be seen that the Commonwealth
is operating in a particular field through the corporation
which a law of the Commonwealth has created for that
purpose, on the one hand, and the creation of a
corporation by a law of the Commonwealth which upon the
reading of the statute creating it, it can be seen was
intended to perform its functions independently of the
Commonwealth, so that the concept of a Commonwealth
activity cannot realistically be applied to that which the
corporation does. ... If you can make an implication of
that type the Commonwealth Trading Bank would still, upon
a proper construction of and application of the provisions
to be found in the Banking Act, be seen to be the
Commonwealth banking. It would be seen to be a
Commonwealth instrumentality and it is not to the point, I
think, to consider whether it is an instrumentality which
is carrying out the conventional function of government as
it was thought to be some years ago. The question simply
is as to whether it is operating as a government
instrumentality. If it is and if it is constituted under
the law of the Commonwealth, then I would have thought,
and without doubt, it is a public authority under the
Commonwealth."

17. Of course, the question Burt C.J. had to answer is of a different kind than the one posed in these proceedings. I do need to determine whether the apparently wide words of s.3 are to be read down and, if so, to what extent. It seems to me that Zelling J. was right to say that the definition must be limited by its context. I consider that Burt C.J. has, with respect, correctly identified the proper distinction between a private corporation not being a "public authority" under the Commonwealth and a government instrumentality which is.

18. The precise mode of incorporation is not decisive. The more specific the statutory charter the more likely is it that the body corporate in question is carrying out its functions for and on behalf of the Commonwealth. ACSRA is incorporated pursuant to provisions relevantly indistinguishable from those applicable to associations incorporated under the Associations Incorporation Act 1953 and 1991 of this Territory. The class of persons who may form an Aboriginal Corporation is more limited. It is also apparent that the separate supervision of such corporations gives effect to governmental policies to aid Aboriginal development and welfare. However, it is also apparent that those corporations carry out their functions in accordance with the wishes of their members. They are as independent of the Commonwealth as any other privately controlled corporation.

19. The only connection ACSRA had to the Commonwealth was that it was the recipient of monetary grants from the Commonwealth. As is usual with such grants, they were for specific purposes and the corporation was accountable for the monies received and expended. That, however, did not make the corporation an instrument of the Commonwealth. ACSRA was carrying out its own objectives. As it happened, the Commonwealth was prepared to support those objectives, or, at least, some of them.

20. Of course, a body corporate, originally a Commonwealth authority, could, if "privatised" so as to become independent of the Commonwealth, cease to be such an authority even if its corporate status is not altered.

21. In the present case, on the evidence adduced by the prosecution, ACSRA is not "a public authority under the Commonwealth". It follows that the offences alleged could not have been committed by the accused in relation to it.

22. I recorded a verdict of acquittal on each count in the indictment accordingly.