74 ) a 4 . VATCHWORDS Public Service — Power of suspension and dismissal of officer. Exercise of power of suspension of officer without salary - Whether duty to observe the principles of natural justice - audi _ alvoram partem rule Public Service Board - Exercise of power of dismissal ot officer pleading guilty to criminal offence - Magistrate not proceeding to conviction — conditional discharge of officer upon recognizance —- Whether officer found "guilty" of the offence - Meaning of "convicted" = Application of rules of natural justice by Public Service Board - Right of officer to appear before Public Service Board to make oral submissions - aud2z altcram partem rule s.S. 55-62 Public Service Act 1922 IN THE SUPREME COURT OF THR AUSTRALIAN CAPITAL TERRITORY e No. SC 235 of 1979 No. SC 953 of 1979 eee 'THE QUEEN against ROBERT WILLTAM COLE, JOHN CASEY TAYLOR, ROBERT JOMN YOUNG, ANTUONY EDWIN COLES, ARTHUR ROBIRT PALMER, and THE COMMONWEALTH OF AUSTRALIA Ex parte LEONARD ALBERT DIXON ORDER JUDGE MAKING ORDER: LOCKHART J. WHERE MADE: SYDNEY DATE OF ORDER: 13 AUGUST 1979 THE COURT ORDERS THAT: 1. The rule should be made absolute as to the decision of the Board that the prosecutor shall not receive salary during the period of his first suspension (a.e. from 1h March 1978 until 19 May 1978). Otherwise the rules nisi should be discharged. I declare that the prosecutor is entitled to be paid salary from 14 March 1978 until 19 May 1978 as an officer of the public service being an Overseer (Printing) Grade 2, Government Prantang Office, Canberra. Otherwise I dismiss the originating summons dated 1 June 1979. The prosecutor to pay one half of the costs of the respondents of all the proccedings. Ng y & PME . T Dy . IN THE SUPREME COURT OF THE } No. SC 235 of 1979 ) AUSTRALIAN CAPITAL TERRTTORY No. SC 953 of 1979 THE QUEEN against ROBERT WILLTAM COLE, JOHN CASEY TAYLOR, ROBERT JOHN YOUNG, ANSHONY EDWIN COLES, ARTHUR ROBERT PALMER, and THE COMMONWEALTH OF AUSTRALIA Ex Parte LEONARD ALBERT DIXON REASONS FOR JUDGMENT "3 Mossi LOCKHART J. On 23 February 1979 the Supreme Court of the Australian Capital Territory (Connor J.) made an order nisi for certiorari to quash a decision of the Commonwealth of Australia ("the Commonwealth") to dismiss Leonard Albert Dixon ("the prosecutor") from the Public Service of the Commonwealth The order was returnable on 9 March 1979 and then adjourned until it came before me on 3 and 4 May 1979. On 4 May, after hearing argument from counsel, and upon the application of the prosecutor, I made an order nisi ; for certiorari returnable instanter to Robert William Cole, John Casey Taylor and Robert John Young, each being a 4 Commissioner of the Public Service Board ("the Board") to | quash the decision of the Commissioners to dismiss the pro- secutor from the Public Service of the Commonwealih, The proceedings were adjourned to 28 June 1979. In the meantime TTA ieee the prosecutor took out an originating summons returnable before me on 28 June 1979 joining the Commonwealth, each of the said three Commissioners and Arthur Robert Palmer as respondents. Mr. Palmer is the permanent head of the Department of Administrative Services and a Chief Officer as defined in s. 7 (1) of the Public Servace Act 1922. I shall refer to him as "the Chief Officer." On 28 June 1979 I resumed the hearing of the applications to make absolute the orders nasi. On the same day, upon yet another application of the prosecutor, I made a further order nisi for certiorari, returnable instanter, to the Chief Officer to quash his decisions to suspend the prosecutor from duty notified to the prosecutor on 15 March 1978 and to suspend the prosecutor from duty without pay notified to the prosecutor on 9 June, 1978. Mr. Higgins appeared for the prosecutor. Mr. Murphy Q.C. and Mr. Purnell appeared for all respondents. By consent of each party all matters were heard together. The prosccutor had been employed for about 20 years by the Government Printing Office as an overseer. He was a permanent officer in the Australian Public Service, Fourth Division. On 10 March 1978 the prosecutor was interviewed by Commonwealth Police in relation to the alleged appropriation by him of certain materials belonging to the Commonwealth. On 14 March 1978 the prosecutor attended with other people at the office of the Government Printer, 'ir. 20/3 John Thompson. The prosecutor admitted having committed the acts complained of and set out in the amended charges before the Canberra Court of Petty Sessions to which TI shall refer later. He requested that his employment be continued and that he not be dismissed. He was informed by Mr. Thompson that he would be recommending immediate suspension, and dismissal, 1f found guilty as, in his opinion, the prosecutor had betrayed the trust placed in him. On 15 March 1978 the prosecutor was served with a document in the following terms:- "PUBLIC SERVICE ACT 1922 SUSPENSION OF OFFICER UNDER SECTION 55 PRIOR TO THE LAYING OF CHARGE WHEREAS there is reason to believe that Leonard Albert D1XON Oversecr (Printing) Grade 2, Outside Printeries, Government Printing Office, Canberra being an officer of the Fourth Division has committed an offence under Section 55 of the Public Service Act 1922, I hereby suspend the said officer prior to the laying of a charge against the said officer for such offence DATED this 14th day of March 1978 (sgd.) A. R. Palmer Chief Officer" At the same time the prosecutor was served with another document, also dated 14 March 1978, in these terms:- "PUBLIC SERVICE ACT 1922 oe fH Ban cured UL wee ee Te en ee ans NOTTCE OF SUSPENSION UNDER SECTION 55 PRIOR _TO LAYING OF CHARGD TO Leonard Albert DIXON Overseer (Printing) Grade 2, Outside Prianteries, Government Printing Office, Canberra TAKE NOTICE that there is reason to believe that you have committed an offence under Section 55 of the Public Service Act 1922, and that you have bcen suspended prior to the laying of a charge against you for such offence : AND TAKE FURTHER NOTICE that, subject to the approval of the Public Service Board, payment to you of salary wiil cease during the period for which you are under suspension. DATED this 14th day of March 1978 (sgd.) A. R. Palmer Chief Officer " At the time of serving the prosecutor with those documents, Arnold Keith Walklate, told him that a recommendation for suspension from duty without pay had been forwarded to the Public Service Doard("the Board") for consideration, that, on the assumption that the Public Service Board would accept the recommendation for suspension from duty without pay, he would be entitled to engage in outside employment during the period of suspension. On 11 April 1978 the prosecutor received a document dated 29 March 1978 on the letterhead of the Australian Government Publishing Service in these terms:- "NOTICE OF SUSPENSJON UNDER SI.CTION 55 PRIOR TO LAYING OF CHARGE With regard to the abovementioned notice of suspension, the Public Service Board has now ordered under Section 60 (4) of the Public oe e/5 the Board the perio -5- Service Act, that you shall not receive salary during the pertod of such suspension. You are also advised that the Board grants you permission to engage in outside employment, should you so desire, during the period of suspension. sed.) A.K,WALKLATE } for Director Management Services" The prosecutor was not notified when or where would meet to "approve" cessation of his salary during d of his suspension, nor was he given any opportunity to be heard on the question whelher his suspension should be with or without payment of salary. appear at On 28 April 1978 the prosecutor was summonsed to the Court of Petty Sessions at Canberra in the Australian Capital Territory on 1 May 1978 to answer charges that he:- (a) Between 10th day of September, 1977 and the Oth day of March, 1978 at Canberra dad steal eight "Itck" printing plates, five OFI printing plates, ten litres of elecitro-static solution, 10.5 kems of printing ink, two "3MMGD" printing plates and 1000 sheets of A4 pranting paper value $153.34 belonging to the Commonwealth. Contrary to Section 71 (1) Crames Act 1914 (Charge 8982/78). (b) On the 1st day of March, 1978 at Canberra did fraudulently misappropriate property, to wit, 6000 sheets of A4 gold bond printing paper, one pranting plate and a quantity of ink. Value $95.00, belonging to the Commonwealth. Contrary to Section 71 (1) Crimes Act 1914 (8983/78). 22/6 follows: (c) On or about the 9th day of March 1978 at Canberra did fraudulently misappropriate property, to wit, 10,000 sheets of blue A4 bond printing paper, two printing plates and a quantity of ank, value §176.50, belonging to the Commonwealth. Contrary to Section 71 (1) Crimes Act 1914 (Charge 8984/78). (ad) On or about the 6th day of March, 1978 at Canberra did fraudulently misappropriate property, to wit, 2,500 sheets of A4 bond praniing paper, 2,500 sheets of A4 bank printing paper, three printing plates and a quantity of ink, value $66.02 belonging 1o the Commonwealth. Contrary to Section 71 (1) Craomes Act 1914 (Charge 8985/78). On 31 May 1978 the charges were amended as (a) Charge number 8982 by deleting "Electrostatic solution" and inserting "blanket solvent" and by changing the value of the property to $162.50. (bo) Charge number 8983 by changing the vahe of the property to $56.02. (c) Charge number 8984 by changing the value of the property io $67.43. 0/7 (ad) Charge number 8985 by changing the value of the property to $28.43. on 31 May 1978 the prosecutor pleaded guilty to ; the charges as amended before Mr. Dainer S.M. whose remarks on sentence included the following:- "The facts of the matter are serious in the sense that the defendant was in fact a trusted employee of the Commonwealth and to some extent I suppose breached thal trust by using Commonwealth material —- that is the starting premise, and thai is on the debit side of the ledger so far as he is concerned. On the credit side is the fact that he as a man of undoubted good character, in fact there are what I might term glowing Lestimonials to has good character and his andustry and his application to community activities, through the Lions Club in particular. Those testimonials are in the file and they certainly reflect other citizens' views of the defendant's character and that character is of the highest order. Also on the evidence of Sgt Fox he co-operated quite extensively with the police and Set Fox said if that had not occurred thear task would have been considerably more difficult and perhaps the full extent of the defendant's activities would not have come to light so readily. So that is on the credil side of the ledger. So far as penalty 1s concerned, it seems the defendant has already been penalised to some financial extent. He was suspended without pay on 14 March and has been in that status ever since, that 1s a period of some 10 weekswhich represents a salary loss of over $1000. True it 1s that he has been able according to his counsel, Mr. Higgins, to get some sporadic part-time work, but I would imagine that that would not bring him anywhere near the level of salary which he was then enjoving. So he has already been fanancially penalised. Jn additson to that it would seem to me that 1f I have assessed his character correctly cn the evidence before me he has been penalised in a mentai way, a psychological way, by having this suspension inflicted on him and having these charges brought and being in court on these eharges. All those things in my view represent a penalty to anyone who thinks about his life generally. If I impose a penalty which involves imprisonment, which 1s open to me, 31 would seem that without question he will be dismissed and that will result in a very substantial further monetary penalty. i1f T ampose a fine 3t would seem, on my experience of matters of this nature where a Commonwealth employee aoe /8 is charged with offences against the Commonwealth, it is extremely likely that he will be dismissed. Whilst the fine available to me is a fine of $200 on each charge, that amount would pale, I think, into insignificance compared to the monetary loss which the defendant would suffer by losing benefits which otherwise would accrue to him, In addation to that at would seem to me to be vory difficult for him to obtain a similar job, having been dismissed from a Commonwealth post of employment. So that would represent a consequential penalty which J think I must introduce into my problem now; I must Lake that into account. Jf I impose a fine of whatever size 1t would seem that that would be the natural consequence, that the defendant would be dismissed. Balancing out the requirement to discourage others from using Commonwealth material, the old foreign order approach seems to be fairly prevalent in the Commonwealth. In this particular cage that is what the defendant was doing; he was engaged on a forcign order, nol of very great magnitude, a fairly low level siluation., But that 1s what he was doing, and one of the reasons for punishment 1s to deter other people from doing the same thing. But balancing out the requirement to do that against the many factors which are in favour of the defendant, his good character and his co-operation with the police and so forth, I think I would be justified in notproceeding to a conviction in the circumstances of the matter. What the defendant was doing on the evening in question was quite wrong and he no doubt understands that, and did understand 1t at the time. Ile will have to pay for the materzals which he took from the Commonwealth without the Commonwealth's permission. There w21l1 be no question about that. But I propose, in view of his character, anteccdents and age and the circumstances surrounding this matter to proceed under section 19B of the Commonwealth Crimes Act. IL find the offence proved but in view of the matters which I have just outlined I fand it inexpedient to proceed to a conviction and I discharge the defendant conditionally upon his entering into a recognizance, his own surety, 1m the sum of $100 to be of good behaviour for a period of 12 months from this date. He is to pay the sum of $314.38 compensation to the Commonwealth of Australia.....28 days 1s granted to pay. That is on the first charge. In relation to the other charge there will be a similar release without the order for compensation." On 9 June 1978 Mr. Walklate served the prosecutor with a document dated 19 May 1978 in the following terms:- --/9 DATED this Nineteenth day of May 1978 "PUBLIC SERVICE ACT 1922 SUSPENSION OF OFFICER UNDER SECTTON 62 TO Leonard Albert DIXON Overseer (Printing) Grade 2, Outside Printeries, Government Printing Office, Canberra having been charged on or about the twentyeighih day of April 1978, an the Court of Petty Sessions at Canberra with the commission of criminal offences namely:—- (i) that you, between the 10th day of September 1977 and the 10th day of March 1978, at Canberra did steal, eight 'Itek' printing plates, five 'OER1' printing plates, ten litres of Electrostatic Solution, 10.5 kgms of printing ink, two 3M 'MGD! printing plates and 1,000 sheets of A4 printing paper. Value $153.44. Belonging to the Commonwealth. Contrary to Section 71 (1) Crimes Act 1914. (ii) that you, on the 1st day of March, 1978, at Canberra, did fraudulently misappropriate property, to wit, 6,000 sheets of A% Gold bond printing paper, one printing plate and a quantity of ink. Valuc $95.00, belonging to the Commonwealth. Contrary to Section 71 (1) Crimes Act 1914, (321i) that you, on or about the 9th day of March 1978, at Canberra, did fraudulently misappropriate property, to w2t, 10,000 sheets of blue A" bond printing paper, two printing plates and a quantity of ank, value $176.50, belonging to the Commonwealth. Contrary to Section 71 (1) Crimes Act 1914. (av) that you, on or about the 6th day of March 1978 at Canberra, did fraudulently misappropriate property, to wit, 2,500 sheets of A4 Bond printing paper, 2,500 sheets of Au Bank printing paper, three printing plates and a quantity of ink, value $66.02, belonging to the Commonwealth. Contrary to Section 71 (1) Crames Act 1914. I HEREBY SUSPEND him pursuant to Section 62 of the Public Service Act, 1922. (sgd.) A. R. Palmer Chief Officer" 22/10 . FREI serpentine nn NYS OE eRe a ot -~10- At the same time Mr. Walklate served the prosecutor with a document dated 19 May 1978 in these terms:- "PUBLIC SERVICE ACT 1922 NOTICE OF SUSPENSION UNDER SECTION 62 TO Leonard Albert DIXON Overseer (Printing) Grade 2, Outside Printeries, Government Printing Office, Canberra TAKE NOTICE that, as you have been charged on or about the twentyeighth day of April 1978, at the Court of Petty Sessions at Canberra with the commission of criminal offences, a copy of which charge 1s annexcd hereto, you have been suspended pursuant to section 62 of the Public Service Act 1922, and payment of your salary will cease during suspension. DATED thas Nineteenth day of May 1978 (sga.) A. R. Palmer Chief Officer" At the time Mr. Walklate served these documents upon the prosecutor he told him that it 1s normal practice to suspend an officer under s. 62 of the Public Service Act 1922 after that officer had been charged with a criminal offence. The prosecutor received a letter dated 8 June 1978 an the following terms:- "Suspension of Officer under Section 62 P.S. Act On 15.3.78, you were suspended from duty under Section 55 of the Public Service Act prior to the laying of charges. Following the laying of charges, you have now been suspended under Section 62 of the Public Service Aci. Originals of the suspension and notice of suspension together with a copy of Section 62 of the Public Service Act are attached. ef Re re re ee ee ee ee -1- The charges detailed in the suspension under Section 62 of the Public Service Act were heard in the Court of Petty Sessions on 31.5.78 and the Deputy Clerk of the Court of Petty Sessions has advised that you pleaded guilty to these charges and Magistrate Dainer, without proceeding to conviction, discharged you conditionally on your entering into a recognisance self in the sum of one hundred @llars to be of good behaviour for a period of twelve months from 31.5.78 and further to pay compensation in the sum of $314.38 - 28 days to pay. Ordinarily, in relation to the type of offences with which you have been charged, we would contemplate recommending to the Board a punishment of dismissal from the Service, To assist the Department in making a recommendation as to any action that might be taken under Section 62, and to assist the Board in considering such recommendation, you may, if you so desire, tender in writing, within seven days, any explanation or comment that you wish to be taken into account, such cxplanation or comment will be treated on an Tin confidence! basis, P, WESTAWAY) (se P. Westaway Assistant Secretary" On 14% June 1978 the prosecutor replied to the letter of 8 June 1978 in these terms:= "RE: LEONARD ALBERT DIXON I acknowledge receipt of your letter of 8 June, 1978. I note also that whilst I was notified that I was suspended under S. 55 P.S.A. no charges were laid against me under that Act although they could have been. 1 would, however, then have had a right of appeal an respect of any penalty. No such raght exists, I am advised, under S. 62. Further, J was not given the right to be heard in respect of that decision or, more importantly to me, the decision that I be suspended without pay. This has meant and will now continue to mean financial hardship to me and my family. we 2/12 ~12- 1 also note that I was not notified uniil 9 June, 1978 of either my suspension under S. 62 of the Act or that it was without pay. Jt follows that as these decisions purport io have been made on 19 May, 1978 1 was given no opportunity to be heard in respect of either of these decisions nor to advise the Couri of them. Your invitation to put submissions in respect of your recommendation concerning what action as to be taken by the Board 1s accepted by me therefore with gratitude. I also request that I be given the same opportunity to put submissions concerning this matter to the Board. The decision to be made 1s, as I am sure you appreciate most vatal to me and my family. If I am dismissed rather than punished by some less drastic course of action being taken I will not only lose my livelihood for the present time but also I fear that I will, in the circumstances, find it exceedingly difficulty to find alternative employment. loam in the difficult situation of course that I do not know if any matcrial has been put to you other than the matters leading to the charges against me which might be against my inlerests. If there is any such material I would appreciate the opportunity to comment on it. I would, if possible, like to make oral submissions through my counsel gencrally to you and to the Board. The following statement and attachments are submitted in relation to the matters which you have raised. Firstly, I wish to express my sincere regret that J took the actions for which I was charged an the Court of Petty Sessions, and to siate unequivocally that if I am given the opportunity to return to my former duties I would most certainly not engage in any such activities again. I realise that what I did was quite wrong, though at the time I did not properly consider the amplications of what I was doing. In regard to the use of the 10,000 sheets of 22. /13 ETAT Sa EVAR BANAT NO ATE TA LARIAT A A A oo ek ~13- "Old Gold' bond paper and the 10,000 sheets of 'blue bond! £ took these with the full intention at the time of replacing them the following week. J had tricd bul been unable to purchase this paper from a private printer, in time to complete the work which I had under- taken to do for the Y.M.C.A., on a personal basis, by Saturday 11 March, 1978. Tt had been my intention to do this work on my own machine at home. I am sure that you are aware that I have always beon a conscientious worker in the Department, making a point of completing any work assigned to me as quickly and efficiently as possible. As you know I have been in the Government Printing Office for over 20 years and have never previously been charged wilh any offence under the Public Service Act or otherwise. You will probably, from my work record, be aware of occasions when I have come into the Office to ensure that work was completed at times when I have been on recreation leave. Also, J have taken very littie sick leave over the years, preferring to come to work if at all possible. I have previously forwarded copies of testimonies from Mr. W. Wear, Deputy Assistant Governor of the Lions Club and Mr. Rose of the Lions Club of Canberra. However, for completeness I attach these, together with another testimony from a neighbour and long standing friend Mr. Jack Lette. Also attached is a copy of the transcript of the court proceedings on 31 May, 1978. I refer in particular to the reasons for the decision given by His Worship Mr. Dainer by which he ordered that no conviction be recorded against me and drew attention to the considerable financial loss which I have already suffered in addition to the psychological stress which I have been under since I was charged by the police. I draw attention particularly to Mr. Dainer's comment that if he imposed upon me a penalty involving imprisonment or a fine, from his experzence, it would be very likely that I would be dismissed. You will note that this is s1ig- nificant 1n view of his decision not to record a conviction againsl me and not to impose a fine. wee f/ th nk ee ge a NS ER NS a NN Ee Sr nate eee -14- Mr. Daarner went on to say — "Balancing out the requirement to discourage others from using Commonwealth material, the old foreign order approach seems to be fairly prevalent in the Commonwealth, In this particular case that 1s what the defendant was doing: he was engaged on a foreign order, not of very great magnitude, a fairly low level situation. But that is what he was doing, and one of the reasons for punishment is to deter other people from doing the same thing. But balancing out the requirement to do that against the many factors which are in Favour of the defendant, his good character and his co-operation with the police and so forth, I thank I would be jusiifi1ed in nol proceeding to a conviction in the circumstances in this matter. What the defendant was doing on Lhe evening in question was quite wrong and he no doubl understands that, and did understand it at the time. He will have to pay for the materials which he took from the Commonwealth without the Commonwealth's permission, There wall be no question aboui that. But I propose, in view of his character, antecedents and age and the circumstances surrounding this matter to proceed under section 19B of the Commonwealth Crimes Act. I find the offence proved but 3n view of the matters which I have gust outlined I find it inexpedient to proceed to a conviction and I discharge the defendant conditionally upon his entering into a recognizance, his own surety, in the sum of $100.00 to be of good behaviour for a perzod of 12 months from this date. Ie is to pay the sum of $314.38 compensation to the Commonwealth of Australia", In my submission the Magistrate's decision and the reasons he has given for it suggest that he was cndeavouring to minimize the possibility of my being dismissed as a result of my plea of guilty to the offences with which I was charged. The circumstances of the offences I committed was fully set out before Mr. Dainer and I will not repeat them as they are set out in the transcript herewith and in the address to the Court by my counsel, Mr. Terry Higgins. The fact that I was charged and dealt with according to law should I submit be regarded as a sufficient 20/15 -15- punishment to me with the loss I have already sustained through my suspension to date, This punishment I am sure will also deter others who might have bcen minded to commit similar acts to those which I committed. In all the circumstances I respectfully submit that I should not be dismissed as an officer of the Public Service, and that any punishment you decide to impose should be nominal. Yours sincercly, (sgd.) L. A. DIXON On 20 July 1978 the Chief Officer in a minute to the secretary of the Board recommended the dismissal of the prosecutor. The minute is in these terms:- MMecommendation for Dismissal of an officer L.A Dixon, Overseer (Printing) Grade 2 Government Pranting Office, Canberra Mr. Leonard Albert Dixon was formally suspended from duty under Section 55 of the Public Service Act on 14 March, 1978. The Public Service Board issued a salary deprivation order on 21 March 1978. The Chief Officer, on 19 May, 1978, formally suspended Mr. Dixon under section 62 of the Public Service Act, this suspension indicated the four charges laid against him under Section 71 (1) of the Crimes Act 1914. <A copy of the formal instrument of suspension is attached. The four charges were heard in the Court of Petty Sessions at Canberra on 31 May 1978 and the following 1s an extract from Magistrate Dainer's summation and finding: "But I propose, in view of his character antecedents and age an the circumstances surrounding this matter 10 proceed under section 19B of the Commonwealth Crimes Act I find the offence proved bul in view of the matters which I have jgusl outianed I fand it inexpedient to proceed to a conviction and 1 discharge the defendant 222/16 EE I TE EEN GTS TAT i Tea Ll C5 Re Ne EE Me edie de te RET pete conditionally upon his entering into a recognizance, his own surety, in the sum of $100 to be of good behaviour for a period of 12 months from this date. Ile is to pay the sum of $314.38 compensation to the Commonwealth of Australia. 28 days 1s granted to pay. That is on the first charge. Tn relation to the other charge there will be a similar release without the order for compensation", Relevant documentation as per the attached list, including a copy of the Transcript of Proceedings before J.J. Dainer, Magistrate, 1s attached for your perusal and guidance. The comments of the Government Printer in Attachment 6 include references to alilcged earlier transgressions similar to those for which Mr Dixon was charged aun the A.C.T. Court of Petty Sessions but it is considered that any further action that might be taken under Section 62 (2) of the Public Service Act must necessarily be confined to the charges actually laid and heard. With this reservation, documents have been carefully reviewed and particular attention has been given to Magistrate Dainer's summing up and conclusion in which he found the charges proved and conditionally discharged Mr. Dixon on $100 self surety to be of good behaviour for 12 months and to pay $314.38 compensation to the Commonwealth. The Magistrate's decision appears to have been based on testimonials to Mr. Dixon's good character, undustry, application to community actavatzes and his quite extensive co-operation with the Police. The Magistrate's leniency in not proceeding to conviction and requiring restitution in respect of only one of four charges 1s of course a legal decision based upon facts and evidence. It does not recognise the particular administrative responsibilities of the Department and the Service; ain the matter of such conduct Mr Dixon stole Commonwealth property and used Commonwealth equipment for personal gain and has admitted this. It is appropriate to take full account of all such matters in considering disciplinary action eg. the extent to which Mr. Dixon betrayed his position of trust in respect of work illegally «26/17 She thi Ae -17- produced on Commonwealth premises and equipment and the materials used for such purpose. Conduct of this nature is not acceptable in the terms of Mr Dixon's responsibilities to A.G.P.S. and the Public Service and 1t is sirongly recommended that he be dismissed from the Commonwealth Public Service, sgd.)A, R. Palmer A. R. PALMER) Chief Officer" On or about 28 August 1978 the respondent Robert John Young, a member of the Board, received a file relating to the prosecutor, together with a minule from an officer of the Board, Christine Mary Goode, in the following terms:- "Mr. L.A. Dixon - Proposed Dismissal 1. Mr. L.A. Dixon 1s an Overseer (Printing) Grade 2 in the Printing Branch of A.G.P.S. He was appointed to the A.P.S. on 29 January 1958. 2. Mr. Dixon was suspended from duty by the Chief Officer of the Department of Administative Services on 14 March 1978, when there were reasons to believe that he had committed an offence under Section 55 of the Act, and pending the outcome of anvesiigations by the Commonwealth Police. Mr. Daxon was'initially suspended under Section 55 (3) (a) of the Public Service Act, and the Board pursuant to Section 60 (4) authorised that he should not receive his salary during suspension. 3. On 28 April Mr. Dixon was charged with stealing and fraudulent misappropriation of Commonwealth property in the Court of Petty Sessions. Following the laying of criminal charges, the Chacf Officer on 19 May suspended Mr Dixon pursuant to Section 62 of the Public Service Act. 4, On 31 May 1978, Magistrate J.J. Daaner of the Court of Potty Sessions found the offences proven, but found 1t ""anexpedient to proceed to a conviction". (folio 38). He discharged Mr, Daxon "conditionally «2/18 ee eee ee ~18- upon his entering into a recognizance, his own surety, in the sum of $100 to be of good behaviour for a period of 12 months from this date. He as to pay the sum of $314.38 compensation to the Commonwealth of Australia". (folio 38) 5. Mr. Hunt of Legislation and General Branch has advised that such a finding by a magistrate, where there is no procceding to a conviction, does constitute an officer being found guilty of an offence in the terms of Section 62 (2) of the Public Service Act. I understand there is an advising from the Attorney—General's Department to this effect. (See folio 83). Further action by the Department of Administrative Services has therefore been taken pursuant to Sectaon 62. 6. Although there 1s at present no provision for an officer to appeal against proccedings taken pursuant to Section 62, the Department of Administrative Services on 8 June 1978 informed Mr Dixon that a recommendation for his dismissal was under consideration, and gave him an opportunity to tender an explanation, or comment (folio 37). Havang received Mr. Dixon's explanation the Chief Officer of the Depariment of Administrative Services on 20 July 1978 recommended Mr. Dixon's dismissal in view of his betrayal of a position of trust. The Regional Director, Canberra, has reviewed the cas®@ and is of the view that dismissal 1s warranted. 7. j.(&In view of his misappropriation of Commonwealth property, his breach of trust as a supervisor, and his involvement of subordinates in foreign order work to his own profit, it 1s recommended that Mr. Dixon be dismissed from the Service. 8. The recommendation in paragraph 7 1s made in the light of the significance of Mr. Dixon's misconduct. Poants which might have some bearing on the above judgement are those put forward by Mr. Dixon in his statement of explanation (folios 34-36). Mr. Dixon commenis on the potential consequences of dismissal in making it very difficult for him to find alternative }employment; expresses regrel for his actions and states that he would not engage in such actions again; refers to his conscientious work habats over 20 years and the fact that he has not previously been charged with an offence under the Public Service Act; refers to the magistrate's 26/19 ae er en = -19- references to his good character and the fact that he did not procecd to a conviction partly in order to minimise the chances of Dixon's dismissal (see also folio 37)3 claims that his being dealt with according to law is a sufficient punishment; and attaches copies of testimonies to his personal character (folios 29-32). 9. Against Mr. Dixon's explanation and the testimonies to his character should be balanced the following facts:- - the Government Printer's statement that the charges laid against Mr, Dixon represent only the "tip of an aceberg" in terms of the foreign orders he had been producing utilizing Commonwealth property and staff (folios 25-27)3 see also folios 11-12); - difficulties caused to management over the years by Mr. Dixon's abuse of senior officers, overbearing behaviour to his staff, and uncivil and abusive behaviour to clients e.g. notice of dismissal given in August 1966 for use of filthy language; complaint of lack of civility from Mr. J. Green, letterpress section November 1968; compiaini of Dixon's vulgar and abrupt behaviour and unreasonably severe pressure tactics by a member of his staff 3 March 1972; complaint from Department of Business and Consumer Affairs about Dixon's abuse and foul language July 1977. (see folios 11-23) 10. On balance it 1s considered thal other factors do not mitigate the seriousness of Mr. Daxon's offence nor alter the assessment that dismissal 1s warranted. 11. An instrutkent of dismissal for your signature is attached. Cc. M. GOODE) 23.8.78 " sec.) C. M. Goode The file contained "a brief of evidence from the Commonwealth Police" together with the transcript of the criminal proceedings concerning the prosecutor that took place before Mr. Dainer S.M. on 31 May 1978. The fale «+ /20 PETTY AT TR TET IIIA TROT IE FECT It I ETT PE MEL TS FO TEE TE Te ETE RTECRI EN ee ra meee ~20- also ancluded testimonials on behalf of the prosecutor, various recommendations for dismissal from the Public Service as well as complaints, and reports on the complaints, as to the performance by the prosecutor of his duties and an inslrument of dismissal. The file also contained the letter from the prosecutor dated 14 June 1978 which I have set out earlier. Mr. Young read and considered the whole file on 28 August 1978. He deposed in his affidavit as follows:- "5, T am aware that under S. 62 (2) of the Public Service Act 1922 the required condition precedent for dismissal is the finding of guilt upon the hearing of a criminal charge by any Court. 6. I was informed and verily believed that as at 28 August 1978 that conditLon precedent existed in relation to my deliberations concerning Leonard Albert Dixon. 7. After satisfying myself that Leonard Albert Dixon was liable for dismissal I considered the written representations of Leonard Albert Dixon referred to in paragraph - 3, together with the recommendations as to why he should be dismissed however in making my decision I disregarded those matters mentioned an paragraph 9 of Annexure "A" herein as in my opinion the material on the file did not provide sufficient evidence to substantiate those matters." The written representations of the prosecutor, described as being those referred to 1n paragraph 3, are those contained in the letter of 14 June 1978. The document annexure "A" to Mr. Young's affidavit is the minute from Christine Mary Goode. On or about 29 August 1978 the respondent John Casey Taylor, a member of the Board received a file relating -21- to the prosccutor, together with the said minute from Christine Mary Goode. The file contained the same documents or copies thereof as were included in the file sent to and read by Mr. Young. Mr. Taylor read and considered the whole file on 29 August 1978. In his affidavit of 30 April 1979 Mr. Taylor deposed as follows:- "5. Iam aware that under 8. 62 (2) of the Public Service Act 1922 the required condition precedent for dismissal is the finding of guilt upon the hearing of a criminal charge by any Court. 6.___T was informed and verily believed that as at 29 August 1978 that condition precedent existed in relation to my deliberations concerning Leonard Albert Dixon. 7.___ After satisfying myself that Leonard Albert Dixon was liable for dismissal I considered the written representations of Leonard Albert Dixon reforred to in paragraph 3, together with the recommendations as to why he should be dismissed however in making my decision I disregarded those mattcrs mentioned in paragraph ~ 9 of Annexure "A" herein as in ny opinion the material on the File did nol provide sufficicnt evidence to substantiate those matters." The documents referred to in paragraph 7. of his affidavit are the same documents as were referred to by Mr. Young in paragraph 7 of his affidavit On or about 5 September 1978 the prosecutor received a letter dated 1 September 1978 ain the following terms :- "You are hereby advised that following a recommendation from your Chief Officer, the Public Service Board has pursuant to its powers under sub-section 62 (2) of the Public Service Act, dismissed you from the Australian —-22- ; Public Service with effect from 29 ' August 1978. Yours far.thfully, sed.) R. N. McLeod R.N. McLEOD) Secretary" In his evidence, by affidavit (he was not cross-examined) in these proceedings the prosecutor said:- "The brief circumstances of the offences were that J used some matertals from the Printing Office to run off a printing gob I was doing on a cost only basis for a local charity. TT had been going to use materials 1 would purchase on my own machine, however, my supplier was out of the materials I needed and . my machine broke down before the run was complcted. Thus I used the Commonwealth's materials :ntending to replace them and was finishing the run on - Printing Office machine when I was questioned by Police to whom J made a full admission of what 1 had done. My Chief Officer is the Government Printer, Mr. John Thompson. Shortly after my being questioned by Police and before I was charged Mr. 'Mhompson spoke to me and told me that he would recommend that 1 be dasmissed upon my conviciion for what I had done. Ue did not ask me anything about the carcumstances of the offence or ask for details or submission from me about this or my service to the Commonwealth, the community and my family circumstances before announcing his decision so to recommend." The prosecutor says that the Board, before dismissing him, did not tel] him what the recommendation of his Chief Officer, the Government Printer, Mr. John Thompson was, or the reasons therefor, so that he might be heard with respect thereto. In his affidavit of 1 May 1979 the prosecutor 22/23 PESO G I ERT TI AIS NS EE EIT OE FI TPM CLE E I OR EGC OO NL TL ET EY TTR ETRE TE I YEE ILL LN TE a RS I ON LY =23~ said that if he had been shown either the Board file which was considered by the Commissioners or the minute of Christine Mary Goode, he would have taken the opportunity to reply thereto, As to paragraph 7 of Christine Mary Goode's minute, the prosecutor said that he would have sought to adduce evidence:- "(a) Aithough I abused my position as an employee I did not abuse my position as a supervisor as the work was done after hours, that is after my duties had ceased (b) The "foreign order work" was for charity and no profit to me contrary to the allegation made therein (c) I involved no "subordinales" 1n that work as 1t was done in the absence of other cmployces and without their knowledge contrary to the allegation made therein (a) In the report no acknowledgement is made of the fact that the compensation ordered by the Court to be paid by me had been paid nor of the truth of the statements made by me that I had over the years contributed over and above the work demanded of me in terms of both hours and occasionally materials." As to paragraph 9. of the said minute the prosecutor said:-— "I would have objected to Board members being shown material such as that referred to therein and to them reading it or reading of 1l. If the Board had, nevertheless, decided to read it I would have sought to adduce evidence of the circumstances either disputing or surrounding any such allegation as appropriate. I do not believe that the allegations in paragraph 9 aforesaid were regarded as irrelevant as suggested af only for the reason that the same formed the basis for Lhe recommendation made and persisted an by the Department of Administrative Services relevant officers that I be dismissed which, without Lhose matters having been taken into account, may well have been different." oo /24 ~24- Mr. Young and Mr. Taylor were cross-examined. I shail deai later with their evidence; but shall say now that they impressed me as witnesses of trulh whose evidence was reliable. The prosecutor challenges his suspensions from duty without pay notified to him on 15 March 1978 and 9 June 1978 and his dismiscal from the Public Service on 29 August 1978. As to the first suspension, it was the act of the Chief Officer by instrument dated 14 March 1978 and notified to the prosecutor on 15 March. YThe Board later ordered pursuant to s. 60 (4) of the Public Service Act 1922 ("the Act") that the prosecutor would not receive salary during the period of suspension, The prosecutor was notified of this decisicn on 11 Apral 1978. The prosecutor attacks the Chief Officer's decision to suspend on two grounds. The farst ground 1s that no charge was laid againsi the prosecutor under s. 55 of the Act and, without such charge being laid, there was no power to suspend him. It is necessary to set out, so far as relevant, the legislative scheme which regulates the discipline of officers of the public service under the Act. An officer (other than an officer in the first or second division of the public service) who engages in any of the conduct specified in s. 55 (1) (a) to (h) of the Act, which includes disgraceful or improper conduct, is guilty oe /25 =25- of an offence and liable to puntshment determined under s. 55. If the Chief Officer has reason to believe that an officer has committed a minor offence he may call upon the officer for an explanation and if, on consideration of the explanation, he is of opinion that the offence has been committed, he may caution or reprimand the officer or fine him a sum not exceeding one dollar: s. 55 (2). Where there is reason 10 believe that an officer (not being an officer of the first or second division) has committed an offence, other than a minor offence, the officer may be charged by the Chief Officer and, 1f 11 1s considered that the charge is of such a serious nature that the officer should not continue in the performance of his duty, he may be suspended by the Chief Officer, ox in case of emergency, by any other officer having power to lay a charge. The suspension may be effected prior to or al the time of or subsequent to the laying of the charge, and may be removed at any time by the Chief Officer pending determination of the charge or in any case where the charge has not been sustained, immediately upon a finding to that effect: s. 55 (3) (a) and (b). Upon a charge being laid against an officer, he shall forthwith be furnished with a copy of the charge and shall be directed to reply forthwith in writing stating whether he admits or denies the truth of the charge and giving any explanalion he desires in regard thereto. Ifa .-./26 ~26- reply is not made by the officer within seven days of his receipt of the charge, he shall be deemed to deny the truth of the charge: s. 55 (3) (c). If the Chief Officer, after consideration of reports relating to the offence, the charge and the reply and explanation, if any, of the officer charged and any further reports he may consider necessary, 1s of opinion that the charge has been sustained he may fine the officer any sum not exceeding $40.00 or reduce his salary or reduce him to a lower division, class or position, and salary, or transfer him to some other position or locality, which transfer may be in addition to fine or reduction or recommend to the Board the dismissal of the officer from service. If the punishment 9 imposed or recommended hy the Chief Officer be other than a fine not exceeding four dollars, or 1f, in the case of an officer who has been deprived of his salary during suspension, the amount of the fine imposed, together with the amount of salary of which he has been deprived, exceeds four dollars, the officer May appeal in the manner and time prescribed, not being a time less than seven days, against the decision of the Chief Officer and the appeal shall be heard by an Appeal Board: s. 55 (3) (da). Tf no appeal is made by an officer against a recommendation that he be dismissed, the Board may dismiss the officer or impose any other of the punishments to which .e/27 -27- JI have referred. The appeal may be made on the ground of annocence of the charge or excessive severity of the punishment; and the Appeal Board may confirm, annul or vary the decision appealed against by imposing any oiher punishment specified above, and its decision shall be final, save that in any case where the Appeal Board considers that the officer should be dismissed the case shail be referred by the chairman of the Appeal Board to the Board which may dismiss the officer from the service or my impose any such other punishment as 1s mentioned above. In the hearing of any appeal against the excessive severity of the punishment the Appeal Board is obliged to take into consideration the provious record of the officer: s. 55 (3) {e) and (4+). The Appeal Board comprises a chairman who shall have the qualifications of a Stipendiary Magistrate, and an officer of the Department to which the appellant belongs appointed by the Chief Officer and an officer clected as prescribed by and from the office of the division in which the appellant 1s included in the State or Territory in which the appellant performs his duties, Any two members of an Appeal Board may by consent of the parties concerned exercise all powers of the board for investigation and decision: Ss. 55 (5). Where an officer has been suspended under s. 55 and the Chief Officer, afler consideralton of the reports relating to the offence and charge and the reply and explanation if any, is of the opinion that the charge against the officer has not been sustained or an Appeal far -28- Board fands that the charge against Lhe officer is not proved, the Chief Officer shall forthwith remove the suspension: s. 55 (10). At any meeting of an Appeal Board where the members present are divided in opinion the question shall be decided according to lhe decision of the majority if there be one and, if they are equally divided, the question shall be postponed to a later meeting of the board: s. 55 (9A). Where an officer of the first or second division is charged with any of the offences specified in s. 55, the Minister in the case of an officer of the first division, and the permanent head in the case of an officer of the second division, may suspend the officer and, upon such suspension, shall forthwith report the charge and suspension to the Board. If the officer does not in writing admit the truth of the charge the Board shall appoint a Board of Inquiry consisting of three persons and which shall not include the person by whom the charge as made, which shall inquire into the truth of the charge thereon: s. 56 (1). If any of the charges are admitted or are found by the Board of Inquiry to be proved then the Board may make such recommencations as to the punishment or otherwise of the person charged as it thinks fit. On receiving such recommendation the Governor-General may dismiss the officer ~--/29 -29-~ from the service or reduce him to a lower division and salary or impose such penalty or other punishment as the case demands: s. 56 (2). If the charges are found by the Board of Inquiry not to be proved the suspension shall be ismmediately removed by the minaster orpermanont head as the case may be: s. 56 (3). Any officer, upon the hearing by the Board of Inquiry or Appeal Board in relation to any charge against him, shall be entitled to be represented by counsel, attorney or agent who may examine witnesses and address the Board on his behalf. The charging authority has a similar right of representation: s. 57 (1). It shall be the duty of the Board of Inquiry or Appeal Board to make a thorough investigation without regard to legal forms and solemnities and to direct itself, by the best evidence which 1t can procure or which 1s laid before 1t, whether the evidence is such as the law would require or admit in other cases or not: s. 57 (2). If an Appeal Board is of opinion that the appellant officer had no reasonable grounds for appeal, and that the appeal was frivolous or vexatious it may recommend iv the Board that the officer be required to pay such sum as the Appeal Board thinks fit, but not exceeding the cost of the hearing, and the Board may order the appcllant to pay such sum or lesser amount as it thinks fit, and the sum so ordered shall be recoverable in the manner prescribed for .../30 -30- the recovery of fines for breaches of the Act or the Regulations: s. 57 (3). The Chairman of any Board of Inquiry or Appeal Board may summon person to attend, take evidence on oath and require the production of documents: s. 58 (1). Any officer who, without reasonable cause, neglects or fails to attend in obedience to the summons or to be sworn or to answer questions or produce documents relevant to the subject of the inspection, inquiry or investigation, shall be guilty of an offence against the Act: s. 58 (2). Any person, not being an officer who, after payment or tender of reasonable expenses, neglects or fazlis, without reasonable cause, to attend in obedience to the summons, or to be sworn, or to answer questions or produce documenls relevant to the subject of the inspection, inquiry or anvestigation shall be gualiy of an offence: s. 58 (3). ~ A person is not compellable to answer incriminating questions: s. 58 (4). In any case where a charge against an offaccr is dealt wath by a Board of Inguiry or Appeal Board, a copy of all documents antended to be used at the inquiry shall, where practicable, be furnished to the officer at least seven days before the inquiry 1s held: s. 60 (1). Where any charge against an officer is dealt wath by a Board of Inquiry or Appeal Board, that board shall have the right to direct that the inquiry be held in public or an private: s. 60 (2). A Board of Inquiry or Appeal Board has power, ..-/31 -31- where it finds a charge is not proved or upholds an appeal, to recommend that the reasonable expenses or part thereof incurred by the officer in meeting the charges or prosecuting the appeal be paid, the amount of such expenses to be mentioned in the recommendation. If approved by the Board the amount may be paid to the officer: s. 60 (3). Sub-seciion (4) of s. 60 provides: "Where an officer has been suspended for an offence under the Act, he shall be entitled to receive his salary during the period of suspension, unless he absconds, or unless otherwise ordered by the Board, upon report of the Chief Officer." Section 62 deals with the discipline of officers charged with or found guilty of criminal offences against the law punishable on indictment or on summary conviction. I shall refer to that section in some detail later. Although s. 20 of Act No. 170 of 1978 provides for the repeal of ss. 55-62 anclusive, at the date of this judgment the repealing provisions have yel to be proclaimed. I return to the first ground of attack on the Chief Officer's decision to suspend the prosecutor on 14 March 1978. Section 55(3) 1s the source of the power to suspend exercised by the Chief Officer. Ii may be exercised before, at the time or subsequent to the Jaying of a charge that the officer "has committed an offence." In my opinion the offence of which s. 55 (3) speaks 1s an offenco under the Act rather than an offence otherwise under the law. 'The sub-section 18 directed primarily to the offences ciuumerated in sub-section (1) of s. 55, not being minor offences. No charge was ever laid against the prosecutor for an offence committed under the Act. The charges were -32- jaid for offences under the Crimes Act 1914 (Commonwealth). ' It has not been contended that there was not "reason to believe" that the prosecutor had "committed an offence" under the Act. One or more of the offences enumerated in s. 55 (1) may have been committed by the prosecutor. I say nothing further as to that, Inherent in the prosecutor's submission are the seeds of its own destruction because the submission concedes that on the facts of this case one cannot determine the validity of the suspension at the time the power to suspend was exercised but only later, in the light of the fact that no charge was ever laid under the Act. The position may be different if it were established that there was no intention to lay a charge for an offence under the Act at the time the prosecutor was in fact suspended. This has not been contended and the evidence would not support it. Section 55 (3) (a) provides that "the officer may be charged by the Chief Officer... and may if 11 1s considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by the Chief Officer «ee3" yet paragraph (b) vests the power of suspension in the Chief Officer before the charge 1s laid as well as later. The language of paragraph (a) postulaies, when read literally that there 1s something answering the description of "the charge," notwithstanding that no charge has been laid in + +/33 -33- facl at the time of the suspension. It may be that the word "charge" where sccondly appearing in paragraph (a) means "offence", or 1t may mean simply a prospective charge that may be laid later, Whatever the answer to this question may be,1t has not been contended, nor would the evidence support such a contention, that the Chief Officer did not consider that "the charge" was of such a serious nature that the prosecutor should not continue in the performance of his duty. This farst attack fails. The second ground on which the Chief Officer's first decision to suspend the prosecutor is challenged is that the prosecutor was not given an opportunity to be heard whether orally or in writing, in his defence before he was suspended. Thus the prosecutor seeks 1o invoke the rules of natural justice. There 1s a duty to observe the principles of natural justice whether the relevant exercise of authority is judicial, quasi-judicial] or administrative: See Cooper v. Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180 or 143 E.R. 414; Ridge v. Baldwin 1964 A.C. 40; Municipal Council of Sydney v. Uarris (1912) 14 C.L.R. 13 Twast v. Randwick Municipal Council (1976)136 C.L.R. 106; Heatley v. Tasmanian Racing and Gaming Commission (1977) 14 ALR. 5193 and R. v. Wilson; Ex parte Donaldson (1978) 19 A.L.R. 235. The rule of nalural gustice that a statutory authority, having power to affect the property or office of a person, is obliged lo hear him before exercising the power, may be dasplaced by legislation. In Twist v. Randwick 22 /34 -34- Municipal Council (supra) Barwick C. J. said at pp. 109-110:- "The common law rule that a statutory f authority having power to affect the rights of a person 1s bound to hear him before exercising the power is both fundamental and universal: see Cooper v. Wandsworth Board of Works (1863) 14 cB (NS) 180; 143 ER 414, and R. v. Electriaciy Commissioners; Ex partie London Jlectricty Joint Committee Co. 1920) Ltd. 1924 1 K.B. 171 at 205. Bui the legislalure may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statulory powers are to be exercised only after an appropriate opportunity has bcen afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the Icgislation even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by itis legislation decided what opportunity should be afforded, the court, be.ng bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in Lhe provision of natural gustice may declare that statutory action affecting the person or property of the c1t1z¢en without affording the citizen an opportunity to be heard before he or his property 1s affected is aneffective. 'The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where 22/35 -35- the legislation is silent on the matter, the court may presune that Lhe legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle 1s in accord with the authorities, including partscularly the case of Wiseman v. Borneman 1971 AC 297," This passage was cited with approval by Aickin J., in whose reasons for judgment Stephen and Mason JJ. concurred, an Heatiey v. Tasmanian Racing and Gaming Commission (supra); and by Bowen C. J., 1n whose reasons for judgment Blackburn J. concurred, in R. v. Wilson; Ex parte Donaldson (supra). It is possible that legislalive silence on the question may give rise to an inference that Parliament did not intend the grant of power to be qualified. This must depend upon the obyect of the Act of Parliament itscif, the purpose of the grant of power and the circumstances surrounding that grant: see Salemi v. Minister for Immigrati or and Ethnic Affairs (No. 2) (1977) 14 A.L.R. 1 and R. v. Wiison (supra). The power to suspend vested an the Chief Officer or other officer having authority to lay charges under the Act may be exercised before or at the time of or after the laying of a charge for an offence under the Act. The suspension operates pending determination of the charge: see s. 55 (3) (b). The power of suspension vested in the Chief Officer under s. 55 is not for the purpose of imposing a penalty or sanction upon the officer concerned. Ji does not have penal consequenccs. The power of suspension exists to aid the ../36 tery e e e ~36~ proper administration, the maintenance of high standards of integrity and the preservation of the morale of the , public service of Australia pending the hearing and determination of the charge. Lord Denning had this to say in Lewis v. Heffer & Ors, 1978 1 W.L.R. 1061 at pp. 1072 and 1073:- "13. Natural justice But then comes the point: are the N.E.C. to observe the rules of natural justice? In John v. Rees 1970 Ch. 345, Meggary J. held that they were. He said, al p. 397: "suspension 1s merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his raghts of mombership or office. Accordingly, itn my judgment the rules of natural justice prima facie apply to any such process of suspension in the same way that they apply to expulsion," Those words apply, no doubt, to suspensions which are anflicted by way of punishment: as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor 1s suspended from practice. But they do not apply to suspensions which are made, as a holding operation, pending inquirics. Very often iurregularilies are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Suspicion may rest on him: and so he is suspended until he 1s cleared of 1t. No onc, so far as I know, has ever qucstLoned such a suspension on the ground that 1t could not be done unless he is @1ven notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case 1s merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order lo get back to proper work, the man 1s suspended. At thal stage the rules of nalural gustice do not apply: see Furnelt v. Whangarei Schools Board 1973 A.C. 660. So 1n this case the rules of natural guslice do not apply. The suspensions are not anvalid on that account, " wee we en er terete 8 ee eee re ee ee re =: -37- The other members of the Court of Appeal (Ormrod L.J. and Gcoffrey-Lane L.J.) agreed with the Master of the Rolls on that point, Geoffrey-Lane L.J. added this observation at 1078 and 1079:~ "So far as the rules of natural justice are concerned, it 1s suggested that before the N.E.C. suspended the committees and officers they should have been heard, and the fact that they were not heard was a breach of the rules of natural justice sufficient to aunvalidate the suspension. It seems to me that this suspension was an administrative action which by its very nature had to be taken immediatoly. It was impossible for the N.E.C. at that stage - and I emphasisc those words "at that stage'"-~to hear both sides. in most types of investigation there is in the early stages a point at which aclion of some sort must be taken and must be taken farmly in order to set the wheels of investigation in motion, Natural justice will seldom if evor at that slage demand that the investigator should act judicially in the sense of having to hear both sides. No one's livelihood or reputation at that stage 1s in danger. But the further the proceedings go and the nearer they get to the imposition of a penal sanction or to damaging someone's reputation or to inflicting financial loss on someone the more necessary it becomes to act judicially, and the greator the importance of observing the maxim audi alteran partem., it seems to me in the present case, so far as anyone can judge on the facts before us, natural yustace does not demand that anyone should be invited to provide an explanation or excuse before that suspension was imposed." In my opinion those words of their Lordships are apposite to the present case. 'They support my conclusion that the audi alteram partem rule does not apply to the power of suspension under s. 55 (3) (a) and (b). See also the decision of the House of Lords in Furnell v. Whangarer1 Schools Board 1973 A.C. 660. .- »/38 -38- In my opinion the conclusion I have reached is supported by the provisions of the Act to whicl: I have referred. The Act contains an elaborate code providing that where an officer has commilted an offence, other than a minor offence, under the Act he may be charged by the Chief Officer with the offence. The Chief Officer 1s obliged to consider reports relaiing to the offence and the charge, to furnish the officer with a copy of the charge and to darect him to reply forthwith in writing stating whether he admits or denies the truth of the charge and giving any explanation he desires in regard thercto, The officer is deemed to have denied the truth of the charge if he does not reply within seven days of reccipt of the charge. The Chief Officer is required to consider reports relating lo the offence and the charge together with the wply and explanations, if any, of the officer concerned and any further reports he considers necessary. Ilis powers are rather limited ancludang power to impose a maximum fine of $40.00; but he may recommend to the Board that the officer be dismissed from the public service. An appeal lies, except in certain minor iansiances, from the decis2zon of the Chief Officer to the Appeal Board which is obliged to make a thorough unvestigation of the matter. The Appeal Board is vested with power lo take evidence, summon persons and obtain documents. he officer is ocnlitled to be represented by counsel or solicitors as 1s the charging authority. Thus the Act specifically provides for the observance of rules of fairness and proper conduct beforethe Chief Off-cer 20/39 free wreoomere- + -39~ on the hearing of a charge and before the Appeal Board. The Act is silent as to the procedures that are to be observed or the rights that exist in relation to the Chief Officer's power of suspension pending the hearing and determination of the charge. Although one would not readily hold that the legislation displaced the rules of natural justice, in my opinion the audi alteram partem rule is displaced by this legislation as to the power of suspension by the Chief Officer under s. 55. I say nothing at this stage as to whether the rules of natural justice are otherwise displaced by the Act. My conclusion 1s reinforced by the provisions of sub-section (10) of s. 55 which provides:- "(10) Where an officer has been suspended under this section and -- (a) the Chief Officer, after consideration of reports relating to the offence and charge and the reply and explanation, if any, is of opinion that the charge against the officer has not been sustained; or (b) an Appeal Board finds that the charge against the officer is not proved, the Chief Officer shall forthwith remove the suspension." Sub-section (10) proceeds on the assumption that an officer may be suspended under s. 55 without the Chief Officer being obliged to ca.1 for reports or to hear, orally or in writing, what the officer has to say. Once he has been suspended the Chief Officer, having considered the relevant reports, reply and explanation, if any, and having formed the opinion that the charge has not been sustained, 15 «+. /40 -- ee Sire ee ee ee : - peepee Fee eee ee ~ho- obliged to remove the suspension forthwith notwithstanding that the charge may not have been heard or determined. I turn to the contention of the prosecutor that the decision of the Board disentitling the prosecutor to receipt of his salary during the period of first suspension 1s liable to be quashed on the ground that the rules of natural justice were not observed. It is agrecd that the prosecutor was not given an opportunity to be heard either orally or in writing in relation to the decision of the Board that he receive no salary during the period of first suspension, Section 55 does not itself confer authority to deprive an officer of his salary during a period of suspension. 'The section assumes the existence of such a power: See the proviso to paragraph (d) of sub-section (3) o1 s. 55. It 1s agreed that the only source of authority for the Board's decision is s. 60 (4) of the Act. It was not contended that sub-section (4) is limited in its operation to the circumstances referred to in the preceding sub- sections of s. 60, namely proceedings before a Board of Inquiry or Appeal Board. The Act 1s silent as to the manner in which the power conferred by sub-~section (4) of s. 60 is to be exercised by the Board save that 1t assumes that there wi1l be a report of the Chief Officer and doubtiess that the Board will consider 1t before exercising its powers. The eae fh —— TOM ene e sen ee une nee Wee me me -- - 7 wee ae disentitlement of an officer to receipt of salary during a period of suspension is automatic if the officer absconds. In my opinion this legislative silence does not @1ve rise to an inference that Parliament intended to exclude the rules of natura] gustice. I understand the necessily for the Chief Officer having power to suspend offacers of the public service temporarily until charges against them have been heard and determined without recourse to the audi altcram partem rule; but to deprive an officer of his salary during a period of suspension is a different matter. Perhaps the power to deprive an officer of his salary during the period of suspension conferred by sub-section (4) of s. 60 carries with il power to pay ham his salary 1f he be subsequently cleared of the charge. I need not decide that question. Tt was contended by Mr. Murphy Q.C. that the very nature of the conduct of the prosecutor compla1tined of ain the present case, namely, stealing from the Commonwealih and punishable undcr the general law on andictmeni, leads to the conclusion that the rules of natural justice do not apply to the Board in its exercise of the power to deprive the prosecutor of his salary during the period of suspension. f do not accept that contention as sound, The maintenance of the integrity and the morale of the public service may require immediate suspension of officers in certain circumstances, such as those 1n the present case, but I fail to see why those objectives empower a statutory body to deprive a man of his salary, cven if it 22/42 i ee eee ee ms -42~ be on a temporary basis, in the absence of express statutory authority, without observing the basic principles of natural justice including the principle that he should have the opportunity of being heard in his own defence. The prosecutor had been a member of the public service for some twenty years, employed as an overseer in the Government Printing Office. He occupied a position of trust. It was alleged that he had breached that trust. Indeed he admitted the breach on 14 March 1978. It is hardly surprising that in those circumstances the Chief Officer decided that day to suspend him from the public service. In my opinion the act of the Board, communicated to the prosecutor on 11 April 1978, depriving him of salary during the period of suspension is in a different category. The prosecutor should have been given an opportunity to put his case to the Board before he found himself at least temporarily without salary. It is true that the suspension of the prosecutor carried with it the permission of the Board to engage in outside employment during the period of his suspension; but this wes cold comfort to the prosecutor. Accordingly, the prosecutor's challenge to this decision of the Board succeeds. I turn to the second suspension of the prosecutor. By document dated 19 May 1978 the Chief Officer suspended the prosecutor under s. 62 of the Act on the grovnd that he had been charged on or about 28 April 1978 in the Court of Petty Sessions at Canberra with the commission of a criminal offence. Notice of the suspension was served on the prosecutor on 9 June o 20/45 pa ~45— 1978, nine days after he had pleaded guilty to the charges before Mr. Dainer S.M. and had been dealt with by him. Section 62 of the Act provides as follows:- "62, (1) Where an officer is charged with having committed any criminal offence against the law of Australia or of a State or of a Territory, punishable either on indictment or on summary conviction, he may be suspended by an authorized officer. (2) If, upon the hearing of the charge by any court, the officer is found guilty of the offence, the Board may (whether the officer has been suspended or not) dismiss him from the Service, or reduce him to a lower Division, class, or officer and salary, or reduce his salary, or inflict such other punishment as the case demands. (3) Any officer who is so suspended or dismissed shall, unless the Board otherwise directs, not receive any salary from the date upon which or for the period during which, he ceased to perform the duties of his office. (4) The Chief Officer may at any time remove the suspension of any officer suspended under this section, whether before or after conviction. (5) This section shall not prevent an officer from being dealt with under some other provision of this Act, but an officer shall not be punished under this Act twice in respect of the same . offence or matter. (6) Where an officer has been so dismissed (whether pefore or after the commencement of this sub-section) but the conviction has been subsequently quashed or he has received a pardon or the conviction has been otherwise nullified, or he has been released from prison as a result of an inquiry into the conviction, he may be re-appointed by the Board, whether or not he possessed the prescribed educaticnal qualifications, and, if the Board thinks fit, without probation, to the Service at the same classification as he had immediately before his dismissal. (7) A person so re-appointed shall be deemed to have continued in the Service as if he had not been dismissed and as if, during the period during which he ceased to perform the duties of his office he had been on leave of Lo absence without pay, and that period should be included as part of the officer's period of service." one /44 Seanad ae ERE et ae ra SE AWE RT RY A em ERE Pe Ee A EE Ae Reed Me anmet ae errno Oe teateie Saar as Pony 'Ay The prosecutor was charged with having committed criminal offences under the Commonwealth Crimes Act, punishable on indictment. Although the section does not, nor does any other provision of the Act, expressly provide that the suspension ceases if the officer is found not guilty or otherwise cleared of the charge, in my opinion the power of suspension must be so limited, Il 1s a power of temporary suspension pending the hearing and determination of the charge to which the section 1s directed. E speak, of course, of the power of suspension conferred by sub-section (1) of s. 62. If the officer is found guilty, the powers of the Board mentioned 1n sub-section (2) doubtless would include a power of suspension; but this 3s not a matter that arises in the present case. The attack of the prosecutor was founded essentially upon the ground that he was not given the opportunity of being heard in relation to this suspension. Certain other grounds were faintly argued; bul were disposed of in the course of discussion, so I need not refer to them. Again the Act is silent as to the matters to be taken into account by the "authorised officer" (in this case the Chief Officer) in considering the question of suspension of the officer concerned. There is a difference between this power of suspension and that conferred by s. 60 (4) in relation to s. 55, namely, that by force of sub-section (3) of s. 62 an officer who 1s supended under sub-section (1) has no entitlement to receive salary from the date upon which, or for the period during which, he ceased to perform his ae JN -45- duties, unless the Board otherwise directs. Thus, inherent in the power of suspension under s. 62 (1) 1s the inevitable consequence of deprivation of salary unless the Board otherwise directs. Doubtless this automatic consequence attaches to a suspension under s. 62 (1) because of the very circumstances in which the power of suspension arises namely, the charging of an officer with the commission of a criminal offence under the law of Australia or of a State or of a Territory punishable on isndictmenl or on summary conviction. Notwithstanding this difference between the power of suspension conferred by s. 60 (4) on the one hand and by s. 62 (1) on the other, in my opinion the audi altcram partem rule applies to neither power. The reasons which I have given in relation to the eari1cr suspension apply, 1n my opinion, substantially to this suspension, There is, however, one remaining question as to the second suspension namely, that the notice of suspension was not conveyed to the prosecutor until 9 June 1978. Apparently the non-payment of salary purported to operate from lhe date of suspension referred to in the rclevant notices, namely 19 May 1978. This raises the question whether the act of suspension is complete before notification thereof is given to the officer concerned. Can a man be dismissed from his employment when he has no knowledge of the dismissal? Normally no problem arises because the decision to dismiss is followed closely by notification thereof. 'The point 1s not without iumportatice because 11 was on 31 May 1978 that the prosecutor pleaded guilty to the charges before Mr. Dauner S.M. and was dealt with then by his Worship. I oe J KG ee ee a ee me ee ee eee eee - yor: -46= my opinion the power to suspend conferred by s. 62 (1) could not be exercised after 41 May 1978 as the power is to suspend pending the hearing and determination of the charge. In my opinion, notwithstanding that the prosecutor was not informed of the decision to suspend him until 9 June 1978, the act of suspension commenced to operate on 19 May 1978. For these reasons, in my opinion, the second suspension stands, carrying with it no right to salary during the period of suspension and for the period during which the prosecutor ceased to perform the duties of his office. I turn to the matter, which represented the principal challenge of the prosecutor in this case, namely, the decision of the Board to dismiss the prosecutor conveyed to him by letter dated 1 September 1978 and received by him on or about 5 September 1978. The decision to dismiss the prosecutor is attacked by him on a number of grounds. "Kirst, Mr. Higgins submitted that sub-section (2) of s. 62 of the Act could not be the source of the Board's power to dismiss the prosecutor from the public service because he was not "found guilty of "any" offence" within the meaning of that sub-section. He contended that the words "found guilty" were equivalent to the word "convicted." Section 19 B of the Commonwealth Crimes Act was invoked by Mr. Dainer S.M. It provides:- "19B, -- (1.) Where~- (a) a person is charged before a Court of Sunmary Jurisdiction with an offence against a law of the Commonwealth; and wee /AT7 soem 7 > 77 aS hetacaded (b) -47~ the Court is satisfied that the charge is proved but is of opinion, having regard to-- (i) the character, antecedents, age, health or mental condztion of the person; (ii) the extent, if any, to which the offence is of a trivialnature; or (iii) the extent, if any, to which the offence was committed under extenuating circumstances, that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishnent, or that it is expedient to release the person on probation, the Court may, without proceeding to conviction, by order << (c) dismiss the charge; or (d) dascharge the person upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period, not exceeding three years, as the Court thinks fit to order and will appear for conviction and sentence when called on at any time during that period. (2). If the Court before which an offender is bound by recognizance under this section is satisfied, by information on oath, that the offender has failed to observe a condition of his recognizance, the Court may issue a warrant for his arrest and, upon the person being apprehended and the Court being satisfied that he has failed to observe a condition of his recognizance, the Court may convict him of and sentence him for the offence with which he was originally charged as if he had not been released on recognizance. (3) The conviction of a person under the last preceding sub-section does not prevent any security given in connexion with the recognizance from being enforced.". It was contended, that the prosecutor was not "convicted" established, because the very words of s. 19 B say that where the court is satisfied that certain matters are it may, "without proceeding to conviction," do various things such as dismiss the charge or discharge the 20/48 -43- charge or discharge the person upon his giving security. Mr. Higgins sought to bridge the gap between tt the words "found guilty" and "convicted" by contcnding that the word "conviacled" is not unequivocal and that one of its meanings is a mere finding of guilty. He also relied on sub-section (6) of s. 62 and contended that it was intended to apply to every case to which sub-section (2) was dirccted and that by the very language of sub-section (6) atself this could be only where an officer was dismissed. It 1s true that the word "convicted" is not unequivocal. I shall not attempt an exhaustive definition of the word, Clearly it may mean a finding of gu1tlty: Ed. p. 376 see 4 Blackstone's Commentaries 4th./ Wharton's Law Lexicon (14th Edition); R. v. Blaby 1894 2 Q.B. 170; R. v. Vonks 1963 V. R. 121; Burgess v. Boetefeur 1844 7M. & G. 481 per Tindal C.J. at p. 504 or 135 E.R. 193 at p. 202; R. v. Majes (1890) 24 Q.B.D. 423. A second meaning of the word "convicted" is with reference to the document which records a convaction. A third meaning of the word includes not only the finding of guilt but also the sentence: sce Harris v. Cooke (1918) 88 L.J.K.B. 253 per Darling J. at p. 255. The various meanings that may attach to the word "convicted" or "conviction" are discussed by the High Court in 2/49 -49.. Cobiac v. Liddey (1969) 119 C.L.R. 257 and an Griffiths v. R. (1977) 137 C.L.R. 293. Sub-section (2) of s. 62 was amended in 1936 (Act No. 72 of 1936) by omitting therefrom the words that previously appeared namely "the officer 1s convicted of the offence by any Commonwealth or State Court" and inserting an their stead the words "upon the hearing of the ch-rge by any court, the officer is found guilty of the offence". Sub-sections (6)and (7) were inserted in the Act by Act No. 43 of 1945. It is clear enough that the learned magistrate in the present case exercised the powers conferred upon him by s. 19B of the Crimes Act and did not proceed to a conviction. He was satisfied that the charge was proved; but, having regard to the matlers falling within s. 19B (1) (b), he discharged the prosecutor upon certain terms. in my opinion his Worship "found" the prosccutor "guilty" of offences within the meaning of sub-section (2) of s. 62. The fact that the word "convicted" is not without equivocation, and may be, according to one of sts meanings, equivalent toa mere finding of guilt is not to the point. The history of s. 62, 1n particular the change of language introduced in sub-section (2) by the amending Act No. 72 of 1936, supports My conclusion that, before exercising the powers conferred by s. 19B, the learned magistrate found the prosecutor guilty of the offences with which he had been charged. The fact that sub-section (6) necessarily assumes that there has been a conviction does not in my opinion bear on the matter J] am called on to decide. Section 19B 158 a 2/50 inenpner + -50- provision empowering a court of summary jurisdiction, without proceeding to conviction, to conditionally release offenders or to dismiss the charge. Sub-section (6) as an ameliorating provision which has no work to do in the event of an exercise of power under s. 19B by the conditional release of an offender. If an offender is discharged, upon giving security that he will be of good behaviour for a defined period not exceeding ihree years, but nevertheless is called on during that time, and appears, for conviction and sentence, the provisions of sub-section (6) may then operate subsequent to the convictions; but there ts no need or room for Lhem to operate before hand. In the result the contentions based on s. 19B fail. The second ground advanced for attacking the Board's decision ito dismiss the prosecutor is that the prosecutor should have been afforded the right to appear, personally or by counsel or by solicitor before the Board for the purpose of making oral submissions or representations to the Board. It becomes necessary to consider whethor there 1s room for the application of the rules of natural justice to the exercise by the Board of ils disciplinary powers under sub-section (2) of s. 62. In my opinion one cannot find from the Act sufficient indications of any intention of Parliament to displace Lhe presumpiion that the rules of nalural justice apply to the powers vested in the Board under sub-scction (2) of s. 62. The Board's jurisdiction under sub-section (2) 22/51 [areas Saee -51- encompasses a large number and wide range of classificalions of members of the public service, a wide variety of criminal offences against the lew of Australia or of a Stave or of a Territory punishable on indictment or on summary convictton and large powers of the Board upon an officer being found guilty of an offence, including the power of dismissal. These are but some of the matiers which lead to the conclusion that the rules of natural justice apply: see Durayappah v._Fernando (1967) 2 A.C. 337 at p. 349 cited with approval by the full bench of the Federal Court in R, v. W2ison (supra) at p. 243. In my opinion the fact that the Act is silent as to how the Board is to exercise its powers under sub-section (2) and as to the rights of the officer charged does not mean that Parliament iuntended to exclude the rules of natural justice. True one finds provisions in the Act relating to proceedings on an inquiry or appeal under Division 6 of the Act: (see, for iumstance, ss. 57, 58, 60 and 61). The Board's powers under s. 62 (2) are not subyect to any appeal. The very absence of a right of appeal from the Board's decision under sub-section (2) and the far reaching nature and effect of the disciplinary powers of the Board supporl the conclusion that the courts will lean against any construction of the Act which would create manifest injustice as, in my opinion, would be the case if it were correct that the rules of natural gustice did not apply with respect to the Board's powers under sub-section (2). «/52 -52- Although the rules of natural justice, zncluding the audi alteram partem rule, apply, it does nol follow that the prosccutor was entitled to appear before the Board, whether personally or by counsel or solicitor. In my opinion 1t 1s for the Board itself to determine its own procedurcs when exercising its powers under s. 62 (2) provided in doing so it observes the basic requirements of natural justice. The Board 1s ebliged to deal with the matters that come beforcit without bias. It must act justly and employ just means in reaching a just conclusion, It must give to the parties the opportunity of adequately presenting their respective cases. It must act in good faith and listen fairly to bolh sides: see Local Government Board v. Arlidge 1915 A.C. 120 especially per Viscount Haldane L.C. at pp. 132, 133, and 134; Lord Shaw of Dunfermline at pp. 135, 136 aud 138; Lord Parmoore at p. 140 and 143. See also Jeffs. v. New Zealand Dairy Production and Marketing Roard 1967 2 ALG, 551. especially at pp. 566 and 567; R. v. The War Pensions Entitlement Appeal Tribunal & Anor (1933) 50 C.L.R. 228; Brettingham-Moore & Ors. v. Warden, Councillors and Mlectors of Municipality of 51. Leonards and Ors. (1969) 121 C.L.R. 509. In my opinion the prosecutor had a right to make representations to the board; but it was for the Board to determine whether this should be by written submissions or by oral representations by the prosecutor himself or by his legal ore paper eree e -53- representatives. In my opinion the Board observed the rules of fair play in the procedures adopted by 1t when dealing with the prosecutor, Although the written represontations made by the prosecutor in his letter of 14 June 1978 were in reply to a letter to him from the assistant sccretary of the department for the purpose of assisting the depariment in making appropriate recommendations as to any action that might be taken under s. 62 and to assist the Board in considering that recommendation, and were not in reply to a request to the prosecutor made from the Board itself, the prosecutor founded no argument on this point and, in my opinion, rightly so. It must not be forgotten that when the Board dealt with the prosecutor it had before 1t a plea of guilty by the prosecutor to the amended charges before Mr. Dainer S.M. It was not necessary for the Board itself to embark upon a hearing of the question whether the prosecutor had in fact committed the acls complained of in the relevant charges. A third ground advanced on behalf of the prosecutor altacking the Board's decision to dismiss him is that he should have been given the opportunity of seeing all the material that was placed before the Board, including the minute of the Chicf Officer to the Secretary of the Board of 20 July 1978, the minuie from Mrs. C. M. Goode and all other documents in the file. The authorities to which I have referred are -54- against this challenge. In my opinion there was no injustice to the prosecutor by the Board adopting the course it did. A fourth contention on behalf of the prosecutor was that the decision of the Board ought to be quashed on a separate ground, namely that the two members of the Board who made the decision to dismiss him had regard to matters to which they ought not to have had regard. The prosecutor relies primarily upon the contents of paragraphs 7., 9. and 10. of the report of Mrs. Goode. it was contended on his behalf thal paragraph 9. refcrs to matters not directly connected with the charges to which he pleaded guilty before Mr. Dainer S.M. and are full of hearsay, unreliable and prejudicial material. In their respective affidavits Mr. Taylor and Mr. Young each swore that he disregarded the matters mentioned in paragraph 9. as, in his opinion, the materail on the file did not provide sufficient evidence to substantiate them. Each gentleman was cross-examined and adhered to the view to which he had deposed. Having heard both witnesses T am satisfied that they are truthful and reliable. It is easy for people to rationalise evidence, such as the relevant evidence on this point, well after the event when the issues involved in litigation challenging their decisions are known to them and they have ample opportunity to reflect upon them. However, life 1s full of situations where one's jgudgmenl 1s exercised after taking into account various matters and disregarding others which, in all fairness, one must ignore. This is no prerogative of the bench. it 1s part of every day life. «2/55 -55- It was contended by Mr. Iliggins, assuming that I accepted Mr. Young and Mr. Taylor as witnesses of truth and reliability, which I do, that, although they disregarded the matters mentioned in paragraph 9 of Mrs. Goode's minule, nevertheless they would have considered them when they read paragraphs 7 and 10 because inferentially the matters contained in paragraph 9 are incorporated in those other two paragraphs. Iiven 1f paragraphs 7 and 10 did ancorporate anfercentially some of the matters mentioned in paragraph 9, which is open to serious question, I am satisfied that, as Mr. Young and "Yr. Taylor did ignore the matters mentioned 1n paragraph 9 in reaching their decision, they ignored them for all purposes relevant to their decision. Being satisfied about this 1t would be unreal to suggest that in some way, when considering paragraphs 7 and 10, they gave them some weight. In my opinion there 1s no substance in this contention of the prosecutor. Tt was contended by Mr. Purnell that s. 92 of the Act operates to bar the proceediangs. Section 92 providesi- "92, (1) Every appointment, promotion, transfer, retirement, or dismissal of an officer made by the Board, a Permanent Head or a Chief Officer, as the case may be, under this Act, shall for all purposes have the same force and effect as 1f made by the Governor-General. (2) Notice of every appointment, promotion, retirement, or dismissal of officers, and of all Orders in Council or proclamalions under this Act, shall be pubiished in the Gazettc. The contention was that even 1f the dismissal of the prosecutor was olherwise invalid, s, 92 operaled to save it from invalidity. . MAA ahaa net nal ARI SO TE RR Se ea RA Tee nat tem rat wT UY TAO le on PN oe en ce nM mn Read ee mL NLL og nee SOM Boek ur nkrnenitl ArwnandeY sn aieecuniAd annie Saint eon ete nee san te ben ALT mo aN Nk A nd A in ches nna -56- In my opinion this contention 1s unsound. The section operates to give the same force and effect to the dismissal of an officer of the public service by the Board as if it had been a dismissal by the Governor-General. That is all it does. Jt does not introduce a qualitative change to the act of dismissal. If a dismissal is in truth contrary to law, the section does nothing Lo validate it. If I had reached the conclusion that the dismissal of the prosecutor was invalid, which I have not, s. 92 would not have operated to validate that dismissal. Mr, Purnell contended that s. 11 (9) of the Act barred Lhe prosecutor from pursuing his claim against the respondents, Robert William Cole, John Casey Taylor and Robert John Young, being members of the Board. Sub-section (9) provides;:- "11. (9) No action or suit shall be brought or mazntained againsl any person who is or has been a member of the Board, for any non- feasance or misfeasance in commexion with his duties, nor shall any action or suit lie, nor any costs be payable, in respect of any proceeding before the Board or a member thereof." In my opinion the contention 1s erroneous, Sub- section (9) operates merely to protect the members of the Board from personal action and to grant them immunity accordingly. It has nothing to say as to the validity of the decisions of the Board, nor does it operate to prevent proceedings [rom being instituted to reverse or vary the decisions of the Board. There 1s no room for the operation of sub-secitton (9) with respect to lhe proceedings before me. In the result, the rule should be made absolute as to the deczsion of the Board that the prosecutor shall 266/57 -57- not receive salary during the period of his first suspension (a.e. from 14 March 1978 until 19 May 1978). Otherwise the rules nisi should be discharged. I declare that the prosecutor is entitled to be paid salary from 14 March 1978 until 19 May 1978 as an officer of the public service being an Overseer (Printing) Grade 2, Government Printing Office, Canberra. Otherwise I dismiss the originating summons dated 7 June 1979. As to costs, although the prosecutor has substantially lost the proceedings, a lot of time was devoted in the early stages of the hearing to argument on the question whether Mr. Taylor and Mr. Young were liable to be cross-examined on ther affidavits because of the nature of the proceedings then being solcly by way of certiorari. I found in favour of the prosecutor on this argument. Jn the result, in my opinion the proper order for costs is that the prosecutor pay one half of the casts of the respondents of all the proceedings before me, Accordingly I order the prosecutor to pay one half of the costs of the respondents of all the proceedings. Mir. ducioo Lee! fear, SOPRA egrets See peer etet tne erent tit emer ne terete ere ent ot enn er aren amr ere ar S elidbicieddein-sncthd.tattol sath renal I renee oe wv tat? eared - » presee 44 Pitts a-- Para . , Neacsrs f2- vee Liles: . | : cnou JUDGMENT NO. ceccssssorees Sy, al CATCHWORDS Criminal law - Appeal by the Crown against adequacy of sentence ~ Principles upon which appellate court will intervene to alter trial judge's sentence - Considerations relevant to the imposition of sentence. Procedure at trial - Irregularity - Plea of guilty to two counts — Re-arraignment on first count after trial had commenced - Change of plea on farst count to guilty - Leave to enter nolle prosequi on second count - Whether accused in the charge of the jury - Oral leave to arraign ae on substituted second count - Appropriateness or otherwise of filing a nolle prosequi in relation to the original second count ~ Whether authority to decline to prosecute available. R,. v. HALL NO. NTG 11 of 1979 "Odem ToOre™ , 23 urs GA ' , us "oR rare ¢ LOULaReT 3 A IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISIRY ) No. NEG 11 of 1979 GENERAL DIVISION ON APPFAL FROM THE SUPREME COURT CF THE NORTHERN [PRRTLORY OF ANSPRsbla BETWEEN: THE QUEEN Appellant AND: PHILLTP GRAHAM _ILALL Respondent CORAM: TOOHEY, GALLOP & LOCKIIART JJ. REASONS FOR JUDGNENT GALLOP J. : This 1S an appeal by the Crown against the sentence impesed in the Supreme Court of the Northern Territory by Muirhead J. on 20 April 1979. The respondent sas arraigned on an indictment presented in the name cf Graham Richrre Nichelson, a person appointed by the Attorney-Genefal pirsuant to s.13 of the Criminal Law anc Procedure tct and contarning —— two ccunts: "Count 1 Unlawfully and maliciously setting fire to a buildang: contrary to section $8¢ of the Crimincl Law Consolidation Act and Ordinance. PARTICULARS Phillip Graham Hall eid on the 20th day of 'November 1975, an LambellL Terrace Derwin in tne horthern lerritory of Australia. unla.falls and maliciously set fire to a building, namely the Red Cross Society Clothing Store. Count 2 Unlawfully and maliciously setting fire to a building used by or for a department of government: contrary to section 35 of the Criminal Law Consolidation Act and Ordinance. PARTICULARS Phillip Graham Hall on the 20th day of November 1978 in Lambell Terrace, Darwin, in the Northern Territory of Australia unlawfully and maliciously set fire to the Day Centre of Darwin Hospital, being a building used by or for a department of government, namely the Health Department." The accused pleaded not guilty to both counts. After the trial had proceeded for two days the Crown applied to have the accused re-arraigned on the first count, indicating that if he pleaded guilty to the first count, that is if he changed his plea from one of not miuilty to guilty, the Crown world then seek leave to enter a nolle prosequi on the second count in the indictment in its original form. His Honour then raised the cuestion whether there sheuld be a verdict of the jury on the second connt The Crown Prosecutor unformed his Honour that the accused was not in the charge of the jury on that count at that juncture. His Honour eccededc to this statement, which, it is no.,conceded, was incorrect. The accused was indeed in the charge of the jury on the second count. The accused vas then re-arraigned on the first count, pleaded guilty to it and the Crown applied te adc a fresh count to the indictment, indicating that it .onld enter a nolle prosecqui in rclation to the second count in the indictment in its original form. His Honour accepted an under- taking from the Crown that this would be done and thereupon the Crown applied te substitute another count for the sceond cr int, namely a charge of unlawful and malicious damage in the nigh. , particulars whereof were that the accused, did on the 20th November 1973 at Lambell Terrace, Darwin, unlawfully and maliciously comm1zt damage in the night to real and persenal property), namely the Day Centre of Darwin Hospital and chatt« therein, such damage amounting to $100.00. Counsel for the accused censented to-that amendment. The accused »as then arraigned on the substituted second count (as it was called} and pleaded guilty to that count. The result of this orccede was that the accused had pleaded giilty to the original faire eeunl on the indictment and to a further count edded kt the leave ef the trial dyudge cn the third dav of the trial. he, learned trial judge then directed the gury te cuter a verdes > oF gualts in relation the first count and the secenc cc int hed tcea edded Ey leave. I metre sere comments lrter wut propriety cf this procedure, bret the fallenainc J Groine on the hearing of the appeal before «s: (1) The Crown gave an undertaking te file a nollée prosectil in respect cf the ecrisina second count un the indict:ent. (2) The nolle prasceuz was in Fact filed in the ame cf Graham naichare Nichelse:. vhe heed presented the original incictmcenc, al it is noted that the nalle proses: a was net Signec by the saic Graham Kic Nicholson or anyone else. (3) The applicstion to amend the andictncent sc as te add tne count of malicious carrae tu property 1on the night vas made orall;. (4) fhe learned prosecutor who made tnat applicaiimn. to add the count was not a person arncintec the Attorney-General toa piasecite o1 anaicirect nursiant te tho provisions cf s.13 af the Crinminot Lav anc Prececire ict. on un see The waele procedure vefore the tri. 1 take. vith the ccnsent ef the res cue a a > ? In the course of the hearing of this appeal certain matters were raised by the Court relating to the apfropriatecness or otheruise of filing a nolle prosequi in relation to the original second count, the fact that it was aprarently filed by a person holding an appointment from the Attorney-General under s.13 of the Criminal Law and Procedure Act to prosecute by indictment but no authority to decline to prosecute, the Fact that the application to add the count of malicious damage to property in the night was made orally and never reduced te writing (except by his Honour) so that 1t was not apparent on its face that that count was presented by a person authorised in that behalf, and was in fact made by a persoa vho vas not authorised by the Attorney-General to prosecute by indictment pursnant to an apvointnient under s.13. These matters having been raised, it was cenceced kv the appellant that the orceceduire whereby the criginal second count was disposed of was irregular in the cireunmstances. It was conceded that the aonre>riate ceirse, having regard to the fact that the accusec was then in the charge of the jury on the second count as well as the firse count, was to direct the jury to enter a verdict of not guilt" in relation to that count.- It is a matter of no little cencern that the Croun suggested a course to the learned trial judge which was wholly unapprooriate in all the cirenumstances. The irregularity was exacerbated hy the fact that when the nolle proseaui twas filed apparently 1t 1.as filed bj) the same person who had presented the original indictment and it was argued on behalf of the Crown that this was a prorer course because of the provision of s.43 of the Interpretation Act. This section reads: "43, Where an Act confers a poner to take an action or to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in a like manner and subject to the like conditions to repeal, rescind, revoke, amend or vary any such action or instrument." On the hearing of this appeal the Crown's argument was that a person sho had been authorised by the Attorney-General to prasecute by indictment in his own name could pursuant to s.43 of the Internretation Act repeal, rescind, revoke, amend or vary any indictment so presentcd. In my vieu this argument 2s fallacious. Certainly s.43 of the Interpretation Act would operate so as to invest in the Attorney-General the pener to repeal, rescind, revoke, amead or vary any appointment of a person to prosecute by indictment in his own name, but that is not to say that an appointment under s.13 vould anvest in the appointee a poner to enter a nolle proseaui in nroceediags 'heic that persona hac already prosecutea by undictment in his own mame. Apart from ordinary construction of s.43 and che nature of a nolle proseecui the reasen for this is cleer. Jt if avery Significant matter for the Croia to decline to proceed further in circuristances where the ordinary precedure cf committal for trial before a court of summary jurisdictio.: and che finding of a bill of indictment have taken place. Ft 1s not sauror.sing and accords with sound cxeccutive government that the Attorney— General tonid vish to preserve to himself tne pover to make the ultamate and important decision of declining to nrosecute further where these administrative acts have been completed rs) ad part of the ordinary preliminarics to a prascention of 22 to sy ' o = iS indictable offence (see Archbold 39th ed., para. 142: wed » Para. 10CG° aud Purnell, Craminal Lev tn New Soith Lates Rw v. Beverireze yiyoe) 20 W.N. 152). In my view, therefore, the nolle prosequi, if for no other reason, was ineffective in this case. Even if the document filed had been in proper form and presented by a person who had authority to file a nolle proscqui, I thank that it should have been seen on its face to have been execented by such a person and not be an unsigned document. For the present purposes, however, nothing further turns upon this series of irregnlarities. I consider it 1umportant to point out that the procedures adopted in this case were irregular and should be avoided in the future. The next matter to .hich attention should be directed 1s that the procedure whereby another charge was preferred against the accused was irregular. The application to add the count was cn oral application made, as I said earlier, by a Crown Prosecutor who was not a persona appointed by the Attorney— of the Craminz] Lar and Procedure Act. Car General pursuant te s.1 It as plain from tne terms of the Indictrents Act s.7 tnat an undictmerat should indicatc the name of the persou by wnon Lt is presentea and the aithority of that person to present it. Prior to the Indictrents Act 19€2 there nas no legislation regulating the presentation of indictments or their foim 11 the Northern Territorv: consequently indictments were fornerly presented in comton law language and form. Tne Inaictments Act 19C$ provides for the manner of presentation of indictrents far the prosecution of criminal offences in the \Northern Territorv and makes 1t plain tnat indictments should charge the zepprenriate offences in zuntelligible and plain Lan-nage, On the hearing of thas appeal the Crown sorght to rely . upon 8.1% of the Incietments *ct as authurity fou the war ar which this indictment was amended, 21£ that is the proper term, by the additaon of another count of an offence of a different nature. Section 18 of the Tndictments Act reads: "18, (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment 1s defective, the court shall make such order for the amendment of the undictment as the court thinks necessary to meet the circumstances of the casc, unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and may make sicn order as to the payment of any costs incurred owing to the necessity for amendment as the court thinks fit. . (2) Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connexion therewith as having been presented in the amended form." This provision is no justification for the ccurse which was adopted at the trial. This indictment wes not defective, Te may well be that the evidence led by the Crown was insufficient tc support a conviction on the second count in its original form. But that is not the same thing as saying thav the indictment 'as defective. The purpose of s.1% 1s to ocermit amendment of an indictment so as to meet the circumstances of the case provided this can be done without ingustiee to the accused. I reject the Crown's arguments in so far as they are based upon s.18,. 1t was further contended by the Crown that the urregularities referred to are of no accourt because the accused consented to the course adopted by the Croin. The Crown has a duty to the Court to assist it in the task of conducting a criminal trial, uwncluding the arrazrgnment of the accused. chic recording of hig pleas and the presentatton of anv eviaenee in accordance with proper rules of criminal procedire. The Crown should be meticulous to ensure that stractly appropriate criminal procedures are adopted. For the Croun to rely upon the consent of the accused as an absolution for its failure to assist the court in important matters of procedure 1s a dereliction of 1ts all important duty to the court. The Crown is under a duty to assist the court to avoid any departures from proper criminal procedure, especially 1f those departures might result, as they did in this case, in a plea of guilty to a charge improperly presented and a sentence being imposed pon an accused person on sich improperli presented charge. There nould be few cases indeed where an appellate ceurt would intervene on an apneal by the Crown against sentecnce to correct au allecec sentencing error by increasing the sentence ii the Crown had not done what was reasonably required to assist the sentencing judge to avoid errors in procedure. What T have said already 1s sufficient te indicate that if an applicatics was made to quash the conviction and sentence on the substutnvod count of malicious damage to pronerty in the night under 5,124 of the Criminal Lav £ Consolidaticn ict, I nonld be disnoesed ta quasi: the convaction and sentence. Xo such application has been made at the present time but the Crown should itself apply for such an order. The poners of this Court under s.23(1) cf the Federal Court cf snstralia Act are sufficient authority for this course. On the first count the respondent tas sentenced to iumprisonment for four years and ten calendar mon.hs with hare labour and the sentencing gudee specafied 2 period of tuo seers during which the respondent would not kecome eligubte for purole In relation to the second count the respondent was sentenced to two years imprisonment with hard labour and the sentencing judge specified a period of one year during which the respondent would not become eligible for parole. The learned judge ordered that both sentences be served concurrently and further ordered, pursuant to the Criminal Law (Conditional Release of Offenders) Act, that the respondent berelcased after serving part of his sentence, namely on 2 July 1979, on his entering into a recognizance in the sum of $500,00 (1) to be cf good behaviour for a period of 3 years, (2) upon release to report forthwith to the probation office and subriit himself to the supervision of a probation officer and subject himself to such medical treatment es mav be required, (7?) to par by wav of restatution fo} the snm of $3900.00 in part payments ag shown herennder: (i) 2300.00 by 20 BDecaiber 1979: (ii) <21C00.0C bs 20 December 1980: (xii) $1500.00 by 206 December 1921: (iv) $1006.00 by 30 June 1982, It has been contended on this appeal thar the sentenciny judge improperly exercisee his discretion, acted upon trergs principles and failec to take into account rclevane consiceratic. the result cf which was that he wes wrong in ordering the suspension of the cperation of the head sentences and nen-pcrole periods, and that the heac sentences and non-parele periods were in themselves 1nadequate in all the circumstances. Th: Crown contended that the sentencing jucge should Lave imposed a substantial head sentence on each count and should have foune that an all the c1ricumstancecs tne duty to specify a non-verole period recurred ky s.d(1)} of the Parole cf Prisoners Act bus ——— —_——- 10, did not apply because of the nature of the offences and the antecedents of the offender. Section 4(3) of the Act provides that the duty does not apply "if the court considers that the nature of the offence or offences and the antecedents of the offender do not warrant the specifying of the lesser term of imprisonment", In The Queen ¥. Ta t & Bartley (unreported decision of this Court delivered on 1 May 1979) the Court set out the principles governing the review of the sentencing discretion by an appellate court, particularly in a case of an appeal vs the Crown on the ground that the sentence is inadeauate. It 1s not necessery to repeat what nas set out in that gidgment: it us sufficient to ckserve that this Court will enlv interfere if it be shown that. the sentencing judge was in error in acting on £9 a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error mer appear in what the gudze said in the rroceedings or the sentence itself may be se excessive or inadecuate as to manifest such error. As stated in that case, the relevant piovasions of the Fedorel Court cf Anstralie Act do not provide an) basis for distin- mnishing between the general principles to te anolacd 4) the Court on a Croin appeal against sentence ane the principles to be applied on an appeal egainst sentence bi a convicted person. The facts giving rise to the counts against the respondent all tock place on 20 November 1978. At that time he was residing at 1 Lambell Terrace hich 18 opposite the Darvin e HNospital. He had been liavang there for about tue menthe. Premzses tun by the Red Cross, known as the hee Cross. Cpnorumity 11. Shop, are also in the same street. During the sia or seven months prior to 20 November the respondent had done some voluntary work for the Red Cross. On Sunday 19 November 1978 the respondent, one Fandlay, and another person arranged to dine at a restaurant in Darwin. They arrived at the restaurant at 6.30 p.m. and the observation then made of them, including of the respondent, was that they were not intoxicated. They had some mixed drinks and then four bottles of wane with dinner, The respondent and Findlay left the restaurant between 12.15 a.m and 12.45 a.m. and the respondent's condition nas then described as being "a bit intoxicated" or "three narts drunk", The respondent vas draven home te 1 Lambell Terrace and YPindlay went to bed. The premises vere onned bs the pronrietoress of the restaurant and she cane home abeut half an hour later. The respondent and the nranrietoress then hac tro bettles of beer, The proprictoress went to bed at about 3 asm. by wnich time the respondent was fairly ¢erunk. When she went to bed there were four or five bottles ef Crown Lager beer still to be consumed: when she got vip tae next morning she found that they hac indeed been consumed. At about 3.35 a.m. on the mornings of 2C Noventer Lo 1978 the ecnutrol rvor of the Northern Territers, Fite Brigade received a message that there was a fire in Schulz Street, which is close te Lambvcll Terrace, a fire tender was miiclly despatched aid on arrival the fire brigade found the opportunity shop on fire. It took about ten minutes to bring the fire inder control. It was deduced that the fire had cemmenced in the bedroom in those premises, but there was no~one in residence. Clectrical fault as a canse of the fare was rulee cut but, although threc "hot spots" which apparently arc the isniticn In my vieu, therefore, the nolle prosequi, if for no other reason, was ineffective an this case. Even if the document filed had been in proper form and presented by a person who had authority to file a nolle proseqni, I think that it should have been seen on its face to have been executed by such a person and not be an unsigned document. For the present purposes, however, nothing further turns upon this serzes of irremgilarities. I consider it 1mporvant to point out that the procedures adopted in this case were irregular and should be avoided in the future. The next matter to \hich attention should be directed 1s that the procedure whereby another charge was preferred against the accused .as arregular. The application te ada the count was an orel application made, as I said earlier, by a Crown Prosecutor who was not a persoa appointed by the Attorner- General pursuant te s.13 of the Criminze] Lev and Procedure \ct. It is plain from tne terms of the Indactrents Act 8.7 tnat a. te indictmert should indicatc the name of the persouw by wnen Lb is presented and the authority of that person to present 1t. Prior to the Indictnents Act 19€8 there nas no legislation regulating the presentation of indictments or thei» farm in the Northern Territory: consequentl, indictments were formerly presented in commen law Language and form. Tne Indictmerrs act 19€S provides for the manner of presentation of indictrents for the prosecution of criminal offences in the Northern Territory and makes it plain tnat undictments should charge the cpprenriave offences in untelligible and plain lan nage. On the hearing of this appeal the Crown sosrghte to re ls upon s.1S of the Indictments '4.ct as authority for the war ar which this indictment was amended, if that is the proper term, by the addition of another count of an offence of a different nature. Section 18 of the Indictments Act reads: "18, (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the casc, unless, having regard to the merits of the case, the required amendments cannot be made without aonjgustice, and may make such order as to the payment of any costs incurred oning to the necessity for amendment as the court thanks fit. . (2) Where an indictment is so amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment shall be treated for the purposes of the trial and for the purposes of ail procecdinss in connexion thereyith as having been presented in the amended form." This provision 1s no justification for the ccurse which was adoptee at the trial. This indictment was not defective. Tt may well be that the evidence led by the Croun was insufficient te support a conviction on the second count in 2¢s original form. But that is not the same thing as saying that the indictment 1as defective. The purpose of s,1% 1s to permit amendment of an indictment so as to meet the circumstances of the case pravided this can be done without ingustsee to the accused. I reject the Crown's arguments in so far as they are based upon s.1&. It was furtner contended by the Crown that the zrregnlarities referred to are of no account because the accused consented to the course adopted by the Croun. The Crown nos a duty to the Court to assist it 1n the task of coneycting La) criminal trial, aneluding the arraignment of the aceusec, une recording of hie pleas and the presentation. of ans cevacence 12. points of a fire were identified, the fire brigade officers were unable to pinpoint the cause of the fire. At 4.11 a.m. on the same day another message was received, of a fire at the Day Centre in the Darwin Hospital. This 1s a centre for psychiatric treatment. Again a fire tender was despatched and it was found that there was a fire in a small storage room in the Day Centre. The storage room contained such highly inflammable articles as toilet and paper rolls. Betucen 4.43 a.m. and 7.03 a.m. the police station at Darwin head- quarters received four telephone calls from a person claiming to have lit the tio fares. These calls were taped end transcripts of the tapes were produced in evidence. The calls yere made by the respondent. hile he vas maling the last telephone call the pclice arrived at 1 Lar.bell Terrace, the telephone calls having been traced to that adaress. Ihe police were admitted, anarehended the respendent and he was taken to the police station. At abovt & a.m. at the police station the respondent was questioned bx Det. Const. Bainbridge. Wnen asked about his movements the previous night the resnondent tceld Det. Const. Bainbridge tha he had been vo the restatrant withelor (Pinclar)} and Melissa (the preorictoress of the restavrant). He said that he hed been there until aist after midnight anc. having been driven homc,uhnen Melassa arrived he spoke to her for wboeut an hour and then :ensu to bed. he said he had gone to the restaurant av abort half past six and dic not leave the heise after he had got home. Ue claimed to have slent until seven in the morning. He denzrec that he hac rade anv phene calls Curing the morning anc said that he was aclecp. Ile Cceurace curv = a t 13. knowledge of the fires at the Red Cross Centre and the Day Centre. He then sought legal advice and_having obtained it declined to answer any further questions. Damage by fire to the Red Cross Opportunaty Shop was considerable. Damage to the Day Centre was restricted to the contents rather than structural damage. It was contended on the appeal that the fires lit by the accused were of the gravest character, because of the nature of the buildingsthemselves and their contents. The Crown contended that it would be appropriate to take acccunt of the possibility of danger to life and property. In particular the Crown ccntended that the second fare in the Day Centre vas in an integral part of the hosnital at a time when the premises were virtnall; deserted. makang it more probable that a fare would be cuite out of control before anybody became aware of its ex1stence. These facts were nat cisputed by the respondent either on his trial or on apnreal. The facts, of course, had already been provec in evidence when the conduct cf the trial changed as indicatec earlzer,. There was really only one matter which was asserted by the Croin anc not accepted by the resncndent on the aoveal, namely th:c the lighting of the fires was a potential danger tc 11fe. I am of the view that the trial judge was ccrrect ain fineing thar tne respondent's condict amounted to a danger to the Lives of peonle. When the course of the trial changed. the Creuwn furnished material te the sencencing gudge by way of statements fro~ the bar table. Included was the fact that the respondent had Leen released fren prison in western Australzra en & April 1975 having been sentenced in Jamiarv 197¢, meaning thet he hac 14. served a period of two years and three months. Later, an antecedents report was furnished stating that the accused had been released on 3 April 1978 after serving two years, five months of a three year sentence. When Mr. Livingstone, psjchologist, gave evidence on behalf of the respondent he referred to the respondent having been very aware that he had been in gaol for two years, seven months and thirteen dars. <A pre-sentence report recuested by the sentencing judge stated that the respondent had been conysicted on two counts of arson on 13 January 1976 and sentenced to three 1ears imprisonment on each, to be served concurrertiy. He vas imprisoned at the Fremantle Gaol and then treasferrec to the Wooloorecoe Training Centre. The seitencins gudge on that occasion had declined te snecifr sa non-sarole period. The precise partic:ia:ss of this previous cunviction or convictions were not furnisned to the sentencing judge by tne Creu at the trial. In this respect also IT an of t.e vier that the Crown failed properly te deischarge ste funcenental caty to give the court frill asszstance. Frio. ceorxictions of the acersed were a very material consideration fer the exercise cf the sentencing discretion. . As events turnec ont the respondent acmittec tho previews convictiens anc sentences in respect of offeices apparcntl: cermitted in Avgrst 1975, anc altheugh his ceunsel indicated that al an evorepriate stage he woulce fernash to the sente.cinay gudge the re.arks passed by the lest Australian gudse when sentencing the accused on the prior cceeésicen, sven remarks wore never furaisned vs the sentencing gudse, anc desnite 1cfercenece " 15. being made to this apparent oversight at the trial they were never furnished to this Court at the hearing of the appeal. The consequences are that this Court is in a similar position of not having very precise particulars of the previous convictions. This is a very unsatisfactory situation, where the Crown appeals te this Court against the inadecuacy of sentence. The Crown has a dut; to this Court also to see that it is fully anformed on ali relevant matters, and it is so obvious as ta be unnecessary te state that prior coavictions fer offences of a similar nature are extremely important on the avestion of penalt, in this appeal. 'The common facts vhicl emerged un vericus vays before tne Jearnec sentencing yndze tere that early in Janverr 1970 in the Suprene Court of Western Australia in Perti: the resrenaen nas cenvicted and sentenced te three reais innrisconnont an tic counts ef arson. The sentencing gudge accertce these facts othemuse on the hearascc i) a ou QC iyLs] fe] ion ied s co = eyte] oO ct fe]5 ¢ co)fon fy fay it. of evidence fal of tiais arpoal. I repeat that there was a nan The rere recital of the fects of tne effencoe nev uncer revie: and whe resnendent's antecedents tarrant ccnasidoration cf substantial reel seateaces for cach cffcacc. [ho wanimic a fey " Tor the effercee of arson as chargea in t rurst pi serile sears: the manximin penalte mirescribec Foi count 1s forrtce. the subsbitvted sweond count is Five reers. Gn behalf of the resreadent it .as esntencec at the track thet he hae an mber of reeogniseble Gces-scatec mirchlcout ard thut it would not Lo an hie Lbcst intercses ts ves 16, sentenced to a tcrm of imprisonment. A considerable bod of psychiatric and psychological material was placed before the sentencing judge in this respect. There nas also some evidence of general good character. Before the sentencing judge the respondent also offered to make restitution of the sum of $3800.00 at the rate of $25.00 per neck, provaded that he nas at liberty, not in custody, and able to gain satisfactory employment. Hie indicated, through his counsel, that 1f the trial judge vas disnosed to order his condaticnal release, repayment of the crst of the damage could be a conditicn of the release stbiect te his ability to pay. The cost cf the damece as asserted bs the resnondent's counsel .as net acceptec bs the Crown. The evidence available to the Cro'n ves that a loss assesscr hac assessed the damaze at 320, 33° This wes ie) an estimate cf the ccst of repairs kefere any rerairs were uncertexen. The sentencing judge made ne finding cf Fact a the cest of rerairs though 21t seems imsalicit the sentences imnocsec and in parcacular the terss of the conditicnal release of the respondent, that he accented the figure of .320C.00 asserted by the respondent. In mr vie. the evicence wes tee flinsv on this matter and it was surcl, a relevant censideration for the trial gudge. The Croin should have been in c pesition and should hee dischzrged its dutr to anform the eccurt cither by evidence or facts accestcd b: the accused persou of the cost of the dcamuge to the ked Cross premises referred te in the first count. I cannot over- emphasise the high duts eon the Croun in criminal cascs to render the uttosi assistince to a sentencing qidze in his administration of the criminal la. 17. In endeavouring to strike a balance between the various considerations which a sentencing judge must take into account, his Honour gave considerable weight to the respondent's prospects of rehabilitation. He said that the only true solution lay in the provision of an opportnnity to the respondent of making a useful 'life for himself. For these reasons he imposed sentences which can only be described as extremely merciful. The Crown has contended that the degree of leniency inherent in the sentences renders them inadequate and inappropriate, having regard to the gravity of the offences. In my view the reformative aspect has been given too mich weight and is disproportionate to the circumstances of the offences and the respondent's antccedents. Nor are the prospects of rehabilitation supported by the psychological and psychietric evidence. The respondent presented as a person with recognisable personality disorders, but ecuallv he does not appear to have learned any Lesson from his convictions and sentences in Western Australia in January 197¢. One is left nith the general inpression that, given the conb- ination of alcholic influcnce and resentment at his fellow human beings,the respondent is auite likely to offend again in a similar way. He has never expressed any contriticn for what he did, When speaking to the police officcr in one of the taped telephone conversations he maintained that he was not at all sorry for what he had done. There was nothing in the psychological and psychiatric evidence called on his behalf which indicated any remorse or contrition for his cendnuct despite very extensive counselling since his release frem prison in Anril 1978 and subsegrent to his arrest on the present charges. 18. The result of the sentences imposed was not to provide condign punishment, nor to reflect the general moral sense of the community (Channon v. R. (1978) 20 A.L.R. 1). In my view the sentencing discretion has miscarried and this Court should intervene. As this Court said in The Queen v. Prindable (unreported decision, delivered in Brisbane on 9 March 1979) the review by an appellate court of a sentencing judge's discretion to suspend sentences involves the sane principles as a review of the judicial discretion to impose the head sentence itself (The Queen v. Shueard (1972) 4 S.A.S.R. 32€ at 43) and if the sentence as a whole is scen to be so dis- proportionate to the sentence which the circumstances reanire es to indjcate an error of principle, the annelicate courv should intervene. There were tio separate invasicens of prenertr eemiitted en the sane night. QOne matter to be considered 1s whetne:r the sentencing jyuczre nas correct in orcering thet the se. tences te served conerrrentls, vnarticularly as they were cute cistsuct sentences. Thev were conmitted on the seme aight in the sarw locality and when the resnendent was since: the influence of intexicating licuor. I think the sentencing yicleemist have taken these matters into accoint in o1cering th-t tne sentences. be served concurrent'; and that he yas not in error in ceinc so. For the reasons indicated, however, I do not think thet this Court should make any order in respect cf the sentence on the substituted second count. In relation te the first ecvint, one is required to consider what sentenee tould represent the appropriate, duly proportionate and vronerly Lalanced sentence (pe: Smithers J. in Ardersen v. BR. (1977) 10 ALLIR. 212 at 221). 19, In my view the head sentence on the first count was unappealable and should stand. In order to provide an appropriate, duly proportionate and properly balanced sentence I think it is appropriate to specify a period of tio years. Six months during which the respondent will not be cligible for parole. TI do not think that tne sentencing judge shenia have suspencec the oneration of anv portien ef the resvenerntte sentence, Tn the reselt Io vould alien the apreal end erCer that dh evbstrtveion for the sentence impescd on the farsi cecal Tuc Tespanden, Pe aritrisened for c pericd of four yerrs ancl ten mostnus and Ll would specify a period ef tue years. tian meatkhs during which he will net be eliq ble for paraiea. I certify that this and the eighteen preceeding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Gallop. Associate. 27 June 1979 IN THE FEDERAL COURT OF AUSTRALTA ) ) NORTHERN 'TERRITORY DISTRICT REGISTRY No. NTG 11 of 1979 GENERAL DTVUSION ON _ APPEAL FROM THE SUPREME COURT OF THE NORTHERN GCRRITORY Ul AVeTRALIA BETWEEN: THE QUEEN Appellant AND: PHILLIP GRAHAM ALL Respondent CORAM: TOOHEY. GALLOP & LOCKHART JJ. Thursdav 28 June 1979 REASONS FOR JUDGMENT LOCKHART J. This 1s an appeal against sentence imposed by the Supreme Court of the Northern Territory following the conviction of the respondent on two charges: first, that he unlawfully and maliciously set fire to a building contrary to s. 86 of the Criminal Law Consolidation Act and Ordinance and secondly that he committed unlawful and malicious damage in the night contrary to s. 129 thereof. On 20 April 1979 the learned sentencing judge sentenced the respondent on the first charge to four years and ten months' imprisonment, with a non-parole period of two years, ard on the second charge to two years' 1.2/2 imprisonment with a non-parole period of one year and ordered that the sentences be served concurrenlly. He further ordered that the respondent be released from custody on 2 July 1979 on the following condit ions:- 1. That he enter into a bond in his own recognizance in the sum of $500.00 to be of good behaviour for a period of three years; 2. That he place himself under the supervision of a probation officer during the said period of three years and obey the directions of the said probation officer as to employment and place of living and that he report to the said probation officer on 2 July 1979 and obey his directions as to further reporting and that he subject himself to such medical psychiatric or psychological treatment as may from time to time be directed by his said probation officer and those from time to time in charge of his treatment; and 3. That he pay by way of restitution, the sum of $3,800.00 by instalments as follows:- (2) $300.00 by 20 December 1979: (ir) $1,000.00 by 20 December 1980; (ii1) 41,500.00 by 20 December 1981; and (iv) $1,000.00 by 30 June 1982. The Crown appeals against this sentence, submitting that the sentence is so inadequate as to manzfest an error in pranciple on the part of the learned sentencing judge. It is not submitted that any error appears on the face of his Honour's remarks; but it 1s said that the sentence imposed falls so far short of the range of sentences which would be dictated by the exercise of sound judicial discretion that this court should intervene and impose a sentence which 15 02/3 appropriate in the caircumstarnececs, The respondent lived at No. 1 Lambell Terrace Darwin close to the Darvin Hospital and the Red Cross Centre. The house was owned by a Miss Fleper. She occupied the house together wiih the respondent and a Mr. T. J. Fandlay. Each person occupzed a separate bedroom and shared facilities in common. The respondent had been living at those premises for about two weeks before the events of 20 November 1978. For about six or seven months before then, he had been working on a voluntary basis with the Red Cross doing gobs such as Meals On Wheels. On 17 November 1978, three days before the respondent set the fires which led to his conviction, he telephoned the Red Cross Centre and enquired whether he could purchase some vases from the Red Cross Opportunity Shop which formed part of the Centre. He enquired as to what type of items were kept in the shop and was told that there was clothing, kitchenware, bedding and mattresses. On Sunday 19 November 1978 the respondent and Mr. Findlay together with one other person arranged to dine at a restaurant in Darwin called "Melissa's Restaurant" which was owned by the same lady who owned No. 1 Lambell Terrace, Darwin namely Miss Fleper. The respondent arrived at Melissa's Restaurant at about 6.30 p.m. and was goined by his two dinner companions about an hour later. He was not intoxicated when he arrived at the restaurant, but during the course of the evening the three people consumed a few drinks «ee /4 before dinner, four bottles of wine with dinner and possibly some beer also. The three people left the restaurant somewhere between 12.15 and 12.45 a.m. the respondent being somewhat intoxicated. He was driven back to his home by Mr. Findlay who went to bed about five minutes later. Miss Fleper left the restaurant about half an hour after the respondent did and she too went home, taking with her six bottles of Crown Lager beer. Miss Fleper and the respondent sai up and talked tall about 3.00 a.m. during which time the respondent drank two cans of beer and Miss Fleper one bottle of Crown Lager. At about 3.00 a.m. Miss Fleper retired to her room and went to bed. Prior to her doing so the respondent tried to dissuade her by asking her to stay up and have some more beer, but at that time the respondent was faarly drunk, Upon her retirement Miss Fleper left fave fujJl bottles of Crown Lager beer; but when she rose in the morning she noticed that all five bottles were empty although the respondent had been dranking cans of Carliton Draught beer whilst the two of them conversed until the early hours of the morning. Crowm Lager bottles hold thirteen ounces of beer. At 3.35 a.m. the control room of the Northern Territory Fire Brigade received a message that there was a fare in Shultz Street which runs off Lambell Terrace. At 3.36 a.m. the first fire truck arrived, and noticed that the Red Cross Opportunity Shop was on fire. It took the fire JS brigade about 10 minutes to bring the fire under control. The observations of the faremen were that there was one room in which the fire had obviously started being a bedroom in which thére was a bed and mattress. Jt was a room kept by the Red Cross for accommodating people who visited Darwin from the outback to see their relatives or friends who were in the Darwin Hospital. There was nobody resident in that room that naght. At 4.11 a.m. the Control Centre of the Fire Brigade received a second call in connection wath a fire in the Psychiatric Clinic which 1s part of the Darwin Hospital. The fire brigade was at the Red Cross Centre at that time; they moved to the second fire and brought it under control by 4,20 a.m. When the fire brigade arrived at the Psychiatric Clanic it was full of smoke but they were able to restrict the fire to a small storage room where the fire had been started and which contained highly inflammable material in the form of toilet rolls and paper towels. I need not review the evadence as to the witnesses who identified the respondent as the person who started the fire because there is no dowt that it was he who did so. At 4.43 a.m. the police communications centre at Darwin received the first of four telephone calls from a person claiming to have 1it the fires at the Psychiatric Clinic and the Red Cross Opportunity Shop. .\ second call was received at 5.00 a.m., the third between 5.20 a.m. and 5.25 a.m. and the final call at about 7.03 a.m. 21/6 Steps were taken to trace the calls. They were traced to the premises of No. 1 Lambell Terrace. Thereafter the police surrounded the premises and arrested the respondent Before the respondent was arrested, Mr. Findlay rose at about 6.40 a.m. and spoke to the respondent who was standing in the kitchen wearing a dressing gown and drinking beer. The respondent told Mr, Findlay that he had been up all night and had seen vehicles with flashing lights travelling up and down in front of the house. Mr. Findlay noticed that there were four empty Crown Lager bottles of beer. At about 8.00 a.m. at the police station the respondent was questioned by the police. He claimed to have slept until 7.00 in the morning and denied that he had made any telephone calls during the evening or morning and said that he was asleep. He denied any knowledge of the fires at the Red Cross Centre and the Psychiatric Clinic. He then sought legal advice and, having obtained it, declined to answer any further questions. There was considerable damage to the Red Cross Opportunity Shop. The damage to the Psychiatric Clinic was restricted to its contents. This 1s not the farst time that the respondent has been convicted of arson. In January 1976 he was sentenced by the Supreme Court of Western Australia in Perth to amprisonment for three years on two counts of arson with no parole period being fixed. The respondent was released from prison in Western Australia on 8 April 1978 2/7 having served his semnteuce for two years and three months. Within less than e1ght months he had lit the fires in the Red Cross Opportunity Shop and the Psychiatric Centre of the Darwin Hospital. The Crown contended before this Court that the learned sentencing yudge should have imposed a substantial sentence on each count and siould have found in all the circumstances that no non-parole period should be specified. This court will interfere with the sentence imposed by the learned sentencing gudge 1f 1t 1s established that his Honour was in error in acting on a wrong principle or in wrongly determining some material evidentiary question. This court does not intervene merely because in 1ts opinion the sentence 1s excessive or inadequate. The error may appear from the learned sentencing judge's remarks or from the sentence itself which may be manifestly insufficient or excessive. See Skinner v. R, (1913) 16 C.L.R. 366; Whittaker v. R. (1928) 41 C.L.R. 230; Griffiths v. R. (1977) 15 A.L.R. 13) Rev. Tart (a decision of the Full Bench of this court delivered on 1 May 1979, not yet reported. ) Although the Federal Court of Australia Act 1976 does not distinguish in principle between appeals by the Crown and those by convicted persons, some special considerations arise where the Crown appeals on the ground that the sentence 1s insufficient. See Peel v. R. (1971) 125 C.L.R. 447 especially per Barwick C. J. at p. 452; R, v. Tait (supra). In R. v. Tait (supra) Brennan, Deare and Gallop JJ. said:- "It would be unjust to a defendant, whose -8- freedom 1S in ygeopardy for the second time, to consider on appeal a case made against him on a new basis - a basts which he might have successfully challenged had the case against him been fully presented before the sentencing court...There would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required Lo assist the sentencing gudge to avoid the error, or 1f the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him," In the light of these principles I turn to the present appeal. The Crown submitted that the learned sentencing judge imposed sentences so manifestly inadequate as called for the intervention of this Court. The Crown contended that his Honour had regard solely to the question of rehabilitation of the respondent to the exclusion of matters of deterrence and the general protection of the community. The Crown submitted that his Honour's error is manifest from an examination of farst, the inherent nature of the offences themselves; second, the circunstances surrounding the commission of the offences; third, the character of the respondent particularly when consideration 1s given to his antecedents, and fourth, the future prospects of rehabilitation of the respondent as opposed to the very real prospect of a repetition by him of the same sort of offence. The maximum penalty prescribed for the offence, the subject of the first count, 1s fourteen years' imprisonment. in Tait's Case (supra) the Court said:- "A maximum penalty 1s reserved for the worst type of case falling within the relevant prohibition. The observance of this principle -./9 ~9- provides the flcx1bility in sentencing which secures proportion and comparability among sentences imposed...The prescribing of a maximum penalty im respect of an offence not only marks the iimits of the court's discretionary power as to sentence, 14 also ordinarily prescribes what the penalty should be in the worst type of case which falls within the relevant class of offence... That is not to say that a maximum penalty should not be imposed ln a case which othervise required at merely because a worse case could be imagined. ».-That principle requires that both the nature of the crime and the circumstances of the criminal be considered in determining whether the case 1s of the worst type." The circumstances surrounding the commission of the offence and the antecedents of the respondent require imposition of a substantial sentence. The deterrent aspect of punishment is of considerable importance in cases of this kind. The sentence should demonstrate to others tempted to engage in offencesof a like nature that punishment will be imposed calculated to protect society from serious attacks upon it. It was submitted by counsel for the respondent that it would not be in the best interest of the respondent to be sentenced to a term of imprisonment as he was a person suffering from deep-seated psychological problems. A great deal of psychiatric and psychological material was before the learned sentencing judge. His Honour gave great weight to what he regarded as the respondent's prospects of rehabilitation. I have no doubt that the respondent impressed hamself upon the learned sentencing judge as a man with distanct disorders of personality. His Honour clearly held the view that the respondent was capable of being rehabiiilate: provided he had the support of probation officers, psychiat-~ rists and psychologists. I have considered the psychiatric .2-/10 -10-~ and psychological evidence placed before his Honour but have come to the conclusion 1t does not support his Honour's conclusion as to the respondent's prospects of rehabilitation. The maximum penalty prescribed for the first offence namely fourteen years' tmprisonment, reflects its seriousness. Less than eight months before he committed that offence the respondent had been released from prison in Western Australia having earlier committed offences of a like nature there. TI am left with the strong impression that the respondent 1s quate likely to offend again in a similar way. In my opinion the reformative aspect was given too much weight by the learned sentencing judge. The result of his Honour's decision when the sentence is viewed as a whole, is to produce a sentence so lenient that it does not accord with the general moral sense of the community and 1s unlikely to be a sufficient deterrent to the respondent or to others. See R. v. Geddes (1936) 36 S.R. (N.S.W)554; Channon v. R. (1978) 20 A.L.R. 1; R. v. Prindable - a decision of the Fuli Bench of this court delivered 9 March 1979, not yet reported. The error in the sentence of the learned sentencing judge is manifested particularly by the provision for the release of the respondent on 2 July 1979 and as well by the term of the non-parole period. In my opinion the case calls for a sentence imposing a term of imprisonment without such release and the fixing of a longer non-parole perirod. I do not think 1t necessary to alter the term of the head sentence. wa e/11 -~11- L agree with the conclusion of Gallop J., whose reasons for judgment I have read, that no order should be made by this court in respect of the sentence on the substituted second count. In the result I would allow the appeal and order that in substitution for the sentence imposed on the first count the respondent be imprisoned for a period of four years ten months. I specify a period of two years six months during which he will not be eligible for parole. The sentence will date from 20 April 1979. I agree with the learned sentencing judge that the sentences imposed on both counts should be served concurrently.