Re Graham Harvey Lillyman v John David Pinkerton [1982] FCA 279; 7 Aclr 471 (23 December 1982)

FEDERAL COURT OF AUSTRALIA

Re: GRAHAM HARVEY LILLYMAN
And: JOHN DAVID PINKERTON
Nos. ACTG 67, 70, 71 and 72 of 1982
Appeal from Supreme Court of ACT
[1982] FCA 279; 7 ACLR 471

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.
Keely J.
Gallop J.

CATCHWORDS

Appeal from Supreme Court of ACT - Objections to informations - Whether informations invalid for failing to disclose nature of offence charged - Statute - Interpretation - "officer of the company who is in default".

Court of Petty Sessions Ordinance, 1930 (ACT) s.27(2)

Companies Ordinance, 1962 (ACT) ss.67, 379(8).

HEARING

CANBERRA
23:12:1982

ORDER

1. The appeal be dismissed.

2. The appellant pay the taxed costs of the appeal.

DECISION

These are four appeals from orders of the Supreme Court of the Australian Capital Territory, discharging orders nisi to review decisions of the Court of Petty Sessions convicting the Appellant of four offences against s.67(3) of the Companies Ordinance 1962.

The orders nisi had been granted on the grounds that the informations alleging the offences in fact disclosed no offence known to law.

The allegation in each information was that the Appellant "did commit an offence against section 67(3) of the Companies Ordinance 1962 in that he was an officer-in-default of KINGSGATE PROPERTIES (A.C.T.) PTY. LIMITED a company duly incorporated under the laws of the said Territory which said company, contrary to the provisions of section 67(1) of the said Ordinance, did give financial assistance to (name) in connection with a subscription for shares made by (name) in the said company".

This was certainly not as well expressed as it might have been. S.67(1) provides that ". . . . no company shall give . . . . any financial assistance . . . . in connexion with a . . . . subscription . . . . for any shares in the company . . . .". S.67(3) provides that, if s.67(1) is contravened, "the company and each officer of the company who is in default is guilty of an offence . . . "

Clearly the information would have been better worded if it had said "did commit an offence against section 67(3) of the Companies Ordinance 1962 in that he was an officer of KINGSGATE PROPERTIES (A.C.T.) PTY. LIMITED (a company duly incorporated under the laws of the said Territory) who was in default in relation to the said company's giving of financial assistance, contrary to the provisions of s.67(1) of the said Ordinance, to (name) in connexion with a subscription for shares made by (name) in the said company".

Alternatively the information might have begun with a recital of the contravention of s.67(1) by the Company and proceeded to allege that the Appellant "did commit an offence against section 67(3) of the said Ordinance in that he was an officer of the said Company who was in default".

If either of these courses had been followed the informant, while still being very cryptic as to the defendant's offence, would at least have done all that was possible to secure the benefit of s.27(2) of the Court of Petty Sessions Ordinance 1930, which provides

"The description of any offence in the words of the Ordinance . . . . creating the offence, or in similar words, shall be sufficient in law."

The first question to be decided in this case is whether the words actually used in the information are sufficiently 'similar' to attract s.27(2).

The words in the information and Ordinance which have to be compared for similarity are "officer-in-default of (name of company)" and "officer of the company who is in default".

The first point to be made is that we do not believe the use of hyphens is relevant in this connexion. We see them as serving a similar purpose to inverted commas or underlining, designed to draw attention to the importance of those words in the context of the designated section. Their use is inelegant, as the Chief Justice said in the Supreme Court, but not, in our opinion, misleading or confusing. Once this unnecessary flourish is out of the way we find it impossible to say that the words of the information are not sufficiently similar to those of the Ordinance to attract the protection of s.27(2) of the Court of Petty Sessions Ordinance 1930.

Having decided that s.27(2) can be called in aid by the informant in this case, it then becomes necessary to consider its effect. Can it suffice to save a very uninformative and vague allegation which, were it not for the section, would clearly be insufficient to disclose an offence?

Although provisions in these terms have existed for many years in the United Kingdom, and in almost all Australian jurisdictions, there appears to be surprisingly little authority on their effect.

There is some divergence between English and Australian authority on the question whether this statutory provision will save an information from which significant particulars are missing.

Smith v Moody (1903) 1 KB 56 was a case in which the defendant was convicted on a charge of wrongfully damaging property with a view to compelling another person to abstain from an act which he was legally entitled to perform. All necessary details were contained in the information other than the identity of the property which was damaged. The Divisional Court held that the information was bad for this reason. In the words of the Lord Chief Justice, Lord Alverstone, at p.60.

". . . it could not have been intended by that section to do away with the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given in indictments and convictions. All that is meant by (the equivalent to s.27(2) of the Court of Petty Sessions Ordinance) is that the offence itself need only be described in the words of the statute creating it."

Wills J. agreed with the Chief Justice. Channell J. expressed some doubts but relied on ". . . . the usual necessity for specifying time and place and matter . . . " in concurring in the decision.

In Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379, Evatt J. considered the case of Smith v Moody and, after expressing some doubt about the decision, distinguished it. He held that an information for supplying liquor during prohibited hours was good, even though it did not specify the hour of the sale(s) or the identity of the purchaser(s). His Honour said that it was highly desirable that a person charged with such an offence be given the particulars sought a reasonable time before the hearing, but their absence did not invalidate the information.

With respect to his Honour, it is difficult to see that the case of Smith v Moody was, as he said, "quite distinct" from Davis v Ryan. However that may be, the authority of Davis v Ryan has never been questioned in Australia, particularly in the distinction which it draws between the statement of the offence, which is crucial to the validity of the information, and the supply of particulars necessary for a fair trial.

These decisions were carefully considered by Blackburn C.J. in an earlier case of Day & Riggs v Rugala (1978) 20 ACTR 3 as well as in the present case. In Day & Riggs v Rugala his Honour found that it was sufficient for an information to allege, following the words of the relevant Ordinance, that a policeman "did directly take a bribe", without specifying the corrupt purpose for which the bribe was intended.

His Honour, after reviewing the authorities, held at p.6 that

". . . each of these informations unequivocally implies that the accused accepted money corruptly, ie was conscious that the purpose of the payment was to influence his official conduct. The word 'bribe' cannot mean less. For this reason I uphold the argument of counsel for the respondent, that s.27(2) of the Court of Petty Sessions Ordinance 1930 established the sufficiency of the information."

We would, with respect, agree with his Honour's conclusion. However the present case is rather more difficult. The acceptance of a bribe is a well established common law offence. Being "in default" in some unspecified way in relation to a company's contravention of the Companies Ordinance 1962 is not. It could, in ordinary speech, mean anything from being remiss in failing to make inquiries, through negligently overlooking a responsibility, to deliberately breaching the law.

It would be difficult to conceive of an information which gave less notice to the defendant of the case he has to meet than that in this case. He is not told whether he is alleged to be guilty of an act or an omission, whether his responsibility is alleged to be direct or indirect, or even whether his default is said to be wilful or negligent. All he knows is that he is said to be in some unspecified way involved in a contravention of the Ordinance by the company of which he is an officer.

In spite of these uncertainties we think it is clear that s.67(3) of the Ordinance does create an offence, in the same way that a number of other sections do, by providing that where a particular contravention of the Ordinance has occurred, an officer of the Company "who is in default" shall be guilty of an offence.

The nature of the offences so created vary quite widely, as do the prescribed penalties. They range from failing to lodge certain documents with the Registrar - penalty $20 (ss.27(6) and 29(b)) - to issuing unlawful invitations to deposit monies with the company - penalty $2000 (s.38(2)). It may be that the nature or degree of default which would constitute an offence would also vary with the nature of the contravention. Fortunately such problems seem to have been largely overcome in the Companies Act 1981, see s.572.

Since s.67(3) creates an offence, to describe that offence in terms of the section is deemed to be sufficient by s.27(2) of the Petty Sessions Ordinance 1930.

This, in our view, is the end of the matter. We do not find it necessary to go to s.379(8) of the Companies Ordinance which states that "the phrase 'officer who is in default' . . . . includes an officer of the company or corporation who knowingly and wilfully authorises or permits the commission of an offence".

We think it is clear that this is intended to specify and define one way, which might otherwise have been in doubt, in which an officer may be in default. The words are not apt to cover the most obvious case of the officer who himself performs all the acts which constitute the offence. Thus they should not be read as covering all cases in which officers may be in default - the word "includes" means what it says, cf. YZ Finance Co Pty. Ltd. v Cummings [1964] HCA 12; (1964) 109 CLR 395, per Kitto J. at 401-2.

Section 379(8) therefore does not, as counsel for the appellant argued, state an integral part of the offence under s.67(3) of the Ordinance which must be repeated in the information before s.27(2) of the Petty Sessions Ordinance can be attracted.

We do not believe that his Honour the Chief Justice erred in so holding or in holding that the information disclosed an offence. Since these were the only grounds of appeal, the appeal must be dismissed with costs.

On 17 June 1981 the appellant was convicted of four offences against section 67(3) of the Companies Ordinance 1962. On 8 July 1981 the Supreme Court of the Australian Capital Territory granted four orders nisi to review those convictions. The appeals by way of order to review were heard in the Supreme Court of the Australian Capital Territory on 6 April 1982 and by its reserved judgment delivered on 9 September 1982 the Supreme Court dismissed the four appeals and discharged the order nisi in each matter. The convicted appellant now appeals to this Court from those orders of the Supreme Court dismissing his appeals and discharging the orders nisi.

The short point in the appeals to this Court is whether the informations preferred against the appellant disclosed any offence known to the law. The terms of each information may be contracted as follows:

". . . did commit an offence against section 67(3) of the Companies Ordinance 1962 in that he was an officer-indefault of (name of company) . . . which said company contrary to the provisions of section 67(1) of the said Ordinance, did give financial assistance to (name of person) in connection with a subscription for shares made by (that person) in the said company."

In dismissing the appeals to the Supreme Court the Chief Justice dealt with the first argument as follows:

"The first argument for the appellant was that the information was meaningless because the phrase "officerin-default of (named company)" was meaningless. To be in default "of" something meant, it was said, to have failed to do that thing, e.g. "judgment in default of appearance". I think that this argument is without substance. The phrase is no doubt inelegant, but cannot possibly be read as meaning anything but "officer of (named company) who was in default". The insertion of hyphens is an irrational flourish which does not hinder the reader's comprehension of the meaning of the words."

He then considered the next argument, which is the identical argument before this Court, that each information failed to indicate the offence of which the appellant was charged. He applied section 27(2) of the Court of Petty Sessions Ordinance 1930 and reached the conclusion that the words of the informations sufficiently described the offence in the words of the Companies Ordinance or in similar words. He held that they were valid informations. At the same time he was strongly critical of the words of the informations and the provisions of the Companies Ordinance 1962 since repealed.

It has been decided over and over again that a person cannot be convicted on an information that does not charge an offence (Ex parte Lovell; re Buckley 38 S.R. (N.S.W.) 153 at 168, 173; Ex parte Thompson; re Ryan 41 S.R. (N.S.W.) 10; Ex parte de Mestre 44 S.R. (N.S.W.) 55 at 58; and Ex parte Fitzgerald 45 S.R. (N.S.W.) 182 at 187). A Magistrate has no jurisdiction to try a person for something which is not in law an offence. Looked at in that way the question before the Supreme Court was whether the Magistrate had any jurisdiction to record the convictions on the four informations before him.

Section 67(1) of the Companies Ordinance provides that ". . . no company shall give . . . any financial assistance . . . in connection with a . . . subscription . . . for any shares in the company . . .". Section 67(3) creates the offence of which the appellant was convicted and it provides that if section 67(1) is contravened "the company and each officer of the company who is in default is guilty of an offence . . .".

The difficulty which the draftsman of the informations has created arises from the fact that he has not used the words of sub-section (3) in the informations. Instead of charging the appellant as an "officer of the company who is in default" he has charged the appellant as "officer-in-default of (name of company)".

As mentioned earlier the Chief Justice described the insertion of hypens as an irrational flourish which does not hinder the reader's comprehension of the meaning of the words. It is no doubt true that if the hyphens were omitted the informations would read "officer in default of (name of company)" and these words are so similar to "officer of (name of company) who is in default" that such description of the appellant would be saved by section 27(2) of the Court of Petty Sessions Ordinance. Section 27(2) provides "the description of any offence in the words of the Ordinance . . . creating the offence, or in similar words, shall be sufficient in law".

In my view, however, the use of hypens cannot be dismissed as a pleader's flourish even though they may not hinder the reader's comprehension of the meaning of the words. Fowlers Modern English Usage, 2nd Ed., states that modern English usage of the hyphen in its infinite variety defies description and no two dictionaries and no two sets of style rules would be found to give consistently the same advice. But there is one principle that seems to command at least lip service from all authorities. This is that the hyphen is not an ornament, but an aid to being understood.

The author goes on to demonstrate by example the way the sense of words can be radically altered by the use of hyphens and quotes, "I am in revolt about your hyphens" wrote Sir Winston Churchill to Sir Edward Marsh. "One must regard the hyphen as a blemish to be avoided wherever possible". The draftsman ought to have heeded this advice. He has certainly succeeded in puzzling the reader and perhaps the appellant in the use of hyphens in these informations.

Should the informations be given a benevolent construction by calling in aid section 27(2) of the Court of Petty Sessions Ordinance?

The forerunner of section 27 was the Summary Jurisdiction Act 1879 (42 & 43 Vic. c.49, s.39(1)). There are similar provisions in other States and Territories of Australia:

Justices Act 1902 (N.S.W.) s.145A; Magistrates (Summary Proceedings) Act 1975 (Vic) s.167; Justices Act 1886 (Qld) s.47; Justices Act 1902 (Q.A.) s.45; Justices Act 1921 (S.A.) s.55; Justices Ordinance 1928 (N.T.) s.55.

In Ex parte Lovell re Buckley 38 S.R. (N.S.W.) 153 Jordan C.J., in a typically scholarly history, considered the mischief which these provisions and other provisions of the Justices Act 1902 (N.S.W.) were designed to correct. The history is worth repeating, albeit in abbreviated form.

In the 14th century the practice became established, when statutes were passed creating offences punishable by penalty, of investing justices of the peace with power to hear and determine charges of such offences. This involved a trial by jury before the justices according to the procedure of the common law. Sessions of justices were held quarterly for this purpose. A practice developed whereby justices were empowered by particular statutes to adjudicate summarily out of sessions and without a jury with respect to particular offences. At common law there was no right of appeal from justices exercising summary jurisdiction. Later provision was made for appeals to Quarter Sessions in particular cases and the Summary Jurisdiction Act 1879 (42 & 43 Vic. c. 49, s.19) gave a general right of appeal to Quarter Sessions.

Since the exercise of the summary jurisdiction exposed the subject to penalties imposed by lay justices without the protection of trial by jury, the Court of King's Bench exercised a vigilant supervision over this jurisdiction, not by way of appeal, but by means of the prerogative writ of certiorari. The rule that the judgment of an inferior court must show on its face that it is within its jurisdiction was rigidly applied. A summary conviction was quashed by certiorari if it did not on its face contain all such material as was necessary to enable a superior court to form a judgment as to whether the conviction was authorised by law. It was essential in order that a conviction might stand that it should set out on its face, inter alia, the information by which the charge had been laid. The offence had to be described with accuracy and with sufficient particularity to enable a superior court to see for itself whether the acts alleged were sufficient to constitute the offence (R. v. Sparling 1 Str. 497). An accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence (R. v. Wheatman 1 Doug. (K.B.) 345; R. v. James Cald. Mag. Cas. 458; Smith v. Moody (1903) 1 K.B. 56 at 60, 63). On the other hand, the conviction would be quashed if the evidence set out in the conviction showed that there was no evidence to establish some essential ingredient of the offence charged in the information (R. v. Smith 8 T.R. 588; R. v. Nat Bell Liquors Ltd. (1922) 2 A.C. 128 at 149-151). If, however, there was some evidence to support every ingredient of the offence the Court of King's Bench on certiorari would not review the conclusion of the justices as to its weight (R. v. Smith 8 T.R. 588).

So strict were the requirements for the valid exercise of the summary jurisdiction that it was not difficult to pick holes in a conviction and on occasion, when the ingenuity of counsel failed, the Court of King's Bench was astute to discover defects for itself. In the result, large numbers of delinquents escaped punishment upon grounds some of which were highly technical.

Legislation which had the effect of rendering summary convictions less open to attack was passed in England in the 19th century. Included in these provisions was the Summary Jurisdiction Act 1879 (42 & 43 Vic. c.49, s.39(1)) providing that before courts of summary jurisdiction the description of an offence in the words of the Act etc, or similar words, shall be sufficient in law. In Smith v. Moody however it was held that the section does not mean what it appears to say. It means only that it is sufficient to describe the offence itself but leaves it still necessary to accompany the description with particulars of the acts relied on as constituting the offence (Pointer v. Cox 136 L.T. 506). These authorities seem to be based on the view that it is essential that the accused have sufficient particulars to prepare his defence. But this object, as is pointed out by Evatt J. in Davies v. Ryan [1933] HCA 64; (1933) 50 C.L.R. 379 can be secured otherwise than by insisting upon a retrenchment of the old rule that these particulars must necessarily be given upon the face of the information itself.

I respectfully agree with the analysis of Smith v. Moody and Davies v. Ryan by the Chief Justice in the judgment appealed from. In particular Davies v. Ryan goes no further, for present purposes, than to illustrate the principle that the hearing of a charge should not proceed if the defendant is not fairly informed of the charge against him and that it is sufficient in law if the charge is in the words of the statute creating the offence (Johnson v. Miller [1937] HCA 77; (1937) 59 C.L.R. 467 per Latham C.J. at 479). In the same case Evatt J. said:

"It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him . . . It is inherent because it is an essential and integral part of any system of administering justice according to law . . . It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against the defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor), is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him."

Thus, the following principles emerge. It is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. A magistrate is not entitled to convict of an offence upon an information which discloses no offence or to convict of an offence alleged in an information if the evidence does not support that offence or to convict of an offence established by the evidence if it is a different offence from that charged in the information. If the magistrate convicts upon an information or charge which discloses no offence or for an offence with which the accused has not been duly charged, the conviction is bad.

Where a defendant pleads in answer to a charge that the information does not disclose any offence known to the law the information may be amended so as to disclose an offence pursuant to section 28 of the Court of Petty Sessions Ordinance, allowing the defendant any necessary adjournment in order to prevent any injustice. But in relation to these informations which were laid on 22 October 1980 in respect of offences allegedly committed on 10 May 1973, the proceedings could not be instituted without the written consent of the Minister because more than 3 years had elapsed since the commission of the alleged offences (section 381(4) of the Companies Ordinance). We were informed by counsel for the appellant that the forms of consent of the Minister were in identical terms to the informations and the view was apparently taken that his consent to any amendments would be necessary before the informations could be amended.

Nor is this a case in which the defects in the informations were capable of remedy by further and better particulars in the way contemplated by Evatt J. in Davies v. Ryan (supra). If these convictions were permitted to stand, they would record convictions against the appellant as "officer-indefault" contrary to section 67(3) of the Companies Ordinance 1962, whereas there is no such category of offender in section 67(3) or indeed in any other provision of the Companies Ordinance 1962.

There is a further reason why it is not just to ascribe to the words "officer-in-default" a meaning which will bring the appellant within section 67(3). I have had the benefit of reading the judgment of Woodward and Keely JJ. in draft form. I agree with their statement that there are a number of offence-creating provisions in the Companies Ordinance which refer to "an officer of the company who is in default". Their Honours refer to the range of conduct which might be embraced by this description of the offender. As their Honours say, it may be alleged that the offender was guilty of an act or ommission and he is not told by the mere use of the phrase whether his responsibility is alleged to be direct or indirect or even whether his default is said to be wilful or negligent. All he knows is that he is said to be in some unspecified way involved in the contravention of the Ordinance by the company of which he is an officer.

Section 379(8) of the Ordinance states that "the phrase 'officer who is in default' . . . includes an officer of the company or corporation who knowingly and wilfully authorizes or permits the commission of an offence". I agree with their Honours that this provision is intended to specify and define one way, which might otherwise have been in doubt, in which an officer may be in default.

According to the Shorter Oxford Dictionary "default" as a noun means "1. fault. 2. An imperfection, defect, blemish. 3. Failure to act; neglect; failure to perform some legal requirement or obligation. 4. Culpable neglect of some duty or obligation. 5. A failure in duty; a fault, misdeed, offence. 6. Failure; esp. to meet financial engagements" hence "remiss". The underlined words were stressed by counsel for the respondent. Section 379(8) is an inclusive definition and should not be read as covering all cases in which officers may be in default.

Thus there is a latent ambiguity in the type of conduct for which the offender is liable to be convicted. If the appropriate phrase is not used, the mystery surrounding his conduct deepens and the ambiguity is less susceptible to solution. In my view he is entitled to be categorised accurately so that he may at least have the benefit of the clues provided by section 379(8), in addition to such particulars as are appropriate before he joins issue or otherwise with the allegation against him by his plea.

For these reasons I would allow the appeals, and set aside the convictions and penalties imposed by the Magistrate.