Church of the New Faith v Commissioner of Payroll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 Australian Granites Limited v Eisenwerk Hensel Bayreuth Dipl.-Ing Burkhardt GmbH [2001] 1 Qd R 461

Gattellaro & Anor v Westpac Banking Corporation [2004] HCA 6; (2004) 204 ALR 258

Woods v Multisport Holdings Pty Limited [2002] HCA 9; (2002) 208 CLR 460

Maxwell v R [1996] HCA 46; (1995) 184 CLR 501

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177

EX TEMPORE JUDGMENT

No. SCA 102 of 2007

Judge: Refshauge J

Supreme Court of the ACT

Date: 16 May 2008

IN THE SUPREME COURT OF THE )

) No. SCA 102 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: UI-SIEP LE

Applicant

AND: JOHN McELWEE

Defendant

ORDER

Judge: Refshauge J

Date: 16 May 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Orders of Magistrate Fryer on 26 October 2007 be confirmed.

1. The Appellant conducted the Australia Post outlet in the Canberra suburb of Higgins as licensee from 2 December 2002 in conjunction with a newsagency business. In November 2006, the licensed Post Office manager in charge of the operations of that outlet, Ms Margaret Isles, and others, detected accounting irregularities at that outlet and sent Mr Jonathan McElwee, the Respondent, and a corporate investigator with Australia Post, to undertake an unannounced audit with him.

2. Unfortunately, the Appeal Book is substantially deficient. Much of the evidence before the Learned Magistrate was given by reference to documents in what was called "the preliminary reading brief". The brief was tendered as exhibit 1 but not reproduced in the Appeal Book, making the oral evidence very difficult to understand and probably impossible to understand completely. It appears that it was intended that this document would be tendered prior to this hearing, but it was not received by me.

3. The Bench sheets from the Magistrates Court were also reproduced but they described the offences in the most shorthand manner as:

CC 07/40302 Offence: Theft

Offence from: 29/08/2006

CC 07/40303 Offence: Theft

Offence from: 15/09/2006

4. These cannot, of course, have been the charges actually laid. Informations which contained the actual charges were, inappropriately, not included in the appeal papers. They were tendered at the hearing. No doubt the actual charges would have been read to the Appellant when he first appeared in court on 7 June 2007 but that transcript was not reproduced. This absence compounded the difficulty in understanding the proceedings.

5. In any event, it appears that the unannounced audit detected a deficiency in the funds which should have been remitted to Australia Post from the outlet. The Appellant was then interviewed by the Respondent after the latter administered the usual caution.

6. It appears that the deficiency was $12,107.75. The Appellant admitted to having taken two amounts of money, $10,000 on 29 August 2006 and $4,000 on 15 September 2006. It appears that he repaid some of the money he took, amounting to $1,892.25.

7. During his interview with the Respondent, the Appellant claimed that he took the money for the business, "I used the money purchase (sic) stock".

8. In evidence before the Learned Magistrate, the Appellant repeated the admission that he had appropriated these sums. He said "... I borrowed some money that I supposed (sic) to put into the ... safe after the trading finished ... so I could bank into the - my ANZ bank account". The Appellant further stated that as he made money from the newsagency, he repaid money into the Australia Post funds.

9. The Appellant agreed that he had no approval for the taking of the money and that he had told no one of what he was doing. It appears that the money was used to reduce his overdraft with the ANZ Bank, though the overdraft appears later to have been drawn down again to pay for supplies (presumably stock) for the newsagency. The Appellant agreed in cross-examination that "the ordinary person" would consider that what he had done was dishonest. In addition, what the Appellant did breached his contract with Australia Post.

10. I found it difficult to find the precise evidence to show that the money in question was owned by Australia Post. It may have been clearer if exhibit 1 (the `preliminary reading brief') had been provided, but I was assured by Mr Tim Sharman, the Appellant's counsel, that there was sufficient evidence before her Honour on which she could find beyond reasonable doubt that the money appropriated by the Appellant was owned by Australia Post. In any event, he affirmed that there was only one issue on the appeal and he was not suggesting that the money was not owned by Australia Post.

11. The Learned Magistrate found both offences proved beyond reasonable doubt. The Learned Magistrate sentenced the Appellant as follows.

On the first charge of stealing $10,000 he was convicted and, without passing sentence, released upon his giving surety self in the sum of $1,000 and that he be of good behaviour for a period of 18 months from 26 October 2007.
On the second charge of stealing $4,000 he was convicted and discharged upon him entering the recognizance in the other charge.

12. On 21 November 2007, the Appellant appealed against his convictions for these offences on the sole ground that "[t]he evidence could not sustain a finding of guilt". There was no appeal from the sentences. On 13 March 2008 the ground of appeal was amended to read "[t]he evidence could not sustain a finding of guilt in that there was no evidence that `Australia Post' was a Commonwealth authority or entity". Mr Sharman confirmed that this was the only ground of appeal.

13. No evidence was addressed to this issue before the Learned Magistrate. Mr Kelloway, who appeared for the prosecution before the Learned Magistrate (and for the Respondent in this Court) did, in his submissions to her, say

I would ask your Honour to take judicial notice of the Australian Postal Corporation Act 1989 that has Australia Post as being an entity or authority of the Commonwealth.

14. This appears to refer to the following provisions. The Australian Postal Corporation Act 1989, an Act of the Commonwealth Parliament, in s 13 continued the Australian Postal Corporation as a body corporate with a seal and the power to sue or be sued. Section 3, the interpretation section, provides that "Australia Post" means the Australian Postal Corporation.

15. Mr Kelloway's reference to that Act was, however, at best elliptical. In fact, the legislative history is a little more complicated. The Postal Services Act 1975 (Cth), by s 5, established the Australian Postal Commission. This clearly was, using the words of the dictionary of the Criminal Code Act 1995 (Cth), a body established by or under a law of the Commonwealth.

16. By s 5 of Postal Services (Amendment) Act 1988 (Cth), s 5 of the above Act was amended to provide that the Australian Postal Commission was preserved and continued under the name of the Australian Postal Corporation. This did not affect its status as a body established by or under a law of the Commonwealth. That section also inserted a new s 5A which gave the newly named body a seal, the power to acquire, hold and dispose of real and personal property and an entitlement to sue and liability to be sued in its corporate name.

17. Section 12 of the Australian Postal Corporation Act 1989 (Cth), the Act that governed the relevant time of the offences, continued the existence of the Australian Postal Corporation.

18. The charges faced by the Appellant were laid under s 131.1 of the Criminal Code Act 1995 (Cth) which provides:

A person is guilty of an offence if:
(a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.

19. The Dictionary for that Act provides that a "Commonwealth entity" means the Commonwealth or a Commonwealth authority. "Commonwealth authority" means, in turn, a body established by or under a law of the Commonwealth, subject to some irrelevant exceptions. It is thus clear that Australia Post is a Commonwealth entity for the purposes of the above section.

20. Mr Sharman, who appeared for the Appellant, accepted that the hearing before her Honour had been "conducted in an abbreviated form". His written submissions noted that "what was `in issue'... [was] whether the Appellant had an `intention to permanently deprive'". So much was clear from this statement of Mr Atlas, who appeared for the Appellant in the proceedings below (Appeal Book p 39 ll 27-30):

However, your Honour, the defence case is that as a part of this particular indictment the mental element has to be made out. That is, that the defendant totally and permanently intended to deprive Australia Post of the $12,000-odd.

21. No submission was made on any other element of the offence.

22. Section 131.10 of the Criminal Code Act 1995(Cth) provides:

For the purpose of this Division, if:
(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and
(b) the person's intention is to treat the thing as the person's own to dispose of regardless of the other's rights;
the person has the intention of permanently depriving the other of it.

23. Section 131.1 falls within the division.

24. It seems to me quite clear that the Appellant, by "borrowing" the funds of Australia Post but then using them in his own newsagency business, was using them for the intention of permanently depriving Australia Post of the funds within the meaning of this section. Mr Sharman did not submit to the contrary.

25. Her Honour found that a correct application of s 131.10 of the Criminal Code Act 1995 (Cth) meant that the Appellant had the necessary mental intention for the offences. This finding was not challenged on appeal.

26. Instead, Mr Sharman submitted that there was no evidence before her Honour establishing that "Australia Post" was, as required, "a body established by or under a law of the Commonwealth". I pause to observe that it is not clear what "evidence" Mr Sharman thought should have been adduced for this purpose.

27. He did note that the statement of Mr Kelloway I have quoted above, but contended this was problematic because

(a) it was made during closing submissions,
(b) no such notice was taken, and
(c) the matter was not pursued further.

28. He did note, in his written submissions, that "[i]n defence of both Her Honour (and counsel for the prosecution) it is apparent that it was `not in issue'". He relied on the absence of "a formal admission" submitting that a concession by counsel for the Appellant "... did not abrogate the obligation on the prosecution to adduce evidence nor the court to determine the matter on the evidence before it".

29. Mr Sharman seemed to suggest that the prosecution were required to produce some material that was the fact of the element of the offence specified in s 131.1(1)(b) and that the proof of that could then be satisfied by recourse to the legislation I have referred to above.

30. I must say that, try as I might, I have difficulty in seeing what the material was that had to be produced to the Learned Magistrate.

31. Indeed, it seemed to me that these submissions were entirely misconceived and failed to understand the issue of judicial notice. Issues covered by Pt 4.3 of the Evidence Act 1995 (Cth) s 143 of which provides relevantly matters of law:

(1) Proof is not required about the provisions and coming into operation (in whole or in part) of:
(a) an Act, a State Act, an Act or Ordinance of a Territory or an Imperial Act in force in Australia.

32. It was noted by the Australian Law Reform Commission in its report on Evidence (ALRC 26) vol 1, par 973 in respect of this provision:

The proposal assumes a judge's obligation to take the law into account and apply it. The proposal is limited to a provision that proof shall not be required about matters of law - their substance and operation. The proposal reflects existing law but simplifies it.

33. This proposal may be wider than the common law: Owens v Repatriation Commission (1995) 59 FCR 559 at 589. The whole section certainly permits a judge to go and find notices in the Government Gazette and then rely on them in their decision: Attorney-General v Foster [1999] FCA 81; (1999) 84 FCR 582 at 593.

34. The essential provision for this appeal are the opening words, namely that "[p]roof is not required about ..." which clearly shows that the thrust of the Appellant's submission is quite wrong. No proof, such as an admission, is required.

35. The Appellant complained that the request for such notice to be taken was made during the prosecution submissions. This also has to be rejected.

36. In the fourth edition of his useful text, Australian Evidence (Sydney, LexisNexis Butterworths (2004)), Andrew Ligertwood describes at pp 446-7 the four stages at which the issue of judicial notice arises:

(a) during a trial a party may ask a judge to dispense with formal proof and direct that judicial notice be taken of a fact;

(b) after a party's case has closed, that party may seek to rely upon a fact not formally proved by urging the court to take judicial notice of it, (see Laydon v Tomlinson (1979) 22 SASR 302 at 309-to 311 where Zelling J held that the special magistrate was not entitled to take judicial notice of certain proclamations when urged in final submissions, but because of the nature of these proclamations and not because the submission was made when it was made);

(c) in reaching its decision the trier of fact may have relied upon facts not formally proved in evidence but acquired by the trier of fact at an unauthorised view or by consulting sources not referred to by the parties, or acquired on some earlier occasion in the trier's experience, and on appeal it may be argued that the doctrine of judicial notice authorises the use of such information (see Pope v Ewendt (1977) 17 SASR 45); and

(d) where an appellate court is asked to make up a formal defect in the evidence by relying upon the doctrine of judicial notice.

37. While Mr Ligertwood identifies difficulties in these areas, and suggests there is a reluctance by the courts to use the doctrine of judicial notice, at least in the last three, it is clear that it is available in all of them.

38. Thus in Australian Granites Limited v Eisenwerk Hensel Bayreuth Dipl.-Ing Burkhardt GmbH [2001] 1 Qd R 461, Pincus J in a decision and reasons with which the other members of the court agreed said at 465:

A point was made on appeal that the contents of the Rules of Conciliation and Arbitration of the International Chamber of Commerce was not proved below. The Court must take judicial notice of the existence of the ICC arbitration system, the ICC Court of Arbitration being "the most important institution for the arbitral settlement of international trade disputes": see Schmittoff's Export Trade, (9th, Sweet & Maxwell 1990) at 676; the author adds that the ICC Court of Arbitration has the "confidence and respect of businessmen all over the world ...". In my opinion such notice should also be taken of the fact that there are rules for ICC arbitration and of the content of such rules. As is pointed out by Hensel's senior counsel, Mr Sofronoff QC, they are published in a number of scholarly texts ("learned works ... appropriate documentary material of indisputable accuracy": Halsbury's Laws of Australia, Vol 13, pars 195 to 1910).
... concerning arbitration, in my view they constitute facts "about which there can be no real dispute": Cavanett v Chambers [1968] SASR 97 at 101 quoted in Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) [1989] FCA 245; 87 ALR 477 at 485; see also All States Frozen Foods Pty Ltd v Commissioner of Taxation (1990) 21 FCR 457 at 465 and 466, Timbury v Coffee (1941) [1941] HCA 22; 66 CLR 277 at 284, Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) [1983] HCA 40; 154 CLR 120 at 123, 124, 125 and passim).

39. In the High Court the issue arose in Gattellaro & Anor v Westpac Banking Corporation [2004] HCA 6; (2004) 204 ALR 258 where in the Court of Appeal the content of a mortgage, the signed copy of which had been lost, was held to be able to be ascertained in the appellate court by it taking judicial notice of "the fact that the bank used a standard form of guarantee and of what was in it" (at 261). At 263, in the majority judgment, the High Court held that those were not facts of which there was common knowledge as required by s 144 of the Evidence Act 1995 (Cth), but made no criticism of the attempt by the Court of Appeal to use the doctrine of judicial notice at such a stage of the proceedings.

40. In Woods v Multisport Holdings Pty Limited [2002] HCA 9; (2002) 208 CLR 460, at 478, McHugh J said:

(a) The doctrine of judicial notice: general.
As a general rule facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule and a court may judicially notice a fact whenever it is so generally known that every ordinary person may be reasonably presumed to be aware of it. The information which the court acquires by taking judicial notice of facts is not evidence strictly so called. Facts that may be judicially noticed fall into two categories; facts that can be judicially noticed without enquiry, and facts that can be judicially noticed after enquiry. (Footnotes omitted).

41. At 511, Callinan J pointed out:

In short, there is always going to be one party who fails in this court. It would be unfair and entirely unsatisfactory for such a party to learn after the event for the first time that he or she lost because the court resorted to extrinsic, allegedly notorious facts with which he or she had no opportunity to deal.

42. In this case, I note that there are at least two occasions, in addition to the reference by Mr Kelloway in his final submissions, where the issue was raised, namely in the opening by Mr Kelloway and also in the transcript of the taped interview conducted on 15 December 2006 with the Appellant and which formed part of exhibit 1 before her Honour.

43. Thus, there can be no unfairness in this case, nor unsatisfactoriness, in the way proscribed by Callinan J. The issue was squarely raised and no issue taken about it by the Appellant's counsel.

44. It can thus be seen that the words "[p]roof is not required about ..." should be given their ordinary meaning that the legislative basis for the element of the offence is not a matter of evidence; courts can rely on such material at any stage of the proceedings, subject, of course, to unfairness, about which issues such as adjournments and the opportunity for further submissions could address.

45. There is no substance in the ground that the prosecution could not raise the issue in the submissions after it had closed its case. Indeed, one might suggest, this is often where, on a point not otherwise in contention in the proceedings, the prosecutor might find it convenient to include such a matter as arises under s 143, though perhaps not so much a point under s 144.

46. Finally, Mr Sharman submitted that the Learned Magistrate had not in fact taken judicial notice of the legislation. This he submitted was found because she did not mention it. Certainly, it would have been easier for all if she had done so more explicitly, although I am satisfied that she did. After Mr Kelloway's submission as to judicial notice, he offered to "go through" the documentary evidence before her Honour. She replied:

I don't think that is necessary because I think the only issue, and Mr Atlas can correct me if I am wrong, but the only issue, as you correctly identified at the very beginning is the issue of whether - well, is whether Mr Lee's interpretation of the law is right, I suppose.

47. This referred to the interpretation of s 131.10(1) of the Criminal Code Act 1995 (Cth). Mr Atlas did not at any time demur. Her Honour then said:

Everything else, Mr Atlas has not taken issue with any of the other elements. The conduct is clearly there. It is simply an issue of (sic) that whether Mr Lee was mistaken in relation to his interpretation of the law, I suppose.

48. Again Mr Atlas did not then or later demur.

49. In my view, this has an analogy with what the High Court said in Maxwell v R [1996] HCA 46; (1995) 184 CLR 501 at 510 that a plea of guilty constitutes an admission of all the essential elements of the offence. If there is evidence that is credible (which, by definition, facts of which judicial notice can be taken must constitute) and this is unchallenged, the court may rely on it. This was, as is entirely proper and, indeed, to be encouraged, an ex tempore decision given immediately at the end of the hearing and standards of perfection should not be required. The Learned Magistrate had heard the submissions and, to some extent, the exchanges during them must be incorporated into the reasoning process of her Honour.

50. While, of course, a court is obliged to give adequate reasons for decision, the obligation is not for perfection. As Gray J said in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:

The adequacy of the reasons will be depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

51. It is also helpful to note what Tobias JA, with whom Beazley and Basten JJA agreed, said in Segal & Anor v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at 189:

Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived.

52. In this case, her Honour clearly addressed her thought processes and addressed carefully the issue joined between prosecution and defence.

53. Having said this, it is obviously desirable that a court address each element of the criminal offence and my remarks should not be taken to encourage the contrary. Due allowance needs to be made, however, for the circumstances of each case and that includes the content of submissions to the Court, the exchanges between counsel and the Court, and the issues joined between the parties.

54. Here, the circumstances did not require the Learned Magistrate to express detailed reasons on issues not challenged by the other party and it was clear that she had accepted the issue of judicial notice, which had been fairly raised and not challenged.

55. Even were that not so, on appeal I would be able, perhaps even obliged, to take judicial notice of the fact that Australia Post is a Commonwealth authority because all that is required for that finding is contained in Acts of the Commonwealth Parliament.

56. There is no substance in the ground of appeal, which must be dismissed. I shall hear the parties on the orders to be made and the question of costs.

I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 13 June 2008

Counsel for the appellant: Mr Tim Sharman

Solicitor for the appellant: Rachel Bird & Company

Counsel for the respondent: Mr J Kelloway

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 16 May 2008

Date of judgment: 16 May 2008

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