Hardgrave v R [1906] HCA 47; (1906) 4 CLR 232 (8 August 1906)

(His Honor referred briefly to the evidence and read sec. 64 of the Audit Act 1901, and continued): It does not appear very distinctly whether the prisoner, in receiving the Savings Bank deposits, was acting in the capacity of an officer of the State or of an officer of the Commonwealth, the Commonwealth having undertaken to perform the routine duties with respect to the Savings Bank for the State. But in the view I take of the case, I do not think it is very material. Two objections were taken by counsel for the prisoner to the admissibility of evidence that the prisoner was not only deficient in the Post Office funds, but also in the State Savings Bank money. One objection was that, as the misappropriation of moneys belonging to the State was an entirely different offence, evidence of it could not be received on this particular charge. In answer to that the Crown contended that the evidence was admissible to negative the defence, which might have been set up, of accident or negligence, that is, that the misapplication of the money, which was sufficiently proved, was an accident. The second ground of objection taken by counsel for the prisoner was that the defence of accident or negligence was not admissible in prosecutions under this section, and that therefore any evidence to negative such a defence must be irrelevant. Respecting the contention that it is not necessary to show anything more than the mere fact that there is a deficiency, I do not think that that is supported by the language of the section. The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident. It is also a general rule that a person who does an act under a reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist. I do not think the first rule has ever been excluded by any Statute. I can see no foundation for the suggestion that a man who by accident places a sum of money belonging to the Commonwealth in a wrong drawer, honestly believing that it belongs to himself or to the State, is criminally liable. I think it would be a good defence to show that, although there was a deficiency in the Commonwealth accounts, the money lacking was placed to the credit of another account quite by accident, or with a bonâ fide intention, and I think that evidence bearing upon that point would have been admissible. I will now refer to the authorities on the question whether evidence to negative such a defence is admissible. In delivering the opinion of the Judicial Committee of the Privy Council, in Makin v. Attorney-General for New South Wales[1] Lord Herschell L.C., said:—"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused." In Reg. v. Francis[2], the rule was stated by Lord Coleridge C.J. in substantially the same words:—"It seems clear upon principle," he said, "that when the fact of the prisoner having done the thing charged is proved, and the only remaining question is, whether at the time he did it he had guilty knowledge of the gravity of his act or acted under a mistake, evidence of the class received must be admissible. It tends to show that he was pursuing a course of similar acts, and thereby it raises a presumption that he was not acting under a mistake. It is not conclusive, for a man may be many times under a similar mistake, or may be many times the dupe of another; but it is less likely he should be so often, than once, and every circumstance which shows he was not under a mistake on any one of these occasions strengthens the presumption that he was not on the last, and this is amply borne out by authority."

In the present case the prisoner has collected money for the State and the Commonwealth. It is immaterial whether he is to be regarded as a Commonwealth officer, or a State officer, or both. In either view he received money for different accounts, and obviously his answer to a charge of misappropriating the £28 15s. 5d. might be: "Oh! yes. I paid that by mistake into the State account." It was therefore relevant to inquire whether that was so, and to show by other evidence that there was a deficiency in his State account as well. The evidence was tendered for that purpose, and was in my judgment admissible for the purpose of rebutting this defence which might have been set up.

I am of opinion, therefore, that the evidence was properly admitted, and the conviction should be affirmed.

I agree with my learned brother, the Chief Justice, and do not think it necessary to add anything except in regard to Mr. Sheridan's contention that it is immaterial, in order to constitute an offence under sec. 64, whether there is or is not any fraudulent intent. (His Honor then read sec. 64 and continued): It is not necessary to decide whether or not the Crown was bound to prove fraudulent intent; or whether, as Mr. Bevan has contended, the effect of the section in its present form is merely to throw the onus of disproving fraud on the accused, not to relieve the Crown of the necessity of proving fraud. However that may be, it is clear that the offence charged involves the proof of something actively done by the accused. He must have either misapplied or improperly disposed of or made use of the moneys mentioned. All these acts imply an intention. Before there can be an offence there must be the intention to do something which amounts to a misappropriation or an improper disposal. A good defence to that charge would be that the misapplication was not intentional, that the mind of the accused person did not go with the acts charged. In order to meet that defence it is clear to my mind that, on the principle laid down in Makin v. Attorney-General for New South Wales[3] evidence may be given to show that there were other instances in which a deficiency has occurred in the moneys of the accused, not through mistake, but by misapplication—in other words, by embezzlement.

It is said, however, that on the evidence this transaction as to the £39 is, first of all, too remote; and in the second place, is not connected with the transaction in respect of which the accused is charged sufficiently to enable the jury to draw any inference from it. It appears to me that that criticism is not borne out by the evidence. The greatest period that elapsed between the embezzlement, if there was one, and the discovery of the deficiency in the moneys which is the subject of the present charge was less than three months. I think that under the circumstances it would not be unreasonable for the jury to draw a conclusion from the occurrence of this embezzlement within that period that the deficiency charged in this case was not a mere mistake. Between the two instances I think it is clear that there is a connection. The duty of the accused was to collect certain moneys on behalf of the Commonwealth. Some of these moneys, respecting which he has been charged with misappropriation, clearly belonged to the Commonwealth, and were used and applied in the Commonwealth service. The other moneys, which he collected on behalf of the Commonwealth, were apparently to be paid into the State account, and it was part of his duty to send a statement of those moneys into the Government Savings Bank. But in both cases he collected the money under the service of the Commonwealth. It was public money under the Audit Act 1901. The Crown sought to meet the defence of accident in dealing with one of these sets of public moneys by giving evidence that there was misappropriation of public moneys in the other set both sets being in charge of the accused. It appears to me that the connection between these instances is such that it would be reasonable for the jury to draw the inference that the failure to account for the deficiency in the case of the moneys he is charged with misappropriating was not an accident, but that it was caused in the same way as that which occurred three months before in respect of the other moneys.

I think, therefore, that the evidence was admissible, and that the conviction should be affirmed.

[1] (1894) A.C. 57, at p. 65.

[2] L.R. 2 C.C.R., 128, at p. 131.

[3] (1894) A.C., 57.

High Court of Australia

Hardgrave v R [1906] HCA 47; (1906) 4 CLR 232 (8 August 1906)

HIGH COURT OF AUSTRALIA