Civil and Administrative Tribunal New South Wales Medium Neutral Citation: White v Commissioner of Police, NSW Police Force [2024] NSWCATOD 146 Hearing dates: On the papers Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Occupational Division Before: P H Molony, Senior Member Decision: (1) An oral hearing is dispensed with. (2) The decision of the Commissioner made 11 June 2024 is set aside. (3) The decision is remitted to the Commissioner for reconsideration in accordance with these reasons within 28 days. Catchwords: ADMINISTRATIVE LAW - Security Industry Act 1997 (NSW) – application for security industry licence – mandatory refusal – whether conviction for perjury under s 703 of the Criminal Code 2002 (ACT) is a conviction for an "offence involving dishonesty or fraud" – the offence of perjury under s 703 of the Criminal Code 2002 (ACT) does not necessarily require proof dishonesty or fraud. WORDS AND PHRASES - "an offence involving fraud, dishonesty or stealing" Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crimes Act 1900 (NSW) Criminal Code 2002 (ACT) Criminal Code 1995 (Cth) Crimes (Sentencing) Act 2005 (ACT) Civil and Administrative Tribunal Act 2013 (NSW) Security Industry Act 1997 (NSW) Security Industry Regulation 2016 (NSW) Cases Cited: Barber v Law Society of NSW (No 2) [2001] NSWSC 361 Farah v Director General, Department of Finance and Services [2013] NSWADT 197 Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Joyce v Commissioner of Police, NSW Police Service [2000] NSWADTAP 17 Murabito v Commissioner for Fair Trading (No 2) [2020] NSWCATAP 155 Nguyen v Commissioner of Police, New South Wales Police Force 2018] NSWCATAD 242 RTA v Sharp Towing Pty Ltd [2008] NSWADTAP 49 Texts Cited: Victorian Law Reform Commission, Recklessness Report, February 2024 Category: Principal judgment Parties: Scott John White (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Applicant – Self-Represented Respondent – Office of the General Council, NSW Police Force File Number(s): 2024/00225761 Publication restriction: None reasons for decision Background 1. On 19 June 2024 Mr White (the applicant) filed an application for administrative review, seeking to review a decision made on 11 June 2024 by a delegate of the Commissioner of Police, NSW Police Force (the Commissioner), to refuse his application for a Class 1E security licence under s 16(1)(a) of the Security Industry Act 1997 (NSW) (the SI Act). That section provides: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant— (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, … 1. Clause 15 of the Security Industry Regulation 2016 (NSW) (the SI Regulation) prescribes offences for the purpose of s 16(1). Clause 15(1)(d) relevantly provides that: (1) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales— (a) … (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. … 1. The delegate found that the applicant was convicted in the Australian Capital Territory (ACT) on 19 April 2022 of perjury, contrary to section 703(1) of the Criminal Code 2002 (ACT) (the ACT Code). He was sentenced to 18 months imprisonment, which term was immediately suspended. He was then released and required to enter a good behaviour bond under s 12 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 24 months. The delegate noted that the applicant had unsuccessfully appealed that conviction. 2. The delegate found that a conviction for perjury in breach of section 703(1) of the ACT Code was a conviction for an offence under the law of the ACT involving fraud, dishonesty or stealing. As a result, the delegate was required to refuse the application for a licence under the SI Act and could not grant the appellant a licence. The license application was therefore refused. 3. After the applicant made his administrative review application to NCAT the matter was listed for directions on 12 July 2024. Directions were made for the filing of materials and submissions in accordance with a tight timetable, and the Tribunal ordered by consent that: The application be determined on the papers. 1. The administrative review application has since been allocated to me to determine without a hearing on the basis of the materials provided by the parties. Materials before the Tribunal. 1. The parties filed the following materials: 1. Administrative review application made by the applicant and received by the Tribunal on 19 June 2024, with attachments. 2. Bundle of documents that the Commissioner was required to lodge under s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 3. Submissions from the applicant filed 22 July 2024, 8 August 2024 (with attachments) and 13 August 2024. 4. The Commissioner's submissions filed 2 August 2023 (with attachments) and 13 August 2024. Should the application be determined without a hearing? 1. Section 50 (2) to (4) of the NCAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 1. In this case both parties have consented to the application being determined on the papers. Having reviewed the materials and submission it is plain that the applicant does not dispute the fact of his conviction for perjury under s 703(1) of the ACT Code, or its date, 19 April 2022. He does dispute that the conviction was one for an offence "involving fraud, dishonesty or stealing." He says that the offence does not involve fraud, dishonesty or stealing, and that, as a consequence, s 16(1)(d) of the SI Act does not require that his licence application "must" be refused; i.e. a mandatory refusal. Whether or not the offence is one ""involving fraud, dishonesty or stealing" is a question of statutory interpretation: see Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. It does not require an oral hearing, and can be readily determined by considering submissions addressing that issue. 2. I am satisfied that this matter can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing. Non-compliance with Directions by the Commissioner. 1. The applicant says that the Commissioner has failed to comply with the tight timetable set by the Tribunal in this case and that, as a consequence, the Tribunal "should not consider the late served documents." The delays concerned are one day for the s 58 documents and one week for the Commissioner's evidence and submissions. This has not resulted in any delay in the applicant's compliance with the timetable. While the applicant claims to have been prejudiced by the delay, he has not specified the manner in which this occurred beyond asserting that the delays, "undermine the fairness and integrity of the process", disadvantaging him as an unrepresented litigant. The delays have not resulted in any adjournment or postponement. No specific disadvantage is apparent. The applicant's submissions impress as full and complete. I do not accept that he has suffered any significant prejudice as a result of the Commissioner's delay. 2. In conducting proceedings, the guiding principle of the Tribunal in s 36 of Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) instructs that the Tribunal is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". In addition, s 38(4) instructs that: (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. In the circumstances, and despite the Commissioner's delays, I will not exclude the late material filed by the Commissioner on that basis. The approach to be adopted in deciding whether an offence a conviction for an interstate offence is one involving "involving fraud, dishonesty or stealing". 1. Both parties agree that the approach adopted by the Appeal Panel in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah) is one that the Tribunal should follow when deciding whether the applicant's conviction in the ACT for perjury contrary to s 703 of the ACT Code is one involving dishonesty. As that conviction occurred within 10 years of the applicant's licence application and carries a maximum term of imprisonment greater that 12 months, then s 16(1)(a) of the SI Act, read with cl. 15(1)(d) of the SI Regulation, require a mandatory refusal of the applicant's licence application if they apply. 2. In Farah the issue before the Tribunal was whether a money laundering offence under s 400.6(2) of the Criminal Code 1995 (Cth) (the Commonwealth Code), "where the offender deals with money and is reckless as to the fact that the money is proceeds of crime, is an 'offence involving dishonesty'" (at [1]). That section provided: (2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is proceeds of crime; or (ii) there is a risk that the money or property will become an instrument of crime; and (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and (d) at the time of the dealing, the value of the money and other property is $10,000 or more. 1. If it was, Mr Farah was disqualified from holding a real estate agents licence under s 16(1)(a) of the Property Stock and Business Agents Act 2002 (NSW) (the PSB Act). 2. At first instance the Tribunal in Farah v Director General, Department of Finance and Services [2013] NSWADT 197 focussed, at [58] on "whether there can be found to be dishonesty for the purposes of the Act in the conduct of the Applicant". The Appeal Panel found, at [18], that the Tribunal had erred in law by taking into account Mr Farah's conduct and/or state of mind, rather than considering whether the offence is one that, "of its nature necessarily involves dishonesty", at [19]. 3. The Appeal Panel was there quoting Bell J in Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32] (Barber). In Barber an issue was whether a conviction for the offence of taking part in the manufacture of a prohibited drug (or conspiring to produce) contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) was a conviction for a crime or an offence involving dishonesty. Bell J said: 32 ... It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry. Offences involving dishonesty embrace those such as stealing and robbery in which the property of another is taken with the intention thereby of permanently depriving the rightful owner of it and offences where property or some advantage is gained through indirect means such as false pretences, conspiracy to defraud and the like. Glanville Williams notes that while the great majority of offences of dishonesty relate to property it is not true to say that all do; Textbook of Criminal Law, 2nd Ed, Stevens, Lond. 1983, at p 699. He cites as an illustration of an offence of dishonesty not involving property the commission of perjury in order to avoid going to prison. 33 I am not persuaded that on a generous interpretation of the concept of a crime or offence involving dishonesty that a conviction for the offence of taking part in the manufacture of a prohibited drug (or conspiring to produce) contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) might properly come within the term[s] … 1. In Farah the Appeal Panel found that the mandatory disqualification decisions required by the PSB Act have a significant impact on the livelihood of persons concerned and that, at [24], "the kinds of offences to which mandatory disqualification applies should not be construed broadly." So too, do those under the SI Act. The Appeal Panel went on to construe what was meant by ""offence involving dishonesty" in the PSB Act. 2. With respect to the meaning of dishonesty the Appeal Panel said: Meaning of "dishonest" 26 The Macquarie Dictionary online defines 'dishonesty' as: noun (plural dishonesties) 1. lack of honesty; a disposition to lie, cheat, or steal. 2. a dishonest act as a fraud or theft. 27 The word "dishonest" has been interpreted by the High Court in the context of an exclusion clause in an insurance policy: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65. The clause excluded any liability "brought about by the dishonest or fraudulent act or omission of the assured." Guadron J distinguished between an act and an omission at [55] and [56] that: Dishonesty is an ordinary concept, not a term of art. It is, on that account, difficult to define in any comprehensive manner. However, dishonesty is a matter to be determined by reference to the mental state of the person whose conduct is in issue. It was pointed out in Peters v The Queen that "in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent". Leaving aside the situation in which there is an honest claim of right, the question whether a failure to act is dishonest is usually answered by considering whether that failure was motivated by a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled. (Footnotes deleted) 28 Kirby P made the point out at [89], that dishonesty in the context of a criminal prosecution raises different questions from dishonesty in a contract of professional indemnity insurance. But in relation to the term "an offence involving dishonesty," we are of the view that the ordinary meaning, as outlined by Guadron J, is the starting point. Whether it has a broader meaning depends on the meaning attributed to the word "involving". The word 'dishonest' in the offence provision 29 If the offence provision contains the word "dishonest", that offence is an offence involving dishonesty. In many cases there is a definition of "dishonesty" in the relevant statute. For example, the Criminal Code defines "dishonest" in certain contexts to mean: (a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people. 30 This test, known as the Ghosh test comes from the English decision R v Ghosh [1982] QB 1053; [1982] 2 All ER 689. It is not relevant when ascertaining the meaning of dishonesty in the phrase an "offence involving dishonesty" because it is intended to define the word "dishonest" in a particular statutory context. The word dishonest is not in the offence provision 31 To be an "offence involving dishonesty" the relevant statutory provision does not have to contain the word "dishonest" or "dishonesty". Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179]. 32 In Kortman and Attorney-General's Department [2010] AATA 1074 (22 December 2010) the Administrative Appeals Tribunal decided that an offence of obtaining a financial advantage was an offence involving dishonesty. Recklessness and dishonesty 33 In Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 the plaintiff had been convicted of obtaining money by false or misleading statements: Crimes Act 1900 (Cth) s 178BB. The charge was that the person made a statement which was false in a material particular and which was made with reckless disregard as to whether it was true or false in a material particular with the intent to obtain certain moneys for a company. Abadee J held at 668 that a conviction for that offence "involved dishonesty" even though the words "fraudulently" or "dishonestly" are not in the provision and the offence required proof of recklessness, rather than intent. 1. In Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 (Pollard) the issue was whether the plaintiff had been convicted of an "offence involving fraud or dishonesty" within the meaning of s 227(2)(b) of the Companies (New South Wales) Code (Repealed) which would prevent him being a director of a corporation. He had pleaded guilty to and was convicted of a charge that he had made "a statement which was false in a material particular and which was made with reckless disregard as to whether it was true or false in a material particular with the intent to obtain certain moneys"; at 664. In finding that this was an offence involving dishonesty, Abadee J explained that, at 667, "the only intent necessary is an intent to obtain money, a valuable thing or financial advantage." 2. Abadee J held that were it necessary to determine an alternate argument that that the plaintiffs conduct relating to the charge was dishonest or fraudulent, he would consider those elements established, at 663. This obiter dicta was followed by Appeal Panels of the Administrative Decision Tribunal (ADT) in Joyce v Commissioner of Police, NSW Police Service [2000] NSWADTAP 17 (Joyce) and RTA v Sharp Towing Pty Ltd [2008] NSWADTAP 49 (Sharp). 3. In Joyce the Appeal Panel plainly had regard to the actual conduct of the applicants, who had been convicted of Goods in Custody contrary to s 527C(1) of the Crimes Act 1900 (NSW), in determining whether the offence involved fraud, dishonesty or steeling. There the focus of the offence was on the "candour, honesty and plausibility" (at [27]) of the applicant's explanation. In Joyce the Appeal Panel found that, at [51]: The word 'involving' can, it seems to me, be interpreted as allowing reference to the circumstances of an offence, not merely the terms of the offence provisions." 1. In Farah the Appeal Panel concluded that the narrower approach adopted by Bell J in Barber was to be preferred and should be confined to a consideration of the offence itself. The Appeal Panel concluded that, at [42]: 42 Our conclusion is that it is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty "without further inquiry". 1. The Appeal Panel then turned to consider the elements of the offence of money laundering under 400.6(2) of the Commonwealth Code and whether it involved dishonesty: 48 … those elements are that: (1) the perpetrator made payments on behalf of another person; (2) payment was made in circumstances where there was a substantial risk that the money was the proceeds of crime; (3) the perpetrator was reckless as to that risk; and (4) the amount involved was more than $10,000. 49 There is no act or omission involved in this offence which comes within the ordinary meaning of dishonesty or within the extended meaning including recklessness. Although it was an element of the offence that the perpetrator be reckless as to the risk that the money was proceeds of crime, that does not involve any dishonesty on his or her part. The Tribunal suggested that Mr Farah was concealing the truth from police by not reporting his suspicions to them. But even if we assume that Mr Farah understood that he was concealing something from police that is not a state of mind that is involved in the offence itself. 1. The approach in Farah has subsequently been approved by the Appeal Panel in Murabito v Commissioner for Fair Trading (No 2) [2020] NSWCATAP 155 at [47] (Murabito). 2. I shall adopt the same approach in determining whether the applicant's conviction in the ACT for perjury is for an offence involving fraud, dishonesty or stealing. 3. In doing so, I reject the applicant's submission that I should compare the elements of the ACT offence with those of the offence of perjury in NSW: his point being that s 327 of the Crimes Act requires that the person making a false statement knows it to be false, as opposed to being reckless to the risk of making it. Section 16(1)(a) of the SI Act read with cl 15(1)(d) of the SI Regulation do not require such a comparison. Rather, as the Commissioner submitted, the focus is on whether the offence of perjury in s 703(1) of the ACT Code is one involving fraud, dishonesty or stealing. The applicant's objection to the s 58 documents. 1. Before doing so, however, it is necessary to briefly deal with the applicant's objection to the s 58 documents lodged by the Respondent. Section 58 of the ADR Act relevantly provides: (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. 1. The s 58 documents filed by the Commissioner include information going to the conduct of the applicant in respect of the perjury offence (including a police fact sheet, sentencing remarks and an ACT Court of Appeal Decision) as well as information relating to his background and reputation more generally. There are also administrative records relating to his licensing application. 2. Because the administrative review is confined to a consideration of whether the offence of perjury in the ACT, of which the applicant was convicted within the last ten years, is one "one involving fraud, dishonesty or stealing" it does not require a consideration of the applicant's fitness, reputation or conduct. He therefore objects to the Tribunal having regard to material detailing his conduct in relation to the offence. The Commissioner on the other hand submitted that it, "was not precluded from having regard to documents filed pursuant to s 58 of the ADR Act, including for informing itself as to the background of the matter." 3. The Commissioner has failed to explain how, in the circumstances, material evidencing the conduct of the applicant, when committing the perjury offence, or of the applicant's conduct, reputation and fitness more generally, is relevant to the Tribunal's determination under s 16(1)(a) of the SI Act. Given the decisions in Farah and Murabito, the consideration is confined an examination of the offence of perjury under the ACT Code to see if it necessarily involves "fraud, dishonesty or stealing". 4. As a result, I have not had regard to materials in the s 58 documents going to the applicant's character and the circumstances resulting in his conviction. Having reached that conclusion it is not necessary to consider the applicant's submission that the Commissioner is prohibited from relying on the police fact sheet by the operation of the Harman Principle: see Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 323, per Lord Scarman. Relevant provisions of the ACT Code. 1. Part 7.2 of the ACT Code, sections 700 to 704, is found in Part 7, Administration of justice offences. Section 703(1) relevantly provides: 703. Perjury (1) A person commits an offence (perjury) if— (a) the person makes a sworn statement in a legal proceeding; and (b) the statement is false; and (c) the person is reckless about whether the statement is false. Maximum penalty: 700 penalty units, imprisonment for 7 years or both. 1. A sworn statement is one made on oath or affirmation. 2. Part 2.2 – section 11 to 22 sets out the elements of an offence against the ACT Code. It mirrors the provisions of Part 2.2. of the Commonwealth Code, which are numbered 3.1 to 5.6. There are more authorities considering how the Commonwealth Code applies, that those relating to same provisions in the ACT Code. 3. Under the ACT Code "offences consist of physical and fault elements": s 11(1). Section 12(1) then specifies: (1) A person must not be found guilty of committing an offence unless the following is proved: (a) the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt; (b) for each of the physical elements for which a fault element is required—the fault element or 1 of the fault elements for the physical element. 1. Physical element is defined in s 14: A physical element of an offence may be— (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, happens. 1. Section 17 provides that there are four possible fault elements for any physical element of an offence: "intention, knowledge, recklessness or negligence." These are all defined in the ACT code: 18. Intention (1) A person has intention in relation to conduct if the person means to engage in the conduct. (2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events. (3) A person has intention in relation to a circumstance if the person believes that it exists or will exist. 19. Knowledge A person has knowledge of a result or circumstance if the person is aware that it exists or will exist in the ordinary course of events. 20. Recklessness (1) A person is reckless in relation to a result if— (a) the person is aware of a substantial risk that the result will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (2) A person is reckless in relation to a circumstance if— (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is a question of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element. 21. Negligence A person is negligent in relation to a physical element of an offence if the person's conduct merits criminal punishment for the offence because it involves— (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist. 1. In the case of perjury, in which recklessness is the fault element, s 20(4) provides that proof of intention or knowledge will satisfy proof of that element, as well as proof of recklessness itself. 2. It is important to note that Part 7.2 of the ACT Code also contains an offence of aggravated perjury. This is found in s 702(1) which provides: 702. Aggravated perjury (1) A person commits an offence (aggravated perjury) if— (a) the person makes a sworn statement in a legal proceeding with the intention of procuring the person's or someone else's conviction for, or acquittal of, an offence (the relevant offence); and (b) the relevant offence is punishable by imprisonment; and (c) the statement is false; and (d) the person is reckless about whether the statement is false. Maximum penalty: 1400 penalty units, imprisonment for 14 years or both. 1. The maximum penalty for aggravated perjury is twice that for perjury. Aggravated perjury requires that a person make a sworn, false statement in legal proceedings with the intention of procuring a conviction for, or acquittal of, a person charged with an offence. It therefore only applies to criminal proceedings in which a person is charged with an offence. Perjury, on the other hand, applies to legal proceedings both civil and criminal as defined in s 701, and does not require any specific intention of a person in making a sworn, false statement. 2. The offences of perjury and aggravated perjury in the ACT Code are not precisely replicated in the Commonwealth Code. Does the offence involve fraud, dishonesty or stealing? 1. Section 703(1) of the ACT Code does involve not theft. It does not require that a false sworn statement be made dishonestly or fraudulently, or with any specific intention. Unlike the offence of aggravated assault under s 702(1), no specific intention to procure a desired result in legal proceedings is required. What is required is that statement made in legal proceedings is false and that the person making the statement is reckless about that fact. 2. This requires that an offender who makes a false statement "is aware of a substantial risk" that the statement will be false, and that, having regard to the circumstances known to the offender, making the statement is an unjustifiable risk to take; see s 20(2). The fact that there is a substantial risk is a subjective element of the offence which must be known to the offender: see Hann v DPP (Cth) (2004) 88 SASR 99 where Gray J said at [26]: In order to establish recklessness under the Criminal Code [Cth] it must also be shown that the defendant was aware of the substantial risk. Conscious awareness of risk is required; it is not enough to show that the risk was obvious or well known. 1. Whether taking the risk is unjustifiable is a somewhat different matter. In R v Saengsai-Or [2004] NSWCCA 108 the NSW Court of Criminal Appeal (Wood CJ at CL Simpson and Bell JJ) explained that, at [70]: Recklessness with respect to a circumstance under the Criminal Code invites consideration of (i) the accused's awareness of a substantial risk that the circumstance exists, and (ii) having regard to the known circumstances whether it was unjustifiable to take the risk. The latter consideration does not involve a question of fact. It requires that the jury make a moral or value judgment concerning the accused's advertent disregard of the risk. 1. The Victorian Law Reform Commission in its Recklessness Report, February 2024, at 6.78, suggested that the second element created complexity and involved both objective and subjective risk assessments, which could be characterised as requiring an objective judgment. 2. The offence of perjury under the ACT code does not require proof that that an accused know that a sworn, statement is false, or that it be made with the intention of procuring a specified outcome. Proof of recklessness as defined in s 20 of the ACT Code will suffice, as will proof of knowledge or intent. Section 703(1) does not require that the making of the statement be dishonest or fraudulent. This is to be contrasted with the offence of aggravated perjury, where an intention to procure a desired outcome in the legal proceedings is an element of the offence. That is clearly dishonest. 3. In Gregg v R (per Bathurst CJ, Hoeben CJ at CL and Leeming JA) the accused, as an officer of a company, was charged with two counts of engaging in conduct that resulted in the falsification of books affecting or relating to affairs of the company under to section 1307(1) of the Corporations Act 2001. One count did not on its face require an element of dishonesty, while the other count did: because it related to a sham transaction. The Court found no error in the trial judge's direction on count I to the effect that falsity did not require proof of dishonesty or any intention to deceive or mislead. On count 2, however, it did. The Chief Justice explained, at [447] that: … the incorporation of the definition of falsity including the absence of any requirement to prove dishonesty or an intention to mislead or deceive was erroneous in circumstances where sham requires deliberate deception. 1. Dishonesty or fraud is not a stated element of the offence of perjury under s 703(1) of the ACT Code. There is no requirement that the accused know the statement is false, or that the accused have an intention of procuring a desired outcome in the proceedings by making a false statement. Both would demonstrate dishonesty if proved, as well as satisfying the element of recklessness under the ACT Code. Recklessness, as defined in s 20 of the ACT Code, envisages situations where a prosecution for perjury may be demonstrated by proof of knowledge and intention involving dishonesty: but it also envisages situations in which the offence is committed recklessly, without knowledge or intent. I do not accept that a conviction for such an offence necessarily involves dishonesty as submitted by the Commissioner. It may do so, but that is not necessarily the case. 2. While some authorities point to perjury as being an offence necessarily involving dishonesty, on closer examination it is apparent that they deal with cases in which a false statements were made with the intent of procuring a desired result. Bell J in Barber cited the Textbook of Criminal Law, 2nd Ed, Stevens, Lond. 1983, at p 699, as instancing, "the commission of perjury in order to avoid going to prison," as an offence of dishonesty. In that example, the false statement is made to procure a desired result. That is not a requirement of s 701(3). The reference in Farah, at [31], to perjury involving dishonesty, was made in the context of discussing the decision in Barber, and related to perjury under NSW law, not the ACT Code. 3. In McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 Gaudron J pointed to the importance of "a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled," in proving dishonesty. This is not a requirement of s 701(3). In Pollard, at 673 to 674, Abadee J, when discussing recklessness in the context of fraud and deceit, expressed the clear view such recklessness was dishonest. In that case His Honour found that to prove dishonesty the only intent necessary was an intent to "obtain money, a valuable thing or financial advantage." In contrast, the pursuit of an objective, advantage or benefit, as occurs in cases of dishonesty, fraud and deceit, is not a requirement of the offence of perjury under s under s 701(3). It is possible to be convicted of that offence, if committed recklessly and without knowledge or intent. When a person is charged with that offence, it is not possible to find that it involves dishonesty or fraud without further inquiry. 4. Mention should also be made of the offence of Goods in Custody contrary to 527C(1) of the Crimes Act 1900 (NSW) which was found to be an offence involving dishonesty in Nguyen v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 242. There the essence of the offence is that a person is in possession of goods reasonably suspected of being stolen or otherwise unlawfully obtained. A defence is available if the person charged satisfies the court that he or she had "no reasonable grounds" for suspecting that the goods were stolen or otherwise unlawfully obtained. The section itself puts honesty in issue. 5. That is not the case with the offence under s 703(1) of the ACT Code, which does not necessarily require proof of dishonesty or fraud. It is to be contrasted with aggravated perjury under s 702(1), which, while confined to criminal cases, clearly involves an intention to procure a desired outcome in proceedings. That is plainly dishonest. 6. As a result, I am satisfied that the applicant's conviction for the perjury contrary to the ACT Code is not for an offence necessarily involving fraud, dishonesty or theft. 7. Therefore, the decision will be remitted to the Commissioner for reconsideration, so that discretionary matters concerning the licence application, which are yet to be considered, may be dealt with. Orders 1. The Tribunal makes the following orders: 1. An oral hearing is dispensed with. 2. The decision of the Commissioner made 11 June 2024 is set aside. 3. The decision is remitted to the Commissioner for reconsideration in accordance with these reasons within 28 days. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2024