Peters v The Queen M87/1996 [1997] HCATrans 77 (14 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M87 of 1996

B e t w e e n -

PHILIP PETERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 1997, AT 10.46 AM

Copyright in the High Court of Australia

MR P.G. PRIEST: If the Court pleases, I appear for the applicant. (instructed by Jonathan Kemp & Associates)

MR N.T. ROBINSON: If the Court pleases, I appear on behalf of the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

DAWSON J: Mr Priest.

MR PRIEST: Your Honours, the argument of the applicant is fully set out in the summary. Unless there was some matter or matters that the Court wished to agitate with me, I am content to rely upon what is written, if the Court pleases.

KIRBY J: You say there is a short but interesting point of criminal law which crosses borders and which this Court should sort out?

MR PRIEST: Yes, your Honour.

KIRBY J: That is about all you can say. The interesting bit - - -

MR PRIEST: I can give any number of illustrations, your Honour, but they would be otiose in the circumstances.

DAWSON J: Why is not the decision of the court below simply correct?

MR PRIEST: Your Honour, in my submission, there are two reasons why it is not correct. The first is that it relies upon Ghosh's Case which, in my submission, does not state the law appropriately for this country for this reason, that it seems to have been an invention of the English Court of Appeal which had no basis that one can discern in principle.

GUMMOW J: What was the form of words in the statute they were construing?

MR PRIEST: The form of words, your Honour, are very close to the form of words that were construed by the Court of Criminal Appeal of Victoria in Salvo.

DAWSON J: You are being asked what were they.

GUMMOW J: What were they. Everyone says they are very close. .....it is apparent to me they are identical. There always seems this forensic temptation not to construe the statute in hand but to construe what some court said about some other statute.

MR PRIEST: Yes, your Honour.

GUMMOW J: Seduction that rules successful, it seems.

MR PRIEST: The critical words of the statute in Ghosh were "dishonestly obtains" and it is the adverb "dishonestly" which was the subject of most of the discussion in Ghosh.

KIRBY J: And here the word is "defraud", is it not? What is the word in the Victorian statute?

GUMMOW J: Commonwealth statute.

MR PRIEST: The offence here is "conspiracy to defraud", your Honour.

KIRBY J: The words are not exactly the same then?

MR PRIEST: No, they are not.

KIRBY J: But you are here clutching the golden thread that runs through our criminal law. You say without the subjective deliberate intent then the tradition is that that is no offence and that is how the statute should be construed unless it is very clear that it should not?

MR PRIEST: Yes, your Honour. In the past courts of authority have said - and I paraphrase - that "fraudulently" which is used in a number of statutes, and "dishonestly" ought to be used and can be understood as being interchangeable so that it seems that the same meaning has been attached to both of those adverbs.

GUMMOW J: In Lawrence's Case it was said that "fraud" in 71(1) of the Commonwealth Crimes Act 1980 was equated to dishonesty.

MR PRIEST: Your Honour Justice Gummow having referred to Lawrence, it is curious that Justice of Appeal Callaway in that case rather thought that one could not use the decisions of the Court of Criminal Appeal in Salvo, Brow and Bonollo in construing the Commonwealth legislation. Yet, at the same time thought that, apparently, one could use a decision of the English Court of Appeal in Ghosh in construing the same legislation.

DAWSON J: What does Salvo say?

MR PRIEST: Salvo, your Honour, says that "dishonestly" as used in the Victorian equivalence of the Theft Act is used in a special sense "without a belief in a legal claim of right."

DAWSON J: It is an entirely subjective test, is it?

MR PRIEST: Yes, your Honour, it is made clear by all members of the court that it is a purely subjective test. Salvo itself raises the question of whether or not - the very strong dissenting judgment of Mr Justice McInerney as to whether or not "dishonestly" needs to be defined at all for a jury. That is a question too which, in my respectful submission, ought exercise the mind of this Court.

Now, your Honours, it was at one time thought that Salvo, Brow and Bonollo were a uniquely Victorian problem, if I can put it that way; however, the Court of Criminal Appeal in New South Wales in recent times, in two cases, both Love and Condon, has sought to apply Salvo to offences tried within that State.

KIRBY J: So, is the position that New South Wales there is a purely subjective test? In Victoria there is the subjective plus ordinary "reasonable honest people" test? Is that the position?

MR PRIEST: I have not made myself clear obviously, your Honour, and I apologise. If a person is tried in Victoria for State equivalents of the English Theft Act, then the test for dishonesty is purely subjective and it equates to "without a belief in a legal claim of right". If a person is tried within Victoria for Commonwealth offences such as conspiracy to defraud the Commonwealth or, indeed, for the common law offence of conspiracy to defraud or, indeed, for any other offence which involves an element of fraud or dishonesty outside of those Theft Act provisions, then the test that is applied is the Ghosh test which the court below understood had both subjective and objective components.

The absurdity of that, your Honours, is manifest in a situation where there is an indictment which contains both State and Commonwealth offences. A jury is confronted necessarily with a direction - - -

KIRBY J: That may be absurd but as Justice Gummow pointed out, that may just arise from the different language of the statute.

MR PRIEST: Yes. The difficulty arises because "fraudulently" and "dishonestly" have been said to be able to be used interchangeably. In my submission, there is no justification for construing the word "fraudulently" in the way it has been construed in courts interstate and, indeed, in this State according to the Ghosh test. In Lawrence's Case - - -

KIRBY J: But as one of the judges below said, that "would make Robin Hood no robber" because he did not have a dishonest intent. He had the very best of motives. Perhaps your client says that, although I doubt it.

MR PRIEST: Yes. Your Honour, if a person living in Wodonga decided to set up a false identity in order to get social security; he goes to the Wodonga office of social security; he gets a pension; he then uses his social security card in order to get various State benefits which are open to him so that he gets cheap public transport based on that; he gets into the pictures cheaper and so on. He is charged with Commonwealth offences of defrauding the Commonwealth and State offences of obtaining property by deception. He is tried on the one indictment presentment. Two different standards of dishonesty are necessarily left to the jury. If he crosses the border, crosses the Murray to Albury, and he is caught doing the same thing at the Albury office of social security, within the State of the New South Wales he is going to be tried according to a test which revolves around Salvo for the same Commonwealth offences.

In Condon's Case the Salvo test which was always thought to be uniquely Victorian was, indeed, applied to Commonwealth offences. So, there is a clear divergence of authority as between States as to what the appropriate - - -

GUMMOW J: This was 86(1)(e), was it not? That was the section of the Crimes Act?

MR PRIEST: It was both 86(1)(e) and 86A, your Honour.

GUMMOW J: There is a complicated legislative history, is there not?

MR PRIEST: Yes.

GUMMOW J: Are not both sections now repealed?

MR PRIEST: Both sections are now repealed but - - -

GUMMOW J: What is their present equivalent?

MR PRIEST: Your Honour, there are a number of offences within the - - -

GUMMOW J: I am just anxious to make certain that this is still a live point under the Crimes Act as it now stands.

MR PRIEST: Yes, in the Crimes Act, your Honour, there is a general provision, section 86, which talks about - - -

KIRBY J: It says:

A person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment..... is guilty of the offence of conspiracy - - -

MR PRIEST: Yes. That would pick up, your Honours, for example, section 29D of the Crimes Act.

GUMMOW J: Does that contain the crucial form of words in the old 86(1)(e)?

MR PRIEST: Section 29D, your Honour, uses the expression: "person who defrauds the Commonwealth", so the word used is "defrauds".

GUMMOW J: So, you say if one connects the current 86 with 29D you get to the same result?

MR PRIEST: Yes. So, the offence for which my client was tried is still live, as it were. It is curious, your Honours, that there are a number of different standards or tests for dishonesty throughout Australia. In the Australian Capital Territory, Justice Kelly in Mattingley's Case thought that - - -

DAWSON J: I do not think we need trouble you any further, Mr Priest. Mr Robinson.

MR ROBINSON: If it please the Court. It is submitted, your Honours, that the point does not give rise to special leave. The indictment, of course, alleged in this case, "Conspiracy to defraud". The matters that my friend has gone to in relation to Salvo, of course, were all in relation to a construction of the word as peculiarly defined for the purpose of the Crimes Act in Victoria. The conflict that my friend points to in relation to, in particular, Love and Condon and perhaps also the South Australian case of Kastratovic that he sets out, in my submission, are all instances of a claim of right and the purported exercise of that claim of right by way of a deception. Indeed, it is in respect to that point that Condon in New South Wales referred to and appears to have adopted the test in Salvo, the issue being, as it was litigated in Salvo and referred to in Love and Condon and - - -

DAWSON J: But claims of right really only agitate the broader question, do they not, as to whether the test is entirely subjective or not?

MR ROBINSON: Yes, in the sense though, your Honour, that the description of what the content of the test of dishonesty is in Salvo as followed in Brow and Bonollo is, as a matter of law, that the trial judge is to direct the jury that it is a subjective state of mind of absence of belief of legal entitlement, though expressed in perhaps different ways depending on the facts in the instant case. Whereas, in Ghosh, which is adopted in relation to the - - -

DAWSON J: This case does not overrule Salvo, does it?

MR ROBINSON: I am sorry, your Honour, which case?

DAWSON J: Salvo has not been overruled?

MR ROBINSON: No, it is not, your Honour, and indeed, did not - - -

DAWSON J: So, that creates an additional problem in Victoria, of course.

MR ROBINSON: It does, your Honour, if there is an overlap between the tests but, of course, the Victorian courts have gone out of their way in Walsh and Harney and in Smart and in Edwards to indicate that the meaning attributed to "dishonesty" under the Crimes Act theft provisions is not a general meaning but is a special meaning. So, in relation to the meaning - - -

DAWSON J: That was something that I always found hard to grasp, I must say.

MR ROBINSON: Of course, that special meaning has not been extended and expressed as not extended to conspiracy to defraud or "dishonesty" where otherwise appearing and it was in respect, of course, to the meaning of "defraud" and "dishonesty" that the test in Ghosh was adopted and until the matter of Condon there was no case in Australia, it would appear, that applied the Salvo test outside the limited provisions of the Theft Act. Condon, with respect to their Honours, appears to have been decided without any reference to Ghosh or any of the Australian cases which adopt Ghosh in respect to the meaning of "dishonesty" and it would appear that the reason the case was argued in that fashion in Condon was because of the claim of right and the issue of how the subjective state of mind of entitlement to the property could be dealt with by the jury when faced with an obvious deception to obtain such property.

KIRBY J: All of this would be swept aside if the applicant's submission were accepted by the Court that the golden thread runs through all of these statutes and all the jury looks at is the subjective intent of the accused. That would have at least the benefit of, (a) consistency with our criminal history and the history of the criminal law, and (b) greater simplicity to juries; both of which are desirable objectives if they are compatible with the statutes. Who are "the ordinary reasonable and honest people"? Namely, the jurors.

MR ROBINSON: Yes, your Honour, though the way the test is expressed is that they are to apply the standards. No doubt there is small difference between them applying their standards and the standards of the ordinary reasonable honest community.

KIRBY J: Just in case they are not reaching those standards themselves.

MR ROBINSON: Well, Ghosh, of course, your Honour, was, as it makes no secret of in the reasoning, designed to overcome those who may hold - - -

KIRBY J: Eccentric views - - -

MR ROBINSON: - - - a strong or a zealous view that their view of the world should apply. His Honour the Chief Justice Lane's description of the well-meaning anti-vivisectionists, Robin Hood and the like and, in my submission, the test as applied in Ghosh does not - - -

KIRBY J: Can that not just be left to juries to apply their common sense and that would be consistent with the history of the criminal law?

MR ROBINSON: Save, though, your Honour, that it is apparent from the dispute that followed Feely what part the "Robin Hood" state of mind might play in the subjective question of the state of mind of the accused and that would appear to have been the reason why the Court of Appeal in Ghosh decided that the standard should be fixed by the objective sense and that the state of mind that is required is a recognition by the accused that he or she is breaching that standard. In my submission, there is nothing in the Ghosh test which offends the golden principle that it is the state of mind or the mens rea that tells whether or not there has been the commission of the offence.

KIRBY J: There just happens to be this little bit of judicial gloss that in this particular tiny little corner of the criminal law they have to be given special instructions which are confusing, as has been pointed out: (a) we have conflict between different States and, (b) we can have the potential of conflict between a count based upon a federal statute and a count based upon a Victorian statute.

MR ROBINSON: With respect, the conflict, of course, your Honour, that arises because of the construction of statute and difference - - -

KIRBY J: Maybe that will require a little more attention to the detail of the statute than we have been able to give today.

MR ROBINSON: Yes, your Honour.

KIRBY J: I should say, than we have been assisted to give today.

MR ROBINSON: Though, of course, the question of the construction of Salvo was no part of this trial.

DAWSON J: When was Salvo decided, Mr Robinson?

MR ROBINSON: . It is first reported in 1980 Victorian Reports, your Honour, and Brow and Bonollo followed in 1981.

DAWSON J: Yes, I remember it well.

MR ROBINSON: It was in December 1979 that it was actually handed down, your Honour. I do not know, your Honours, that I can advance it much more than that as to why there is no special leave point.

DAWSON J: Thank you, Mr Robinson. The Court need not trouble you in reply, Mr Priest.

There will be a grant of special leave in this case. Now, your client is on bail, as I understand it.

MR PRIEST: Yes, your Honour. Your Honour's order admitting my client to bail is in the application book at page 138. I would be seeking an extension of that grant of bail.

DAWSON J: Yes, bail will be extended on the same terms and conditions as it was granted by me previously save that condition 7 will now read:

That on the date to be fixed by notice to him in writing by the Deputy Registrar of this Court as the date on which the appeal will be determined he surrender himself to the Sheriff of the Supreme Court upon the determination of the said appeal to serve any balance of his sentence then remaining unserved in accordance with a warrant of commitment pursuant to which he is confined at that time.

MR PRIEST: If the Court pleases.

AT 11.10 AM THE MATTER WAS CONCLUDED