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Federal Court of Australia |
Last Updated: 17 February 1999
WORDS AND PHRASES - "Commonwealth officer"
Federal Court of Australia Act 1976 (Cth) s 30A
Crimes Act 1914 (Cth) ss 3, 72(b)
Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 at 305 referred to
Director of Public Prosecutions Reference (No 1 of 1984) [1984] VR 727 at 729, 730-731 applied
Director of Public Prosecutions Reference No 1 of 1992 [1992] 2 VR 405 applied
Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 at 250-1, 263 applied
Director of Public Prosecutions (Commonwealth) Reference No 1 of 1996 [1998] 3 VR 217 referred to
Director of Public Prosecutions (SA) v B [1998] HCA 45, 72 ALJR 1175 at 1181 referred to
R v Cushion (1997) 150 ALR 45 at 47 referred to
Austin v Parsons (1986) 40 SASR 534 at 539 referred to
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 applied
R v Prasad (1979) 23 SASR 161 referred to
Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 referred to
R v R [1990] HCA 51; (1989) 18 NSWLR 74 referred to
IN THE MATTER of a submission pursuant to Section 30A of the Federal Court of Australia Act 1976 of a question of law for the determination of a Full Court of the Federal Court of Australia
and
IN THE MATTER of a trial upon indictment in the Supreme Court of the Australian Capital Territory bearing number SCC 150 and 151 of 1996 in which the Commonwealth Director of Public Prosecutions was the prosecutor on behalf of Her Majesty the Queen and in which "G" and "H" were the accused.
AG 36 of 1998
MILES, O'LOUGHLIN & WEINBERG JJ
12 FEBRUARY 1999
CANBERRA IN THE FEDERAL COURT OF AUSTRALIA IN THE MATTER of a submission pursuant to Section 30A of the Federal Court of Australia Act 1976 of a question of law for the determination of a Full Court of the Federal Court of Australia AND: JUDGES:
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AG 36 of 1998
IN THE MATTER of a trial upon indictment in the Supreme Court of the Australian Capital Territory bearing number SCC 150 and 151 of 1996 in which
the Commonwealth Director of Public Prosecutions was the prosecutor on behalf of Her Majesty the Queen and in which "G" and "H" were
the accused.
MILES, O'LOUGHLIN & WEINBERG JJ DATE OF ORDER: 12 FEBRUARY 1999 WHERE MADE: CANBERRA
THE COURT ORDERS THAT:
The questions submitted to the Court for its determination under s 30A of the Federal Court of Australia Act 1976 (Cth) should be answered as follows:
Question 1: Whether a contractual obligation is sufficient to constitute a "duty" for the purposes of Section 72 of the Crimes Act 1914?
Answer: Not answered.
Question 2: Whether his Honour was correct, as a matter of law, in holding that the evidence at the conclusion of the Crown case was not capable of establishing the existence of a duty to make the entries referred to in the first count to the sixth count inclusive at the time of completing and forwarding each Cash Balance Summary of Transactions form?
Answer: No.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | AG 36 of 1998 |
|
IN THE MATTER of a submission pursuant to Section 30A of the Federal Court of Australia Act 1976 of a question of law for the determination of a Full Court of the Federal Court of Australia | |
|
AND: | IN THE MATTER of a trial upon indictment in the Supreme Court of the Australian Capital Territory bearing number SCC 150 and 151 of 1996 in which
the Commonwealth Director of Public Prosecutions was the prosecutor on behalf of Her Majesty the Queen and in which "G" and "H" were
the accused.
|
|
JUDGES: | MILES, O'LOUGHLIN & WEINBERG JJ |
| DATE: | 12 FEBRUARY 1999 |
| PLACE: | CANBERRA |
The Court
1 This appeal comes before a Full Court as a reference appeal under s 30A of the Federal Court of Australia Act 1976 (Cth) ("the Act") the relevant subsections of which provide as follows:
"Reference appeals2 The reference appeal was initiated by the filing in the Australian Capital Territory District Registry of a special case which set out the questions of law submitted for the determination of the Full Court.
30A (1) Where:
(a) a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory; and
(b) the person has been acquitted in respect of the whole or any part of the indictment;
an appropriate authority may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court , on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial.
(2) The Full Court shall hear and determine the question.
(3) A determination made by the Court under this section does not invalidate or affect any verdict or decision given at the trial.
(4) Any person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory is entitled to be heard in the proceedings to determine the question.
(5) If it appears that a person who was charged at the trial in, or affected by the decision of, the Supreme Court of the Australian Capital Territory does not propose to be represented in the proceedings to determine the question, the appropriate authority who submitted the question for determination shall instruct counsel to argue the question on the person's behalf.
...
(8) In this section:
"appropriate authority" means:
(a) the Attorney-General of the Commonwealth; or
(b) the Attorney-General of the Australian Capital Territory; or
(c) the Director of Public Prosecutions of the Commonwealth ; or
(d) the Director of Public Prosecutions of the Australian Capital Territory."
The special case
3 The special case may be summarised as follows. On 30 March 1998 the respondents, "G" and "H", were arraigned in the Supreme Court of the Australian Capital Territory on an indictment containing twelve counts alleging offences against s 72(b) of the Crimes Act 1914 (Cth) ("the Crimes Act"). Section 72(b) provides:
"72. Any person who, being a Commonwealth officer, fraudulently and in breach of his duty:4 The prosecution led evidence from a series of witnesses, all of whom were at all material times employees of the Australian Postal Corporation ("Australia Post"). The witnesses gave evidence to the effect that, on or about 1 September 1994, each of the accused executed a Licensed Post Office Agreement between Australia Post and themselves as joint licensees. Under that agreement, Australia Post licensed the accused to operate the O'Connor Licensed Post Office in Canberra.
...
(b) omits to make any entry in any book, record or document;
shall be guilty of an indictable offence.
Penalty: Imprisonment for 7 years."
5 Clause 6 of that agreement provided:
"6. RELATIONSHIP OF PARTIESThe "Services" were set out in an annexure to the agreement. They included accepting lodgement of bulk mail items on a charge or cash basis. For providing this service, the licensees were to be paid a commission of two per cent of the lodgement value.
(a) Australia Post appoints and authorises the Licensee to act as an independent distributor of the Products.
(b) Australia Post appoints and the Licensee accepts appointment as an agent of Australia Post for the purposes of providing the Services. Notwithstanding the appointment of the Licensee as Australia Post's agent the Licensee shall be an independent contractor in the conduct and operation of the Licensee's business at the Premises.
(c) The relationship of the parties is as provided in Clause 6(a) and (b) and no relationship of employment or partnership is intended or created.
(d) The Licensee shall not as agent have any right or authority to bind Australia Post in any way except in the provision of Services in accordance with the terms of this agreement or by written authority of Australia Post."
6 Clause 12 of the agreement set out certain obligations of the Licensee including:
"During the term of this agreement the Licensee shall:7 The relevant section of the Licensed Post Office Manual was s 3.1.7. This provided in part:
...
(j) maintain true and accurate accounting records and report to Australia Post in the manner and frequency prescribed in the Licensed Post Office Manual."
"There are two regular reporting requirements applicable to all Licensees. These are:
* The Office Cash Balance Summary. This Summary and associated documentation must be forwarded to your Area/Controlling Postal Manager on a regular basis. The frequency varies according to the size of the office, but must be daily where third party agency transactions are involved.
- for offices with retail technology, this summary form is called FAP1.
- for other offices it is called FAP150."
The reference in the Manual to the "Office Cash Balance Summary" and to "FAP150" was a reference to a form issued by Australia Post headed "Cash Balance Summary of Transactions". That form contained both a receipts column, and a payments column, with a series of rows across the page for designated entries. It made provision for recording both "third party agency transactions", and other transactions in which the licensees did not act as agents for third parties in the receipt or payment of cash. An example of this form, with some slight modifications is set out below.
Distribution Non Electronic Non Accounting Office/ Date
Prepare in triplicate. Post Office Agency/Licensed Post Office
Forward original and duplicate (LOGO)
To Administering Post Office.
Triplicate retained. Cash Balance Summary of Transactions Note: Transactions should be entered on this form. If insufficient space use appropriate transaction summary. After processing by the administrating office the duplicate will be returned to the Post Office/Post Office Agency Licensed Post Office for association with the Agency copy.
|
To Administering Post Office | Payments | Code
Item | No | $ | c | ||||
| From PO/POA/Licensed Post Office Include Work Centre Code |
Mo Paid | 21 | |||||||
| Aust Post Expenditure | 23 | ||||||||
| Agency Statements | 24 | ||||||||
| Aust Post Refunds | 28 | ||||||||
| Receipt | Item
Code | No | $ | c | COD Remittances | 26 | |||
| Telecom Expenditure | 22 | ||||||||
| Brought Forward | 18 | Payments in Stamps | 30 | ||||||
| Cash received from Control Office | 14 | CSB Withdrawals | 34 | ||||||
| Number of Money Orders issued from to | Other Departments Expenditure | 31 | |||||||
| Value of Money Orders issued as per stubs attached |
1 | Credit Sales * | 25 | ||||||
| Commission on Money Orders issued | 2 | Outward Remittances | 33 | ||||||
| COD and Custom Duty Parcels | 3 | ||||||||
| Telecom Revenue | 5 | Stock Discounts * | 27 | ||||||
| CSB Receipts
As per CSB9 attached | 15 | Dishonoured Cheques Transferred | 29 | ||||||
| Aust Post Revenue | 6 | Deficiency Adjustments* | 35 | ||||||
| DSH Insurance | 9 | Error Notices | 35 | ||||||
| Other Agency | 12 | Licensee Payments (FAP625)(LPO4) | |||||||
| Surplus Adjustments* | 7 | Other payments | |||||||
| Error Notices | 16 | (A) Total Payments | |||||||
| Other
Collections | Balance items FWD'd to Administering PO | ||||||||
| Cash | |||||||||
| Cheques | |||||||||
| Credit Vouchers | |||||||||
| EFT Card
Totals PBK | |||||||||
| (B) Sub Total | |||||||||
| Balance Items retained by PO/POA/LOP | |||||||||
| Cash reserve | 60 | ||||||||
| Cash | 60 | ||||||||
| Cheques | 61 | ||||||||
| Bank Wallet/Bag | 63 | ||||||||
| Part Paid Vouchers | 64 | ||||||||
| Special Items | 65 | ||||||||
| Less Deduct Items | 71 | ||||||||
| EFT Card
Totals P.B.K. | (C) Sub Total (Items 60-71) C/Fwd | 37 | |||||||
| Total Receipts | Grand Total (A) (B) (C) | 38 | |||||||
| Amount Owing by
Administering Post Office | |||||||||
| Grand Total | 19 | ||||||||
|
................................................ Postal Manager/Post Office Agent/Licensee
....../...../..... Date | PO/POA/LPO
Date Stamp |
....................................................... Receiving Officer
....../...../..... Date | Administering Office Date Stamp | ||||||
| * Not applicable to Licensed Post Offices
Licensed Post Offices only. Will be forwarded to administering P.O. | Controlling
Office Use Only |
Amount Owing $ | Despatched as
Remittance / / | Security Post No | |||||
| ...............................................................................
Remitting Officer Checking Officer |
8 The procedure that operated at licensed post offices at the relevant time was for all particulars of bulk mail lodged with a licensed post office to be entered onto what was described as a Bulk Postage Docket. An example of such a Docket, with some slight modifications is set out below.
(Logo)
Bulk Postage Docket (Number) Customer's Name
Office Code and Name a.m.
p.m. Number of
Articles Code ...................................................
Receiving Officer
Particulars checked and found correct Office stamp
Time Lodged
Product
Rate Postage $ c $ c Received the sum of Total $
A summary of these Bulk Postage Dockets was to be included on the Cash Balance Summary of Transactions form. A summary of the total
cash provided to the licensees with the bulk postage was placed in the "Aust Post Revenue" row on the form, and the numbers of Bulk
Postage Dockets were to be summarised in the "Other Collections" row on the same form. The Cash Balance Summary of Transactions
form was then to be forwarded to the Area/Controlling Postal Manager, at the Administering Post Office. A copy of each Bulk Postage
Docket was to be forwarded with the Cash Balance Summary of Transactions form on which it was entered, for cross checking.
9 The bulk mail itself was despatched without any paperwork to an entirely different location, the Canberra Mail Centre. There it was processed, without any cross checking as to whether any payment had been received to cover the cost of postage. The effect was that if a licensed post office accepted cash for bulk mail but did not enter it onto the Cash Balance Summary of Transactions form, and did not forward the Bulk Postage Docket with that form, Australia Post would be unaware of the receipt of the money. It would still, however, process the mail, and despatch it to its destination.
10 An audit of the O'Connor Licensed Post Office was carried out by Australia Post officers on 30 November 1994. During the course of that audit, sixteen Bulk Postage Dockets were found in a cash drawer in the office that had not yet been brought to account on any Cash Balance Summary of Transactions form. The respondents were thereupon instructed to bring them forthwith to account. This they did, on a Cash Balance Summary of Transactions form prepared on that same day.
11 On 14 December 1994, a further audit of the O'Connor Licensed Post Office was conducted by Australia Post officers. At that time, no Bulk Postage Dockets which had not been brought to account were discovered.
12 Between the date of the audit on 14 December 1994, and the closure of the Licensed Post Office on 4 January 1995, the respondents lodged with Australia Post Cash Balance Summary of Transactions forms for the following dates:
14 December 199413 None of those forms recorded the receipt of any cash for bulk postage. No Bulk Postage Dockets were referred to in the forms whether by number, or in any other way.
15 December 1994
17 December 1994
19 December 1994
20 December 1994
21 December 1994
22 December 1994
23 December 1994
28 December 1994
29 December 1994
30 December 1994
3 January 1995
4 January 1995
14 On 4 January 1995 the respondents ceased trading at the O'Connor Licensed Post Office. They sent a letter to Australia Post in the following terms:
"Dear Ken,15 On Australia Post becoming aware of the closure of the O'Connor Licensed Post Office, its officers attended those premises in the company of the respondent "G". They located, amongst other things, twelve Bulk Postage Dockets, most of which bore date stamps, as follows:
We regret to inform you that the O'Connor Post Office ceased trading on 4th January, at 1:00PM.
The assurances given by ATSIC's Commissioners regarding ATSIC funding assistance have not been met. Our dealings with ATSIC have been very frustrating and we are lodging an appeal, a copy of which you will find enclosed. We have both been greatly distressed by recent events and ATSIC's failure to act. Kudjeri's O'Connor Post Office was to be a cultural landmark in the Canberra region. It is unfortunate, and somewhat ironic, that Australia Post is now foreclosing on this unique cross-cultural marriage. We have been betrayed by both "black" and "white" institutions.
You may nevertheless be assured that all outstanding monies owed to Australia Post will be met in full. A decision from ATSIC is expected within a few weeks and if, as we anticipate, the appeal is successful you will be paid in full on that day. If the appeal is unsuccessful we will need to make alternative arrangements. Once again you may be assured that our debts will be met in full and we ask for your continued forbearance in this matter.
Yours sincerely,
(signed "H" and "G")"
DOCKET NUMBER
17 An audit of the O'Connor Licensed Post Office after it ceased trading revealed a cash deficiency of $10,477.84. As well, the licensees owed Australia Post $6,743.93 for stock. The total amount owing to Australia Post by the licensees as at the closure of the business was $17,221.77.
18 At the conclusion of the Crown case, counsel for the respondent "G" did not make any submission that there was no case to answer. Counsel for the respondent "H" made a no case submission relying upon matters which are not presently relevant, and which were not, in any event, regarded by the trial judge as having any merit.
19 The trial judge himself then raised the issue whether the element of "breach of duty" in s 72(b) of the Crimes Act 1958 had been made out. After hearing submissions in relation to this matter, his Honour ruled, in part:
"Now, I am of the view that it has not been established, nor is there any evidence of any legal duty, contractual or otherwise, in such specific terms. In any event it is by no means clear to me that the term "duty" in section 72 refers to a purely contractual duty, though I am not prepared to rule on that one way or the other as that question has been neither researched nor fully argued."20 His Honour then directed that verdicts of acquittal be entered on each of the twelve counts on the indictment for each of the accused.
21 The Commonwealth Director of Public Prosecutions submitted for the determination of a Full Court of the Federal Court the following two questions of law which were said to have arisen at, or in connection with the trial:
"(1) Whether a contractual obligation is sufficient to constitute a "duty" for the purposes of Section 72 of the Crimes Act 1914.The background to the reference appeal
(2) Whether his Honour was correct, as a matter of law, in holding that the evidence at the conclusion of the Crown case was not capable of establishing the existence of a duty to make the entries referred to in the first count to the sixth count inclusive at the time of completing and forwarding each Cash Balance Summary of Transactions form."
22 It should be noted that s 3 of the Crimes Act provides for an extended definition of "Commonwealth officer" for the purposes of, inter alia, the offence of falsification of books or records by officers under s 72 of that Act. That extended definition is as follows:
"Commonwealth officer" means a person holding office under, or employed by, the Commonwealth, and includes:23 The essence of the prosecution case was that each accused, being relevantly a Commonwealth officer, had acted fraudulently, and in breach of duty, by omitting to make an entry in a document contrary to s 72(b) of the Crimes Act. The documents from which the entries were allegedly omitted were the various Cash Balance Summary of Transactions forms lodged by the respondents between 14 December 1994 and 4 January 1995. As noted earlier, these forms were otherwise known as FAP150 forms. The details which were said to have been required to be entered in those forms came from the twelve Bulk Postage Dockets, to which reference was made above, the first of which was undated, and five of the last six of which were dated 4 January 1995.
...
(c) for the purposes of sections 70, 72, 73, 74 and 75, a person who, although not holding office under, or employed by, the Commonwealth, a Territory or a public authority under the Commonwealth, performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth ..."24 The Licensed Post Office Agreement which had been entered into between the respondents and Australia Post on 1 September 1994 contained a number of important provisions in addition to cl 6 and cl 12(j) set out above in the special case.
25 Clause 3 was headed "Fundamental Provisions". It provided as follows:
"(a) The agreement is subject to the Act [the Australian Postal Corporation Act 1989 (Cth)].26 Clause 9 provided for the payment of fees, commissions and discounts. Clause 9(a) provided:
(b) Australia Post and the Licensee shall comply with the Act, the Post Office Rules and the Licensed Post Office Manual at all times except as provided for in Clause 34b)."
"Australia Post will pay to the Licensee the Fees and Commissions for Services set out in Part B of Annexure A and allow the Discounts for Products set out in Part A of Annexure A."Clause 11 set out the obligations imposed upon Australia Post. Paragraph (f) provided that during the term of the agreement, Australia Post was required to provide a range of specialised accounting and business reporting forms at no cost to the licensee to be used by the licensee in the operation of a licensed post office.
27 Clause 12 set out the obligations imposed upon the licensee. It provided in paras (b) and (i) that:
"During the term of this agreement the Licensee shall: ...28 The term "Postal Business System" set out in cl 12(b) was defined in cl 1 as meaning the business format for operating a licensed post office using the "Techniques" and the "Image". The "Techniques" to which reference was made were defined as the operating procedures described in the Licensed Post Office Manual and the Post Office Rules. The "Image" meant the distinctive colour schemes, designs, trade marks, logos and visible features of the Licensed Post Office.
(b) adopt the Image, comply with the Postal Business System and generally provide prompt, efficient, quality customer service:
...
(i) be liable for operational, managerial and financial obligations relating to the operation of the Licensed Post Office. These obligations cannot be sub-contracted by the Licensee to a third party;
..."29 Clause 15 provided that Australia Post could, upon one day's prior notice to the licensees, during normal business hours, enter the premises and have access to all records relating to the operations of the Licensed Post Office, to conduct operational inspections as detailed in the Licensed Post Office Manual and to conduct financial inspections. Where Australia Post had a reasonable belief that there may have been a breach of the agreement or a discrepancy in the accounting records of the Licensed Post Office it could, at any time during normal business hours, without prior notice to the licensees, enter the premises for operational and financial inspections.
30 Clauses 17(b), (c) and (d) rendered Australia Post liable for debts, deficiencies, losses, damages and liabilities incurred or arising out of any case where the licensees acted as an agent of Australia Post for the purpose of providing the services except in certain specified circumstances.
31 Clause 20 permitted Australia Post to terminate the agreement by giving written notice to the licensees, effective immediately if the licensees wilfully or fraudulently misrepresented any report or claim for commission or fees in connection with the operation of the Licensed Post Office.
32 Finally cl 34(b), to which reference was earlier made, provided that where the parties agreed that it was not practicable for a provision of the Licensed Post Office Manual or Post Office Rules to be complied with by the licensees, Australia Post could exempt them from compliance with such a provision by an instrument in writing. If the licensees sought an exemption in an emergency, that exemption could be granted by telephone provided that it was minuted by each party and the exemption was recorded in writing as soon as practicable.
The evidence led at the trial
33 It seems that right from the commencement of the agreement on 1 September 1994 the respondents found themselves in difficulty in meeting their financial commitments to Australia Post. The respondents were obliged to make payment for various products in stock. A number of demands were made for such payments, but these demands were not met. The respondents indicated that they had no funds available to make these payments because they were awaiting a grant or loan from ATSIC.
34 As noted in the special case, on 30 November 1994 a supervising manager attended at the Post Office and conducted an audit. He discovered that there were a large number of Bulk Postage Dockets in a cash drawer which had not been brought to account. A special form FAP150 was filled out on that day which took up these Dockets. The respondent "G" was told in clear terms that Bulk Postage Dockets had to be brought to account. She signed a report of a field visit confirming that she understood her obligations in this regard.
35 Exhibit G to the special case consisted of the first four Bulk Postage Dockets which related to the first four counts of the indictment. It seems that what happened was that when someone arrived with a collection of letters or parcels which they wished to post they were billed for the postage. However, no stamps were affixed to the individual items. They were simply sent off to another post office for franking and onward posting. The amounts designated in the Bulk Postage Dockets should have been paid by the respondents to the postal authorities to cover the cost of the postage. Instead, however, the amounts in question were retained by the respondents. The Cash Balance Summary of Transactions or FAP150 forms lodged with the Administering Post Office omitted the amounts contained in the twelve Bulk Postage Docket forms, each one of which made up one count in the indictment.
36 As noted earlier, each Cash Balance Summary of Transactions form contained an item in the receipts column headed "Other Collections". It was under that item, the Crown contended, that the cash received in respect of the Bulk Postage Docket payments should have been entered. The failure to record the amounts in question, and to cross reference them with the particular Bulk Postage Docket to which they referred, meant that Australia Post had no record of the cash received by the respondents for bulk postage in respect of these items. Australia Post incurred the cost of mailing them without being recompensed.
37 When the respondent "G" was interviewed on 14 December 1994 in relation to the discrepancy between the amount of cash which should have been on hand, and the amount which was actually there, she indicated that she had spent the money received for the bulk postage because she had no money available to purchase stamps for the post office. She mentioned that she was awaiting a loan from ATSIC to enable her to overcome her cashflow difficulties. This was said by the Crown to demonstrate that she was well aware of her obligations under the agreement, and that she had acted fraudulently in order to keep the business afloat.
38 On 5 January 1995 after Australia Post staff inspected the premises, and discovered the twelve Bulk Postage Dockets not previously brought to account, they compiled a new FAP150 form which brought the Dockets to account. The respondent "G", in the presence of the respondent "H", said that they had needed the money from the bulk postage payments to pay expenses, and to keep the business going.
39 In essence, the prosecution case depended upon the Crown establishing that the reporting requirements contained within the Licensed Post Office Manual under s 3.1.7 required each Cash Balance Summary of Transactions form which had to be forwarded to the Area/Controlling Postal Manager daily (because it contained a record of third party agency transactions, including, for example, money received on behalf of Telecom) to contain an accurate and up to date record of all cash receipts which had come into the hands of the licensees since the last FAP150 form had been remitted.
40 There was evidence in the trial that the respondents were receiving monies on behalf of third party agencies, and were, accordingly, lodging FAP150 returns on a daily basis for that reason.
41 The Crown case was that each Bulk Postage Docket should have been returned, or referred to, in the Cash Balance Summary of Transactions forms forwarded by the respondents between 14 December 1994 and 4 January 1995 inclusive. Whenever the respondents lodged one of these forms, they were obliged to ensure that it was true and accurate as an accounting record. Each form should have recorded all cash received by the licensees since the last form was lodged. The failure to account for the cash received as set out in the Bulk Postage Dockets meant that the licensees were not maintaining true and accurate accounting records. This was in breach of their obligations under cl 12(j) of the agreement.
42 It is important to note that in respect of counts seven to twelve, five of the six Bulk Postage Dockets in question were dated 4 January 1995. They were, in fact, brought to account on 5 January 1995, albeit only after the inspection by Australia Post employees on that date. It was accepted by the Crown on the reference appeal that the trial judge correctly directed an acquittal in respect of those counts. There was, on any view, no requirement that they be brought to account until 5 January 1995.
43 At the trial the Crown had contended that the dates on these five Bulk Postage Dockets were false, and that the cash which had in fact been received in relation to them had been received some days prior to 4 January 1995. That contention was not pressed on the reference appeal. It was for that reason that the second question of law submitted for the determination of the Court was confined, in terms, to counts one to six inclusive of the indictment.
44 The evidence in the trial was that the money received by the licensees in respect of the bulk postage items should have been remitted in its entirety. Then two percent of the money would have been remitted to the respondents by Australia Post as their commission for the service which they had provided.
45 The trial judge, in ruling that there was no case to answer, noted that the evidence did not disclose anything said by any Australia Post employee on 30 November 1994, or on 14 December 1994, which would have conveyed to either accused that she was obliged to record all sums of cash received in relation to bulk postage each time that she filled out an FAP150 form.
46 His Honour noted, however, that on 30 November 1994, the date of the first audit, a number of Bulk Postage Dockets had been found which had not been brought to account in any previous FAP150 form. The Australia Post employee who conducted that audit, a Mr Quinn, had made it clear to the respondents that they were obliged to record or report such Dockets, or the amounts that they represented, in the FAP150 forms which they lodged. Indeed, Mr Quinn had required one of the respondents sign his field notes confirming that it was understood that these Dockets were to be brought to account.
47 The Crown contended that it was clear that there was an inference available that the respondents had been told that they were required to report all such sums not previously accounted for in any earlier Cash Balance Summary of Transactions form in each new form which they filled out. This would ensure that Australia Post was provided with accurate and up to date information concerning all cash receipts of the business. To omit any cash receipts from any of these forms would render them incomplete, and misleading.
48 The trial judge held that the Crown had failed to demonstrate that there was a duty on the part of each respondent to account for the sums of cash received each time an FAP150 form was filled in and remitted to Australia Post.
Did the first question of law arise at or in connection with the trial?
49 Mrs Hampel QC, for the second respondent (with whom Mr Livingston for the first respondent joined) submitted by way of preliminary objection that the first question of law submitted to the Court for its determination "did not arise at or in connection with the trial". She submitted, therefore, that the Court had no jurisdiction to entertain the reference of that question, and that the Court should not answer it.
50 Mr Howard QC for the Commonwealth Director of Public Prosecutions submitted to the contrary. He submitted that the first question involved a matter of law which had been relevant to the issues raised in the case, and which had been the subject of some consideration, and comment, by the trial judge.
51 Provisions such as s 30A of the Act have been in existence for a number of years. These provisions do not all take precisely the same form. For example, s 450A of the Crimes Act (Vic) provides, in part, as follows:
(1) Where a person tried on an indictment or presentment ... has been acquitted ... the Director of Public Prosecutions may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer the point of law to the Court of Appeal, and the Court of Appeal shall, in accordance with this section, consider the point of law and gives its opinion on it.52 Other examples of such reference powers may be found in the Criminal Appeal Act 1912 (NSW) s 5A(2) and the Queensland Criminal Code s 669A.
(2) For the purpose of its consideration of a point referred to it under this section the Court of Appeal shall hear argument -
(a) by the Director of Public Prosecutions or by counsel on his behalf; and
(b) where the acquitted person desires to present any argument before the court, by counsel on his behalf or, with the leave of the court by the acquitted person himself.
...
(4) A reference under this section shall not in any way affect the trial in relation to which the reference is made or any acquittal in that trial."53 The purpose of provisions of this type is to enable appellate courts to correct errors of law made at the trial of accused persons, without affecting in any way any acquittal in respect of which the reference is made; see Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 at 305. They enable the Crown to obtain the opinion of an appellate court on a point of law which arises in a case in which an accused person is acquitted. They were intended to enable the Attorney-General originally, and now the Director of Public Prosecutions, "to seek clarification of a point of law which arose in the relevant trial, and which has led to confusion in the past or is likely to lead to confusion in the future ..."; Director of Public Prosecutions Reference (No 1 of 1984) [1984] VR 727 at 729.
54 A question referred, for example, under s 450A, must raise "a point of law that arose in the case". Where what is sought to be challenged is the manner of exercise of the trial judge's discretion, this does not ordinarily raise such a point: Director of Public Prosecutions Reference No 1 of 1992 [1992] 2 VR 405. Consequently, the question whether a trial judge properly excluded evidence of statements of a confessional nature where the sole impediment to their reception was that the statements were made whilst the accused was in unlawful custody was held not to be a question which could be referred under s 450A: Director of Public Prosecutions Reference No 1 of 1984 (supra). Similarly, a question asking whether particulars supplied in advance of the trial had a binding effect, and whether or not such particulars limited the evidentiary material which might be led before the jury, posed an hypothetical question which did not fall within s 450A; Director of Public Prosecutions Reference No 1 of 1992 (supra).
55 The procedure under s 450A is not designed or intended to answer hypothetical questions of law. Where a question raised invites an opinion of the Court of Appeal on a point of law not raised for the consideration of the trial judge and a point upon which he did not in any way pronounce, the question is hypothetical; Director of Public Prosecutions Reference No 1 of 1992 (supra).
56 In Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 the Victorian Court of Appeal dealt with a reference in which twelve points of law had been referred to the Court for its determination. It was submitted on behalf of the respondents that the first four and last five of the points raised by the reference did not "arise" in the case within the meaning of s 450A of the Crimes Act 1935 . Brooking JA, who delivered the judgment of the Court of Appeal, with which Winneke P and Tadgell JA agreed, stated at 250-1:
"Provisions like s. 450A of the Crimes Act do not enable the director to set in train a roving judicial commission on a particular branch of the law: Attorney-General's Reference (No 3 of 1994) [1997] UKHL 31; [1997] 3 W.L.R. 421 at 438 per Lord Mustill. They enable the court to correct an error of law made at the trial: Mellifont v Attorney General (Qld) [1991] HCA 53; (1991) 173 C.L.R. 289, in the joint judgment at 305. This requires that there be a question of law that has been decided: R. v. S. (1953) 53 S.R. (N.S.W.) 460 at 464; R. v. Davy (1964) 84 W.N. (Pt 1) (N.S.W.) 42 at 53-4; Attorney-General's Reference (No. 1 of 1975) [1975] Q.B. 773 at 778. Sometimes it is said that sections allowing the reference of a point of law which has arisen in the case do not permit the reference of hypothetical cases: Attorney-General's Reference (No. 4 of 1979) (1980) 71 Cr. App. R. 341 at 346; [1981] 1 All E.R. 1193 at 1196; R. v. Sutton [1986] 2 Qd. R. 72 at 79 per Shepherdson J; Director of Public Prosecutions Reference (No. 1 of 1992) [1992] 2 V.R. 405 at 407 per Crockett and Smith JJ. and at 415 per Marks J. But to say this is not to assert a limit upon the scope of the section not to be found in its express terms: "hypothetical cases" are simply cases which do not fall within the section, in that the point of law, or supposed point of law, did not arise in them.57 This judgment, and in particular the conclusion reached by his Honour that the points of law referred to the Court of Appeal had arisen in that case, was the subject of an application for special leave to appeal to the High Court. It is worthy of note that special leave was refused on 11 December 1998. The principles set out by Brooking JA, and adopted as correct by the other members of the Court of Appeal, seem to us to be readily applicable to s 30A of the Act notwithstanding the slightly different language in which that section is drafted. His Honour's judgment should, in our opinion, be regarded as a correct analysis of the construction of provisions of this type.
In my opinion, in order that a point of law may be said to have been decided by the trial judge, and so to have arisen in the case, it is not necessary that the point should have been in contest between the Crown and the accused: it is enough that the judge has determined the point. Various positions are possible. The Crown and counsel for the defence may invite the judge to give different answers to a question of law. On the other hand, the Crown may, where some point of law has been raised, either by the Crown itself or by the judge, invite the judge to determine the point in a certain way and the accused, being unrepresented, or even being represented, may put no submission at all. Or, on the raising of a question of law by counsel for the defence, who submits that it should be answered in a certain way, the Crown Prosecutor may say that the question is a doubtful one and suggest that a ruling be deferred until the Crown has had an opportunity of considering the point and of defining its position and presenting argument. The judge, thinking that a prompt determination is desirable and having formed a clear view that the point taken is a bad one, may think it appropriate to give his ruling at once. To take another example, the Crown may expressly concede that the view put forward by the defence on a point of law is the correct one, or may so conduct itself as tacitly to concede the point. In Director of Public Prosecutions Reference (No. 1 of 1992) at 415 Marks J. left open the question whether a concession made by the Crown Prosecutor at the trial would lead the court to decline to correct an error of law under s. 450A. (Whether his Honour was concerned that the concession might mean that the point had not arisen, or with a possible discretion in the court to decline to give its opinion on a point which had arisen, is not clear. His Honour spoke of declining the jurisdiction.)
In my opinion, a point of law has arisen in the case within the meaning of s. 450A if it has been decided by the judge, and it is unnecessary that the point should have been in contest between the Crown and the defence at the trial. Nor is the making of an express or implied concession by the Crown at the trial inconsistent with the judge's having decided it. The existence of a dispute between the parties at the trial with regard to a point of law is not essential to that point's being decided by the judge (and so arising). On the other hand, the question whether a position was taken by the Crown and the defence at the trial with regard to the point may well bear on whether that point was actually decided by the judge." (emphasis added)
58 No matter how one reads the trial judge's comments in the instant case concerning the nature of the duty which must exist in order to give rise to a possible contravention of s 72 of the Crimes Act, it would be torturing the language to suggest that the question of law identified by the Commonwealth Director of Public Prosecutions, and referred to this Court, was "actually decided" by his Honour. That is precisely what his Honour stated he had not done, having regard to the fact that the matter had not been fully argued before him.
59 It does not follow that it would necessarily be inappropriate for this Court, while declining to express an opinion on the point of law said to be contained in this question on the reference, to "comment" or make "observations" upon any aspect of the law purportedly raised by it which, the Court is satisfied, warrants some such "comment". Such a course was followed by the Full Court of the Supreme Court of Victoria in Director of Public Prosecutions Reference (No. 1 of 1984) (supra) at 730-731. The Full Court there found that the point of law raised for its consideration involved nothing more than a question as to how a trial judge ought to exercise his exclusionary discretion in certain circumstances. This did not raise a "point of law" within the meaning of s 450A of the Crimes Act. The Full Court first observed, at 730:
"That is not to say that in some circumstances it may not be possible to distil a point of law which has arisen in the exercise of a discretion, for example the formulation of the correct legal test upon which the discretion should be exercised. A question of such a kind properly formulated might be capable of raising a point of law for the purpose of a reference under s. 450A of the Crimes Act."60 Having then determined that the points of law said to be contained in the reference should not be the subject of any expression of opinion on the part of the Court, their Honours continued:
"On the other hand, the material before us reveals a situation on which we should comment. Not only did the learned trial Judge act in the way we have already described, he also treated as overstated certain observations made in a recent trial by a Judge of this Court which was directly relevant to the task before him ...61 Their Honours then proceeded to deal with matters raised by the reference by way of general comment. Having done so they concluded their judgment by stating:
Further, we were informed by Mr. Weinberg that a number of other Judges have taken a view similar to that taken by the trial Judge in this case and that a large number of criminal trials has been postponed pending this Court's determination of the present reference. In these circumstances we think that we should make certain observations for the assistance of trial judges, recognising, however, the dangers of a court's going beyond the precise matter which arises for decision in the case before it."
For the reasons we have given we shall express no opinion upon the reference."62 In Director of Public Prosecutions Reference (No. 2 of 1996) (supra) Brooking JA endorsed just such an approach. His Honour stated at 263:
"If I were wrong in my conclusion that points A-D and points H-L did arise in the case, I would determine that in the circumstances which have arisen it would be appropriate to do what was done in Director of Public Prosecutions Reference (No. 1 of 1984) [1984] VR 727 and make comments about those points. This is not something which the court should be too ready to do. It is important to bear in mind the fundamental limitation imposed by s. 450A of the Crimes Act and important that the ability of the court to make observations be not used so as to set at nought that fundamental limitation. But the circumstances in the present case are unusual. The questions raised by points A-D are important ones which it can be expected, will arise from time to time ..."63 It should be noted that in Director of Public Prosecutions (SA) v B [1998] HCA 45, 72 ALJR 1175, the High Court considered whether particular questions of law sought to be reserved by way of case stated for the consideration and determination of the Full Court of the Supreme Court of South Australia pursuant to s 350(1)(a) of the Criminal Law Consolidation Act (SA) had arisen "at the trial" of the respondent. The High Court held that the trial had not begun when the trial judge gave the ruling which led to the questions of law being reserved and that the questions of law had not, therefore, arisen "at the trial".
64 Their Honours Gaudron, Gummow and Hayne JJ went on to mention, as a separate issue, that the appellant had invited the High Court, in the event of its deciding that the questions had not arisen "at the trial", to express its opinion upon the issues which it was sought to agitate by the case stated. Their Honours observed at [26], ALJR 1181 that to do so would be to deliver an advisory opinion which was beyond the power of the High Court whether in its appellate or original jurisdiction.
65 Mr Howard contended that if this Court were of the view that the first question of law submitted for its determination had not arisen at or in connection with the trial, and did not therefore fall within the ambit of s 30A of the Act, it should nonetheless, in the exercise of its discretion, "comment" upon the matters raised by it. He submitted that the tentative conclusions expressed by the trial judge concerning the meaning to be accorded to the word "duty" in s 72 had the potential to lead judges of inferior courts, and magistrates, astray, and that this Court should clarify what is an important question of principle by making it abundantly plain that "duty" in the context of the section extends to a contractual duty.
66 The Court was taken by Mr Howard to the history of s 72 of the Crimes Act 1989 . That section was based on ss 441 and 442 of Sir Samuel Griffith's Criminal Code Act in Queensland. Those sections were themselves based on the English Criminal Code Bill of 1880. However the reference to "breach of duty" which is found in s 72 does not come from these precursors to s 72. It seems to have been added by the draftsman of the 1914 Act.
67 Section 72 is today in essentially the same form as when it was enacted. It is to be found in Part VI of the Act which is headed "Offences by and against public officers" and which includes ss 70 to 76. Originally all of the offences contained in Part VI were either offences by or against public officers, even s 71 of the Crimes Act. However, s 71 now relates generally to property of the Commonwealth. The Court was taken to Director of Public Prosecutions (Commonwealth) Reference No 1 of 1996 [1998] 3 VR 217 for a history of that section.
68 Section 72 of the Crimes Act was considered by the Queensland Court of Appeal in R v Cushion (1997) 150 ALR 45. That case set out the history of the legislation, but dealt with a different aspect of s 72 from that raised before this Court, namely the meaning of the word "fraudulently". As noted earlier in these reasons for judgment, s 3(d) of the Crimes Act provides an extended definition of a "Commonwealth officer" and includes within that expression "a person who performs services for or on behalf of the Australian Postal Corporation". The respondents, as licensees, were persons who performed services for or on behalf of the Australian Postal Corporation pursuant to the Licensed Post Office Agreement.
69 Paragraph (d) was introduced into the definition of "Commonwealth officer" by the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act. This was entitled "an Act to enact certain transitional provisions, make certain amendments, and effect certain repeals, in consequence of the enactment of the Telecommunications Act 1989 , the Australian Postal Corporation Act 1989 and the Australian Telecommunications Corporation Act 1989 , and for other purposes."
70 It is clear that the Federal Government's decision to privatise postal services necessitated an expanded definition of "Commonwealth officer" in order to ensure that the various offences contained within Part VI of the Crimes Act 1975 encompassed offences committed by persons such as the respondents who should be made amenable to federal criminal law. This was a conscious decision on the part of the Government, which could have left crimes committed by such persons to be dealt with by the ordinary criminal law of the States.
71 It might be thought that by expanding the definition of "Commonwealth officer" to include persons performing services for and on behalf of the Australian Postal Corporation, the legislature must have contemplated that an offence against s 72 of the Crimes Act could be committed by persons whose relationship with the Australian Postal Corporation was based solely upon contract. The "duty" the breach of which is said to be an element of the offence under that section must be the duty provided for in a contractual relationship.
72 Mr Howard drew attention to a decision of the Supreme Court of South Australia in Austin v Parsons (1986) 40 SASR 534 where Johnston J dealt with a charge under s 76 of the Crimes Act. That section formerly provided, in part:
"Any person who wilfully obstructs or resists any Commonwealth officer while engaged in the discharge or attempted discharge of the duties of his office under any law of the Commonwealth, ... or by violence or threats or intimidation of any kind interferes with or hinders or obstructs any person performing any service or function for or on behalf of the Commonwealth in the performance of that service or function shall be guilty of an offence."73 The accused was charged with having by intimidation attempted to interfere with a person who was said to be performing a function on behalf of the Commonwealth in the performance of that function. He had previously been charged before a court of summary jurisdiction with an offence against the Postal Services Act (Cth) and shortly before the date fixed for trial, had sent a letter of a threatening nature to the Director of Legal Services for the Commonwealth Attorney-General's Department in South Australia. It was the sending of this letter upon which the prosecution relied as establishing the charge of attempting by intimidation to interfere with a person performing a service or function for or on behalf of the Commonwealth.
74 Johnston J held that the individual in question, in his capacity of Director General of Legal Services, was a "Commonwealth officer". He did not, however, come within the scope of the category of a "person performing a service or function for or on behalf of the Commonwealth". His Honour, when dealing with the various categories of victim falling within the ambit of s 76, stated at 539:
"The third category is very wide indeed and wide enough to cover a person performing for example on a contractual basis any service on behalf of the Commonwealth, for example, a contractor who contracts to run a canteen on behalf of the Commonwealth, or to erect a building, lay down access roads in a Commonwealth area, and &c; or their respective employers." (emphasis added)75 In R v Cushion (supra) the Queensland Court of Appeal had referred to it a point of law said to have arisen at the trial of a person who, at all relevant times, was a detective sergeant in the Australian Federal Police. He had been charged with having committed an offence under s 72 of the Crimes Act. The trial judge at the conclusion of the Crown case had directed the jury to return a verdict of not guilty. There was no doubt in that case that the respondent was a "Commonwealth officer" within the meaning of s 72. There was no need to invoke the extended definition of that expression which is contained in s 3 of the Crimes Act. The question for decision on the reference concerned the meaning of the word "fraudulently" in s 72 which the Director submitted meant no more than "dishonestly".
76 McPherson JA who wrote the leading judgment for the Court of Appeal stated at 47:
"That the respondent was a Commonwealth officer who had acted "in breach of his duty" was, we were informed, never in dispute. In any event, it may be accepted that the entry in the search warrant that was said to be false was one that was made or caused to be made by the respondent in breach of his duty. The provisions of s 9(a) and s 28 of the Australian Federal Police Act 1979 (Cth), read with Forms 1 to 3 of the Australian Federal Police regulations, are sufficient to support such a conclusion. It is a matter that merits specific mention here only because, at one stage of the submissions before us, the expression "in breach of duty" in s 72 was said to bear on the meaning of the word "fraudulently" in that section. The submission was that to construe the word fraudulently as "dishonestly" would make the reference in that section to breach of duty unnecessary because it was inconceivable that a Commonwealth officer could act in breach of duty yet honestly. Making a false entry in a search warrant, or causing it to be made, is plainly a breach of the duty under Commonwealth law of a member of the Australian Federal Police, as well as being a contravention of his obligation sworn to or affirmed under the regulations to act faithfully in the discharge of those duties according to law, as to which, see Forms 2 and 3 in Sch 4 to those regulations. In the present case, therefore, the duty breached is for the most part statutory in origin. In many other cases involving Commonwealth officers, however, the duty may well be little more than expressly or impliedly contractual and there is no reason to assume that a breach of such a contractual duty will invariably amount to an act of dishonesty. An officer who, in making a false entry in a record, acts carelessly, may well commit a breach of duty, although not doing so dishonestly.
Restricting the offence created by s 72 to occasions on which a Commonwealth officer was acting in breach of his duty may have been intended to exclude from its ambit cases in which he was acting in a private capacity, so as to ensure that the necessary nexus with Commonwealth legislative power was maintained." (emphasis added)77 It is plain that there are dicta in both the judgment of Johnston J in Austin v Parsons (supra) and of the Queensland Court of Appeal in R v Cushion (supra) which support the proposition that a contractual obligation may be sufficient to constitute a "duty" for the purposes of s 72 of the Crimes Act. Mindful of the admonition of the High Court in Director of Public Prosecutions (SA) v B (supra) against Chapter III courts purporting to deliver advisory opinions we will say no more about the reasoning of the very experienced judges who, in those cases, expressed the view that the word "duty" in s 72 could encompass a contractual obligation.
78 The trial judge in the case which has led to the submission of the first question of law to this Court did not have the benefit of having his attention drawn to either decision when he tentatively expressed doubts as to whether contractual obligations came within the scope of the word "duty" in s 72 of the Crimes Act. Had those authorities been drawn to his Honour's attention, any doubts which he harboured may have been dispelled.
79 Be that as it may, it seems to us that Mrs Hampel's contention that the first question of law submitted for the determination of this Court did not arise at or in connection with the trial is correct. The Court should accordingly decline to answer that question.
The second question of law
80 Mr Howard contended that the respondents' duties had included the obligations set out in cl 12 of the Licensed Post Office Agreement to:
"(j) Maintain true and accurate accounting records and report to Australia Post in the manner and frequency prescribed in the Licensed Post Office Manual."81 The relevant section of the Licensed Post Office Manual was s 3.1.7. That required the licensees to report using the Cash Balance Summary of Transactions or FAP150 forms. Mr Howard submitted that the evidence presented by the Crown during the course of the trial, taken at its highest for the Crown, permitted a jury to conclude that the respondents were under a duty when completing each such form to bring to account all cash receipts not recorded in the FAP150 form previously provided to Australia Post. The purpose of lodging these forms was to ensure that Australia Post was apprised of the nature and extent of the business transacted since completion and lodgement of the previous Cash Balance Summary of Transactions form. By lodging forms which did not include all cash receipts relating to bulk mail lodgements, he submitted, the respondents had breached the duty imposed upon them by the Licensed Post Office Agreement to maintain true and accurate accounting records, and to report to Australia Post in the manner and frequency prescribed in the Licensed Post Office Manual.
82 Mr Howard submitted that the trial judge had allowed himself to be diverted by an irrelevant consideration - the required frequency of reporting. The point was not how often the respondents were required to report, but rather how they reported when they did so. By omitting entries concerning bulk mail lodged within the period covered by the Cash Balance Summary of Transactions form the respondents rendered those forms inaccurate. The forms were not what they purported to be, namely cash balances, because they omitted material relevant to any such balancing exercise.
83 Mr Howard further submitted that the Crown had adduced evidence in the trial of a pecuniary motive on the part of the respondents to omit from the FAP150 forms the receipt of monies for the bulk mail lodgements. Their business was in financial difficulty. They were using monies which should have been remitted to Australia Post to bolster their cash flows. The omission from the FAP150 forms of the material information which they were required to provide was the gist of the Crown case - and the trial judge had erred in law in holding that there was insufficient evidence to warrant leaving that case to the jury.
84 Mrs Hampel submitted that the trial judge had not erred in the manner contended for by Mr Howard. It had been open to his Honour to conclude that the nature of the contractual relationship between the respondents and Australia Post left uncertain the question whether they were obliged, pursuant to the Licensed Post Office Agreement, and the Licensed Post Office Manual, to include on each occasion that an FAP150 form was filled in all cash receipts not previously recorded in the last such form. She submitted that it had been open to the trial judge to conclude that the evidence showed that they were required to provide a summary of cash receipts on a regular basis, but not each time such a form was filled in and provided to Australia Post.
85 Mrs Hampel submitted that the language in which s 3.1.7 of the manual was expressed was unclear, and that the trial judge had been entitled to conclude that, even taking the Crown case at its highest in this regard, it would not be open to a jury, acting reasonably, to be satisfied beyond reasonable doubt that the respondents had breached the specific duty identified by the Crown, and alleged to have been breached.
86 We are of the view that upon all of the evidence it was properly open to a jury to be satisfied beyond reasonable doubt that the Crown had established both the existence of the duty alleged, and the breach of that duty. The very nature of a Cash Balance Summary of Transactions form suggests that it is intended to provide a record of all cash received and all cash paid since the provision of the last such form. The purpose of lodging such a form was so that Australia Post could be kept aware of the cash holdings of the licensees who performed services for and on its behalf. To include some cash receipts only, and not others, or some payments only, and not others, is to present a misleading and inaccurate record of the cash transactions which had occurred since the last occasion on which a balance was produced.
87 A jury may not, of course, have been satisfied beyond reasonable doubt that the Crown had established these contentions. Moreover, a jury may not have been satisfied beyond reasonable doubt that the respondents had acted "fraudulently" (in the sense of "dishonestly") in all the circumstances. That is not the point. The High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 cited with approval R v Prasad (1979) 23 SASR 161; Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410, and R v R [1990] HCA 51; (1989) 18 NSWLR 74 and made it abundantly clear that a trial judge is not to direct a verdict of acquittal in a criminal trial where there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury and that evidence is capable of supporting a verdict of guilty. To put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
88 In our view, the trial judge in the present case did not take the Crown evidence "at its highest". We would not ourselves have regarded that evidence as being tenuous, or inherently weak, or vague. It was evidence which was reasonably capable of being accepted by a jury. It should have been left to the jury for its consideration. We would therefore answer the second question of law submitted for the determination of the Court, "No".
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 12 February 1999
Counsel for the Appellant:
Mr A J Howard QC with Mr J White Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the First Respondent: Mr R Livingston Solicitor for the First Respondent: Legal Aid Office (ACT) Counsel for the Second Respondent: Mrs F P Hampel QC with Mr G C Corr Solicitor for the Second Respondent:
Central-Southern Aboriginal Corporation for Wiradjuri Aboriginal Legal Service Date of Hearing: 9 November 1998 Date of Judgment: 12 February 1999
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