Duff v The Queen
(1979) 39 FLR 31528 ALR 663
(Judgment by: McGregor J)
Between: Duff
And: The Queen
Judges:
Brennan J
McGregor JLockhart J
Subject References:
Criminal Law
Statutes
Evidence
Jury
Jurisdiction
Judgment date: 6 December 1979
Judgment by:
McGregor J
I differ from the other members of the court upon the question whether it was open to the jury to convict the appellant of attack upon the person of Colonel Singh on the indictment as presented. (at p361)
The question which arises is whether the charge on which the appellant was firstly convicted (an attack upon the person of Colonel Singh) being the so called alternative to the first count (attempt to murder) in the indictment was in law an available alternative, although it did not appear in the indictment. The first count charged an attempt to murder. This was available pursuant to s. 8(1) of the Act as amplified by the Crimes Act 1914 as amended (Crimes Act) s. 7. No exception was or could be raised to the charge so framed. (at p361)
The Crimes Act makes no explicit reference to the Act against which the offence of attempted murder is said to have been committed. In my opinion, the effect of s. 7 is to add attempts to the list of offences provided for in "any law of the Commonwealth" and thus to add attempts to offences against the Act. When s. 7 of the Crimes Act does so, the offence is not against the Crimes Act but against the substantive Act. (at p361)
The form of s. 7 "shall be guilty of an offence" omits reference to the Act breached. Those words are found elsewhere in the Crimes Act (see e.g. Pt III). The phrase "offence(s) against this Act" also appears elsewhere in the Crimes Act, eg. in s. 4, s. 12, s. 12(A), s. 16(2), s. 23. This contrast in wording seems to mark out that there are offences "against this Act" - where the Crimes Act is a source of original offences - and on the other hand that conduct may constitute the commission of an offence (s. 5), one element of which must be found elsewhere, namely in some other law of the Commonwealth. When that element is found in particular legislation it seems logical that that legislation which may lay down a variety of requirements in respect of a particular subject matter, will be regarded as providing for all offences related to the duties with which that legislation is concerned. (at p361)
Otherwise there would be an anomaly in that the main offence is one charged against or available in the substantive provision; whereas the attempt to commit that offence is a breach of different law. The lesser offence would be regarded as arising, in my view, within an expansion, or by process of an expansion, by the operation of the Crimes Act on the terms of the substantive Act. Consistently, the Crimes Act refers to the relevant "law of the Commonwealth" for ascertainment of the penalty. (at p361)
It seems that the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, par. 1(d) of art. 2, contemplated that each State party would create a crime under its internal law of attempt to murder, attempt to kidnap or attempt to commit any other attack. The Act carries this into effect. (at p362)
In my view, the same result is produced by s. 8(5) of the Act. Whether one regarded the use of the word "created" (particularly when applied to s. 5 of the Crimes Act) as entirely apt, the effect of the section is to make the offence of attempt, which relates to the more complete crime for which s. 8 provides, an offence against the Act. It would be entirely harmonious to the scheme of the legislation, as I see it, to expect that attempts would not remain as offences, as it were, at large "against this Act"; but would be localized in the logically appropriate place, i.e. that subsection which provided for the main offence. The very specification in s. 8(5): "(1), (2), (3) or (4)" seems to me to assist to this construction. (at p362)
The import of "deemed" varies with the context. Frequently it effects a "disputable presumption". That is quite different from its operation here. Some help as to its function is found in authorities eg. Muller v. Dalgety & Co. Ltd. (1909) 9 CLR 693 . Section 9A of the Immigration Restriction Act 1901-1908 made it an offence for a vessel to have on board a stowaway. This case was dealing more specifically with s. 9D of that Act. It read: (at p362)
"Any person on board a vessel at the time of her arrival from any place outside Australia at any port in Australia who is not -
- (a)
- a bona fide passenger on the vessel, or
- (b)
- a member of the crew of the vessel whose name is on the articles, shall be deemed to be a stowaway, unless the master of the vessel gives notice to an officer that the person is on board the vessel, and does not permit him to land until the officer has had an opportunity of satisfying himself that the person is not a prohibited immigrant." (at p362)
Griffith C.J. said:
"The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James L.J. and Lord Cairns L.C. called a 'statutory fiction' (see Hill v. East and West India Dock Co. (1884) 9 App Cas 448, at p 456 ) that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate" (1909) 9 CLR, at p 696.
Barton J. said (of s. 9D):
"That section does not provide for any restriction or definition of the term 'stowaway', but is superadded to sec. 9A for the purpose of enlarging the class" (1909) 9 CLR, at p 705 . (at p362)
In St. Aubyn v. Attorney-General [1952] AC 15 Lord Radcliffe said:
"The word 'deemed' is used a great deal in modern Legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible" (1952) AC, at p 53 . (at p363)
In Barclays Bank Ltd. v. Inland Revenue Commissioners [1961] AC 509 their Lordships were considering the Finance Act, 1940, s. 55 which read:
- "(1)
- Where for the purposes of estate duty there pass, on the death of a person dying after the commencement of this Act, shares in . . . a company . . . then if -
- (a)
- the deceased had control of the company at any time during the five years ending with his death (there followed a method of estimating the value of shares).
- (3)
- For the purposes of this section a person shall be deemed to have had control of a company at any time if he then had . . . ". (at p363)
Lord Cohen said that "deemed" was "supplementary to or expansive of subsection (1)" (1961) AC, at p 536 . Lord Keith said that s. 55(3):
". . . is not a definition of the meaning of 'control of a company' under subsection (1) but an extension of the meaning under that section" (1961) AC, at p 539.
Lord Denning said:
"Section 55 is dealing with the position of a person who has died - 'person' in the singular, not in the plural - and it is, to my mind, both intelligible and comprehensive when it is applied to a man's own holdings of shares without regard at this stage to his joint holdings. It contains a definition, or what I regard as a definition, of the circumstances in which a person will be held to have had control of a company. The definition is given in section 55(3). The word 'deemed' there simply means 'held'. The subsection is to be read as if it said:'For the purposes of this section a person shall be held to have had control of a company at any time if . . .'.
You must remember that the draftsman here is seeking to explain, not the meaning of a single word, but the meaning of the entire phrase: 'A person' who 'had the control of a company at any time'. A very natural way of explaining such a phrase is to use words to convey what it is to be understood to mean; or considered to mean; or, if you like, what it is to be deemed to mean; for the purposes of the section. If you should try to explain the phrase yourself, you will, I suggest, soon find yourself slipping into the words of the draftsman here or something very like them. 'Deemed' is not used in the technical sense which a lawyer uses when he 'deems' black to be white" (1961) AC, at p 541 . (at p363)
These passages indicate that one should extend or read s. 8 of the Act as if it did explicitly state "or attempt to murder" etc.; which is logically where one would expect to find attempts to murder, etc. prescribed. (at p363)
Further, s. 8(5) will permit the definition by sub-s. (7) of the offences of attempt to kidnap and attempt to murder, and will allow ss. 9, 10, 11, 12 and 15 to operate in respect of charges for such offences. Thus, one accused of attempt to murder would have a s. 9 defence, a s. 10 immunity and be subject to the provisions provided by ss. 11, 12, 15 and 16. All sections are concerned with offences "against this Act". (at p364)
Therefore in my view, the offence charged in the first count of the indictment was an offence against the Act. If this expansion of s. 8 by the provisions of s. 7 of the Crimes Act is correct, then the offence of attempt to murder is an offence against sub-s. (1) of s. 8 and the trial of the accused is for "an offence against sub-section (1)" (i.e. as that phrase appears in sub-s. (6) of s. 8). (at p364)
Since the charge of attempted murder is, on this reasoning, a charge of an offence against s. 8(1), by s. 8(6) the appellant could be found guilty of a s. 8(2) offence. (at p364)
No question of surprise was suggested in argument since even at the first abortive trial, the Crown relied upon the alternative charge and the trial judge ruled that it was available. (at p364)
I also would hold that the charge upon which the appellant was convicted was an available alternative; and without specifically appearing in the indictment. (at p364)
The argument addressed to us treated the problem as one of statutory construction. The new legislation is not yet the subject of authority. Legislation enacted before the 1976 Act included provisions as to "attempt". The Acts Interpretation Act 1904, s. 8, provided:
"Any attempt to commit an offence against any Act shall, unless the contrary intention appears in the Act, be an offence against the Act, punishable as if the offence had been committed." (at p364)
The Crimes Act, s. 7, in its original form, read:
"Any person who attempts to commit any offence against this Act or any other Act, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed." (at p364)
It may be thought to be clearer that the first Act ensured attempts would be offences against the principal Act than did the later. But in Moss v. Donohoe (1915) 20 CLR 580 , where the charge was attempting to trade with the enemy, it was not argued that the two produced any different results: see eg. per Griffith C.J. (1915) 20 CLR, at p 584 and Isaacs J. (1915) 20 CLR, at p 605 (referring specifically only to the first Act but not apparently finding any lack of consistency in the two Acts), Gavan Duffy and Rich JJ. make no reference at all to how "attempt" became part of available charges. Powers J., though expressing some unexplained doubt, referred to the first Act and seems to have read it as making an attempt an offence against the Trading with the Enemy Act 1914. He did not express an opinion as to whether there was any inconsistency. In Moss v. Donohoe (No. 2) (1915) 20 CLR 615 references are also made to the legislation. Griffith C.J. said that s. 7 of the Crimes Act was to the "same effect as" the Acts Interpretation Act 1904, s. 8 (1915) 20 CLR, at p 620 . He dissented because he could not find on the facts any wicked intention; note that on the question of interpretation he said:
"On the one side, it is contended that these provisions are substantive enactments creating offences, and that the words 'attempt to commit an offence against any Act' mean attempt to commit an offence against an Act in force when the attempt is made. On the other hand, it is contended that the provisions are in the nature of definitions, to the effect that in every Act creating an offence the verb, whatever it is (for example, 'forge'), denoting the act which is to be an offence is to be read as if the words 'or attempt to' were inserted (so that 'forges' is to be read as 'forges or attempts to forge'). (at p365)
"In my opinion the latter view is untenable. Neither of the provisions is in the form of an interpretation clause, and in my opinion they are substantive enactments" (1915) 20 CLR, at p 621 . (at p365)
And he considered the Trading with the Enemy Act 1914 did not have a retrospective operation. On the other hand, Powers J. held that "an attempt to trade with the enemy is punishable as an offence under the Act (i.e. the Trading with the Enemy Act 1914)" (1915) 20 CLR, at p 623 . (at p365)
In my opinion amendment to the Crimes Act, s. 7 deleting "against this Act or any other Act" and inserting "against any law of the Commonwealth" did not produce any significant difference in its operation. The first is a dissection of the second; or the second is a conglomerate of the first. (at p365)
The Supreme Court of Western Australia in Fazio v. Spitz (1972) 21 FLR 154 , though dealing with different legislation, recognized that in the High Court judgments earlier referred to, Griffith C.J. regarded s. 8 and s. 7 of the Acts Interpretation Act 1904 and of the Crimes Act respectively as synonymous; but they did not think they should accept that view. (at p365)
I would hold that the appellant was properly convicted of the offence of attack upon the person of Colonel Iqbal Singh. The sentence passed was within a proper exercise of discretion by the trial judge. (at p365)
However, in view of the majority decision that the conviction of attack upon the person of Colonel Iqbal Singh be set aside, I agree that the sentences imposed in respect of the remaining offences should not be disturbed. (at p365)