FEDERAL COURT OF AUSTRALIA Lawson v Gault [2002] FCAFC 191 CRIMINAL LAW – appeal – Crimes Act 1900 (ACT), ss99, 99A – whether charge of theft of property not exceeding $1000 in value may be prosecuted on indictment. Crimes Act 1900 (ACT) s 99, 99A Magistrates Court Act 1930 (ACT) s 31 Legislation Act 2001 (ACT) s 139 Interpretation Act 1967 (ACT) s 1113 Crimes Act 1900 (NSW) Saraswati v The Queen (1990-1991) 172 CLR 1 distinguished CONSTABLE JOHN GERARD LAWSON v KATHRYN ANN GAULT A 69 OF 2001 SPENDER, MILES & DOWSETT JJ 20 JUNE 2002 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 69 OF 2001 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CONSTABLE JOHN GERARD LAWSON APPELLANT AND: KATHRYN ANN GAULT RESPONDENT JUDGES: SPENDER, MILES & DOWSETT JJ DATE OF ORDER: 20 JUNE 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed; 2. The orders made by Crispin J on 14 November 2001 be set aside; 3. The proceedings be remitted to the Supreme Court of the Australian Capital Territory for determination of the balance of the original appeal to that Court; and 4. Any application for costs of the appeal to be made in writing, with submissions, within 14 days. 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 A 69 OF 2001 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CONSTABLE JOHN GERARD LAWSON APPELLANT AND: KATHRYN ANN GAULT RESPONDENT JUDGES: SPENDER, MILES & DOWSETT JJ DATE: 20 JUNE 2002 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 On 15 November 2000 the appellant, as informant, commenced criminal proceedings against the respondent in the Magistrates Court of the Australian Capital Territory. Five summonses were issued. After subsequent amendments, the summonses alleged the following offences: Ÿ That the respondent, on 10 March 1999, stole cash to the value of $377.50; Ÿ That the respondent, on 25 February 1999, stole cash to the value of $985.00; Ÿ That the respondent, on 10 March 1999, stole cash to the value of $500.00; Ÿ That the respondent, on 18 March 1999, stole cash to the value of $889.00; and Ÿ That the respondent, on 27 April 1999, stole cash to the value of $800.00. 2 In all cases, the cash allegedly belonged to the ANZ Banking Group Ltd. The summonses asserted that the charges were laid pursuant to s 99 of the Crimes Act 1900 (ACT) (the "Crimes Act"), which at that time provided: "A person who steals is guilty of an offence, punishable on conviction, by imprisonment for ten years." 3 Section 99 and other relevant sections have been re-numbered. We will use the numbering in force at the relevant time. In order to understand the issues with which we are presently concerned it is necessary to note the existence of a second offence created by s 99A of the Crimes Act as follows: "A person who steals property the value of which does not exceed $1,000.00 is guilty of an offence punishable on conviction by imprisonment for six months, a fine not exceeding fifty penalty units or both." 4 Prima facie, the facts alleged in the summonses as breaches of s 99 would also have constituted breaches of s 99A. Section 476 provided: "An offence against this Act that is – (a) not punishable by imprisonment; or (b) punishable by imprisonment for a term not exceeding twelve months; is punishable on summary conviction." 5 Clearly enough, a prosecution for a breach of s 99A would be within this provision whilst a prosecution for a breach of s 99 would not. However s 477 provided: (1) This section applies in relation to any offence against a law of the Territory, being – (a) a common law offence; or (b) an offence punishable by imprisonment for a term not exceeding – (i) if the offence relates to money or other property – 14 years; or (ii) in any other case – 10 years. (2) Where – (a) a person (the defendant) is before the Magistrates Court charged with an offence in relation to which this section applies; and (b) the Court is of the opinion that it has no jurisdiction, apart from this section to hear and determine the charge summarily; (c) in the case of a charge relating to money or property other than a motor vehicle – the amount of the money or the value of property does not, in the opinion of the Court, exceed $10,000; the court may proceed in accordance with the succeeding provisions of this section. (3) The court may invite the defendant to plead guilty or not guilty to the charge. (4) Where the defendant pleads guilty to the charge, the court may accept or reject the plea. (5) … (6) Where – (a) the defendant pleads or is to be taken to have pleaded not guilty to a charge; and (b) the court is of the opinion that the case can properly be disposed of summarily; and (c) the defendant has consented to its being so disposed of; the court may hear and determine the charge summarily and may sentence or otherwise deal with the defendant according to law." 6 It seems that as a matter of practice, where a charge was not within s 476 but was within s 477, the magistrate would hear the prosecution evidence and then either commit for trial or, if the relevant conditions were satisfied, proceed summarily pursuant to s 477. Thus an alleged breach of s 99A would be prosecuted summarily pursuant to s 476, but a prosecution for a breach of s 99 would effectively commence as committal proceedings, but might eventually be disposed of summarily pursuant to s 477. 7 Pursuant to s 31 of the Magistrates Court Act 1930 (ACT) (the "Magistrates Court Act") summary prosecution for a breach of s 99A could only be commenced in the Magistrates Court within one year of commission of the offence. All of the alleged offences had been committed more than a year prior to 15 November 2000, and so summary prosecution in the Magistrates Court was barred. There was some debate in the course of argument as to whether it was possible to commence summary proceedings in the Supreme Court, which proceedings would presumably not have been subject to the provisions of the Magistrates Court Act. It probably does not matter for present purposes whether that course was available or not. 8 On 21 May 2001, a magistrate commenced to hear the proceedings commenced by the summonses. At the outset, counsel for the respondent submitted that proceedings should be stayed because "it would be unfairly prejudicial to the accused to proceed under s 99 because the charges themselves are each counts under $1,000.00." It was suggested that proceedings had been brought pursuant to s 99 rather than s 99A merely to circumvent the limitation period. Counsel for the respondent conceded that facts constituting a breach of s 99A could lawfully be charged pursuant to s 99 but submitted that such a course was inappropriate in the present circumstances. This appears to have been a reference to the fact that summary prosecution was statute-barred. The magistrate refused the application and proceeded to hear the prosecution evidence. At the end of the prosecution case the respondent consented to the magistrate's dealing with the matters summarily. The respondent called evidence which appears to have been largely as to character. The magistrate found all counts to be proven, convicted the respondent without passing sentence, ordered her release in her own recognisance and ordered her to pay compensation. The respondent appealed against that decision on numerous grounds. Grounds 1, 2 and 3 were as follows: "1. That her Worship erred in ruling that the charged offences the subject of the appeal were not subject to the limitation period contained in s 31 of the Magistrates Court Act 1930. 2. That her Worship erred in allowing charges which properly should have been brought under s 99A Crimes Act 1900 to proceed as charges pursuant to s 99 of the Crimes Act 1900. 3. That her Worship erred in allowing charges to proceed to hearing which were an abuse of process. Other grounds of appeal concerned the adequacy of the evidence to support the convictions. 9 The appeal was heard by Crispin J. His Honour observed that: "Each count alleged the theft of a sum of money which did not exceed $1,000.00 and Mr Gill, who appeared on behalf of the appellant, argued that whilst the allegations, if proven, might have supported convictions for offences under s 99A of the Crimes Act 1900, they were either incapable of constituting an offence under section 99 of that Act or, alternatively, that any prosecution for an offence under the latter section should have been stayed as an abuse of process." 10 Clearly, the respondent's position before his Honour was somewhat different from that adopted before the magistrate where it had been conceded that the proceedings were validly brought pursuant to s 99 but liable to stay as an abuse of process. His Honour concluded that: "In the present case, however, it seems to me that one should read the provisions of section 99 as subject to the later provisions of section 99A, and that the former should now be taken to apply only to thefts of property the value of which exceeds $1,000.00. In my opinion such an intention must be implied because the legislature should not be taken to have intended to have clothed police informants with the extraordinary powers to which I have referred, or to have intended permitting the general provision contained in section 99 to be used a means of circumventing the very purposes for which section 99A was enacted." 11 As a result of this view, his Honour concluded that "the charges against the appellant were not maintainable and that the convictions against her must be set aside". His Honour did not consider any of the other grounds of appeal. The appellant (the original informant) now appeals against the decision of Crispin J, asserting that his Honour erred in law. 12 It seems that prior to amendments made in 1995, s 99 had regulated all charges of theft. Section 99A was then introduced. The Explanatory Memorandum stated in connection with cl 4 of the relevant bill: "This clause inserts section 99A which creates a new summary offence of minor theft where the value of the property does not exceed $1,000.00. The indictable offence is at section 99 and carries a penalty of imprisonment for ten years." 13 In introducing the bill, the Attorney-General said: "Mr Speaker, the purpose of this Bill is to amend the Crimes Act 1900 so that there is a summary form of three existing indictable offences – the existing offences of theft, making off without payment, and destroying or damaging property. For the assistance of members, I will explain the difference between summary and indictable offences. Section 33D of the Interpretation Act 1967 defines an indictable offence as being 'an offence under any Act that is punishable by imprisonment for a period exceeding one year'. Section 476 of the Crimes Act defines a summary offence against that Act as an offence that is (a) not punishable by imprisonment or (b) punishable by imprisonment for a term not exceeding twelve months. The three summary offences have been proposed because they will deal more effectively with cases at the lower end of the scale of the indictable offences – offences such as shop-lifting and vandalism. They would deal with situations where the value of the property does not exceed $1,000.00. The majority of cases which fall within the three existing offences involve property with a value of less than $1,000.00. It would better reflect the reality of the situation if these relatively minor offences were dealt with as summary offences. At present, however, with only the three indictable offences available, even offences of this relatively minor nature must be prosecuted, at least in the first instance, as indictable offences, with penalties of imprisonment for ten years for theft, under section 99; for two years for making off without payment, under section 107(1); and for ten, fifteen or twenty years for destroying or damaging property, under section 128. Further, although the offence may involve an item of low monetary value, it is necessary under section 477 of the Crimes Act to ask the defendant whether he or she will consent to the matter being heard in the Magistrates Court rather than the Supreme Court. It is not uncommon for the question to create confusion and apprehension in the defendant, particularly if the person is unrepresented. The situation is even more unrealistic in that, if the defendant chooses, he or she can put the Territory to the expense of a jury trial. I understand, Mr Speaker, that in the last decade or so that has happened on at least one occasion for a very minor offence of, I think, the stealing of a bar of chocolate. The ACT Criminal Law Consultative Committee, comprising representatives of bodies involved in the ACT criminal justice system, has suggested that there should be a summary form of these offences, the penalties for which should include a fine and a shorter prison term, or both. This Bill will implement those recommendations with a penalty of imprisonment for six months or a fine not exceeding fifty penalty units, which is $5,000.00 for all the offences. I commend the Bill to the Assembly." 14 An Opposition representative said: "The concern that was raised by (the Criminal Law Consultative Committee) was that there are situations now where comparatively minor matters have to be dealt with as serious indictable offences. (The Attorney-General) exampled them in his speech. They relate to theft of an amount of property less than $1,000.00 and vandalism of material less than $1,000.00. … It is far more sensible for minor property damage to be a summary offence, with a smaller penalty unit. This is a sensible amendment which produces some greater flexibility for the prosecution to charge people with less serious offences. That can be very important. … Creating a lesser offence is of benefit to the person charged, as well as to the system. We will be supporting this Bill." 15 The Attorney-General replied saying: "I thank members for their support. This will be a sensible way of reducing the cost of our system and potentially preventing people from being tried before juries for minor offences. I welcome the passage of this Bill." 16 It is curious that much emphasis in the course of argument was placed upon the reference to "flexibility" in the Opposition member's speech. It is not entirely clear that the Attorney adopted that reference. This highlights the difficulty inherent in seeking to ascertain legislative intention by reference to parliamentary debates. The statutory justification for using such extrinsic material in the construction of statutes is presently s 139 of the Legislation Act 2001 (ACT). That provision was previously found in s 11B of the Interpretation Act 1967 (ACT). Pursuant to both provisions reference may be made to any explanatory memorandum which was laid before, or furnished to members of the Legislative Assembly and the presentation speech made by the member introducing the Bill. Reference may also be made to "relevant material" in the minutes of meetings of the Assembly or in other official records of debates. 17 The Attorney-General described the legislation as creating "a summary form of three existing indictable offences". This suggests that the measure was "procedural", designed to facilitate the summary disposition of an existing charge rather than to create a new offence, intrinsically different from that constituted by s 99. The reference by the Opposition member to "flexibility" might imply that the new provision would not necessarily apply in every case, but such use of opposition statements is fraught with difficulty. The Attorney-General also referred to "reducing the cost of our system and potentially preserving people from being tried before juries for minor offences". The word "potentially" might suggest something other than an expectation that minor offences would always be tried summarily. 18 A somewhat similar problem was considered by the High Court in Saraswati v The Queen (1990-1991) 172 CLR 1. In that case the applicant was convicted upon three counts of committing an act of indecency with a person under the age of sixteen years. That offence had been created in 1974 by amendment to the Crimes Act 1900 (NSW). However the conduct relied upon in two of the three counts would also have constituted indecent assault pursuant to another provision of that Act. The circumstances involved in the third count would have constituted unlawful carnal knowledge pursuant to a third provision. Prosecution for indecent assault or unlawful carnal knowledge was statute-barred. The issue was whether the Crown could charge, as acts of indecency, conduct which would also have constituted one or other of those statute-barred offences. Three distinct lines of reasoning emerge from the reasons of the Court. Dawson J, with whom Deane J concurred, said at 14-15: "The applicant placed great reliance upon the fact that the offence of committing an act of indecency was created to cover the gap left by the fact that the offence of indecent assault requires not only indecency but also something in the nature of an assault. However sexual offences are of their very nature progressive rather than mutually exclusive so that the more serious offence includes the elements of the less serious offence. For the legislature to have sought to exclude from an act of indecency offences which otherwise would have included the act of indecency would have been to depart from the approach hitherto adopted by the law. Moreover whilst the object of the legislature in creating the offence of committing an act of indecency appears to have been to close a gap which it perceived in the law, it does not follow that it chose to close that gap in a way which would give rise to incongruous results. If the applicant's argument is correct a person charged only with committing an act of indecency would be able to defeat that charge by proving by way of defence that he had in fact committed an indecent assault or unlawful carnal knowledge. If the defence were successful, he could not, upon the principles which I have endeavoured to explain, be subsequently convicted of either of the more serious offences whether or not the time for the commencement of prosecution had expired. But more than that, even if the jury were satisfied beyond reasonable doubt that an act of indecency (in the ordinary sense and not the confined sense contended for as a matter of construction) had been committed, if they entertained a doubt whether the accused was guilty of indecent assault or unlawful carnal knowledge – that is, if they considered that he might have committed those offences – it may be they must acquit upon the charge of committing an act of indecency (in the confined sense) because they would necessarily entertain a doubt whether what he had done amounted only to the commission of the latter offence … ." 19 McHugh J, with whom Toohey J agreed, said at 27 (after an examination of the circumstances leading to the creation of the offence of indecent dealing: "Clearly, Parliament saw 'the ordinary meaning' of the predecessor of s 61E(2) as covering cases falling outside the scope of indecent assault and, it must follow, cases falling outside the scope of the offence of carnal knowledge. Once this is accepted it follows that s 61(E)(2) must be given a similar construction to its predecessor, s 76A, since, apart from extending the operation of this section to persons of either sex, the terms of s 61(E)(2) are almost identical to those of s 76A. Despite the literal meaning of the words 'act of indecency', the context of s 61(E)(2) and the history and purpose of the legislation show that in s 61(E)(2) 'the ordinary meaning' of the words 'act of indecency' does not include conduct which constitutes an indecent assault. The purposes of s 61(E)(1) or an act of carnal knowledge for the purposes of s 71." 20 Gaudron J reached a conclusion similar to that reached by McHugh and Toohey JJ, although without substantial reference to the history of the amendments. Her Honour rather relied upon canons of construction concerning the effects of amending legislation. 21 In the present case the object of the amendment was to provide a mechanism for summary prosecution of minor thefts. In Saraswati, McHugh and Toohey JJ were able to rely upon the circumstances in which the amendment was adopted as demonstrating the intended meaning of the expression "act of indecency" in the amendment. However the purpose underlying the adoption of s 99A does not assist in the same way. There is, in any event, no aspect of the section which calls for interpretation. The question is whether the amendment was intended to vary the meaning of s 99 so as to exclude from its operation, theft of property, the value of which did not exceed $1,000. It is difficult to see why such an intention should be inferred. No great inconvenience would flow from the fact that the same conduct might, in certain circumstances, be prosecuted summarily or on indictment at the election of the prosecuting authority. In s 477 the value of the relevant property was already used as a criterion for summary prosecution before a magistrate, with consequential reductions in maximum penalties. However the defendant's consent was necessary. The primary purpose of the amendment appears to have been to avoid jury trial where the amount of property in question was small. 22 It seems to us that the approach taken by Toohey and McHugh JJ in Saraswati does not assist for present purposes. However the practical difficulties referred to by Dawson J would arise if conduct caught by s 99 did not include conduct which fell within s 99A. It would not be impossible to overcome these difficulties, but we do not think it likely that the Assembly intended to create them. The amendment simply inserted s 99A to follow s 99. If the intention was to exclude minor thefts from the ambit of operation of s 99, then it is virtually certain that the legislature would have said so expressly. 23 For those reasons we consider that conduct caught by s 99A may also be charged pursuant to s 99. As we have said, we see no great practical difficulty in that outcome, although it is true that a decision by the prosecuting authority to follow one course rather than the other might potentially have significant consequences for the accused person. To the extent that a decision to prosecute on indictment might expose him or her to more substantial penalties, the discretion of the sentencing Judge would be a sufficient safeguard against abuse. On the other hand, a decision to proceed summarily might relieve the accused person of exposure to substantially higher penalties. This would be particularly so where he or she had a substantial criminal history or had been charged with numerous similar offences, each involving property having a value below the limit prescribed by s 99A. Such a discretion might invite corruption or inappropriate plea-bargaining. However the power to make decisions as to prosecutions inevitably involves such risks. Judges have traditionally drawn attention to any apparent irregularity in the exercise of that power, providing an effective safeguard against abuse. 24 We would allow the appeal and set aside the orders made by Crispin J on 14 November 2001. The proceedings should be remitted to the Supreme Court of the Australian Capital Territory in order that the balance of the original appeal to that Court may be determined. The parties may apply in writing for orders as to costs. Any such application should be made within fourteen days of the publication of these reasons and should be accompanied by appropriate submissions. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court. Associate: Dated: 20 June 2002 Counsel for the Appellant: Mr R Refshauge SC Solicitor for the Appellant: Director of Public Prosecutions Counsel for the Respondent: Mr S Gill Solicitor for the Respondent: pappas, j Date of Hearing: 16 May 2002 Date of Judgment: 20 June 2002