Scanlan (Respondent) v. Swan (Appellant).

Helman J

District Court (Qld)

Judgment date: Judgment handed down 28 July 1982.

Judge Helman

On March 16, 1982 in the Magistrates Court at Southport the appellant was found guilty and convicted of the offence of obstructing officers, provided for by sec. 232 of the Income Tax Assessment Act 1936, as amended. He was fined $40.

The section to which I have referred is as follows:

``Obstructing officers

232. Any person who obstructs or hinders any officer acting in the discharge of his duty under this Act or the regulations shall be guilty of an offence.

Penalty: Not less than $2 or more than $100.''

Section 263 of the Act is also relevant:

``Access to books, etc.

263. The Commissioner, or any officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may make extracts from or copies of any such books, documents or papers.''

The complaint against the appellant was that on October 10, 1980 at Southport he ``did obstruct officers, namely RONALD JOHN BAUER and ROSS GRAHAM ANDERSON, acting in the exercise of their duty'' under the Act to which I have referred. It should perhaps be noted that the phrase ``in the exercise of his duty'' is, understandably, not to be found in sec. 232, where the words used are ``in the discharge of his duty.'' It appears from the magistrate's reasons for judgment, which I shall quote fully later, that his Worship misread the complaint as ``acting in the execution of their duty,'' and then treated that as having the same meaning as the phrase in the section. At all events, nothing was made of this verbal discrepancy before me so I shall not refer to it again, except to say that the concept of exercising a duty is a difficult one to grasp. Surely one exercises a

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right or a power and performs or discharges a duty.

The grounds set out in the notice of appeal raise a number of matters including the extent of the powers conferred by sec. 263, but in my view the resolution of the main point argued by Mr. Godsall, who appeared for the appellant, disposes of this appeal, whatever may be an exhaustive description of the ambit of the powers provided for by sec. 263. Mr. Godsall argued that the appellant, in exercising a common law right, could not properly be said to be guilty of obstructing the officers. The common law right being exercised was, he said, the right to obtain legal advice.

Here are the reasons the magistrate gave for his decision on the matter of this complaint, the second one before him:

``Now, in relation to the second complaint. That complaint is the complaint that on the 10th day of October, 1980, at Southport in the Magistrates Court District of Southport in the said State, John Thomas Swan did obstruct officers, namely Ronald John Bauer and Ross Graham Anderson, acting in the execution of their duty under the said Act, and the said James Ernest Scanlan further avers. And the averments are set out in the complaint. The standard of proof in the matter of that complaint before me is proof beyond a reasonable doubt, and the onus of proving the offence rests on the prosecution. The prosecution called two witnesses, Ross Graham Anderson and Ronald John Bauer. Anderson gave evidence that he is an Australian public servant employed in the Australian Taxation Office. He said that on October 10, 1980 he went with Mr. Bauer to Southport to see Mr. Swan. He says that he and Bauer interviewed Swan and that a tape recording of the conversation was made, and also three sheets of notes compiled of conversation that was not on the tapes. Exhibit 2 is a recording of the conversation that was taken. The defendant has elected to call no evidence and the prosecution version of the facts is not seriously challenged. Anderson and Bauer purported to act under authority given to them by the Commissioner under the provisions of sec. 263 of the Income Tax Assessment Act of 1936, as amended, which section states:

  • `The Commissioner, or any officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may make extracts from or copies of any such books, documents or papers.'

Exhibit 5 is a copy of their authority from the Commissioner and the defendant is charged under the provisions of sec. 232 with obstructing the aforesaid officers of the Australian Taxation Office. The evidence is clear that the two officers entered the office premises occupied by the defendant in the course of their business. The interview took place, as recorded by Anderson and Bauer, and that during the interview Bauer attempted to have access to a file on Mr. Swan's desk, and that Mr. Swan placed his hand on the file and prevented Bauer having access to the file. There is sufficient evidence upon which I could be satisfied beyond reasonable doubt that the defendant obstructed Anderson and Bauer in the discharge of their duty under the Act. I find that the officers acted within the scope of their authority and were authorised for the purposes of sec. 263 to have full and free access to the office occupied by the defendant. I find that it was not necessary for them to have a warrant to enter the premises, provided they did so for the purposes of the Taxation Act. Dr. Clyne, on p. 33 of his submission poses the question: `Does the Commissioner, or does he not, possess a right of search without warrant?' I find that sec. 263 clearly gives him that right and the answer is that he does have that right.
Rice v. Connolly, (1966) 2 Q.B. 414, has been submitted to me as a case of assistance to the defendant. In that case it was held on appeal that `obstructs' in sec. 51(3) of the Police Act, 1964, meant the doing of any Act which made it more difficult for the police to carry out their duty and `wilfully' meant, not only `intentionally' but also without lawful excuse. That while every citizen has a

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moral or social duty to assist the police, there was no such legal duty and the defendant, in refusing to answer the police constable's questions, as opposed to telling a lie, or to accompany him to the police station, was within his rights of common law, and that therefore the defendant had not wilfully obstructed the police constable, notwithstanding that the police constable was acting in the execution of his duty and that the defendant had made it more difficult for the constable to carry out his duty. However, there is a clear distinction between the case of Rice v. Connolly, where the defendant had refused to answer questions and the case before me where the evidence is that the defendant had placed his hand on a file, and prevented a taxation officer from inspecting the file. I cannot find any rule of law that allows a person to physically obstruct an officer engaged in a lawful search merely because the search may result in evidence being discovered that may incriminate the person concerned. The defendant has claimed that he wished to wait for legal advice before permitting the officer to have access to the books he wished to inspect. I could not be satisfied beyond a reasonable doubt that the defendant's claim was not genuine, and in such a case he is entitled to the benefit of the doubt. However, I am unable to find any authority that permits a person to obstruct an officer in the execution of his duty merely because that person wishes to obtain legal advice before allowing the officer to continue his investigation. In
Fischer v. Douglas (1978) Qd.R. 27, the Full Court of Queensland held that a person who does not, under sec. 16A(11)(a) of the Traffic Act 1949 to 1977, provide a specimen of his breath for analysis as prescribed by the provisions of the Act on the ground that he desires to wait to speak to his solicitor may, nonetheless, commit an offence against the subsection, as the reason for his failure in such a case is not necessarily one of substantial character within the meaning of sec. 16A(11)(b). The above case and the case before me are clearly distinguishable, but they are also similar in some respects. Fischer v. Douglas deals with a failure to perform an act or duty required by the Traffic Act, while the case before me deals with an act of obstruction. I find that the defendant's desire to obtain legal advice was not a sufficient excuse for his obstructing the taxation officer. On the whole of the evidence before me I find that I am satisfied beyond a reasonable doubt that the defendant is guilty of the offence set out in the complaint and I convict him of that offence.''

What the facts proved before the magistrate establish is that the officers, armed with the appropriate authority, confronted the appellant on the day in question demanding access to certain things and the appellant refused them access until he had had legal advice. The magistrate found that he could not be satisfied beyond a reasonable doubt that the appellant's claim, as he put it, was not genuine. That finding was, of course, an inference from the primary facts which the magistrate found had been proved and as such is open to scrutiny by an appellate Court in accordance with the principles explained in
Warren v. Coombes (1978-79) 142 C.L.R. 531. I have given a good deal of thought to the question whether that crucial conclusion by the magistrate was justified because there are some features of the case which might arguably lead one to reach a different conclusion, i.e. that the appellant's refusal was not made in good faith but rather for the purpose of delay alone.

In the result, however, my conclusion is the same as the magistrate's: in the circumstances of this case I am not satisfied beyond a reasonable doubt that the appellant acted otherwise than from a genuine desire to be advised as to his legal rights and duties before a further step was taken by the officers. The delay sought was of course merely a temporary respite and the request was, as I think, a reasonable one at a time when statutes are frequently amended and are complicated and officialdom pervades many areas of everyday life, I should add that it does not appear to me that the officers in question acted oppressively or offensively in any way although they were persistent.

Was the magistrate correct in deciding that the appellant was guilty of obstruction even though it was not established that the delay

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sought was for other than a genuine purpose which I have concluded was reasonable? The answer to that question appears to me to turn on the meaning to be given to the verb ``obstructs'' in this context. Is every denial of taxation officers in circumstances like these necessarily an obstruction? There could be a thousand and one reasons - professional, commercial or personal - why someone could deny access for a short time. Must the surgeon lay down his scalpel, the farmer stop milking his cow, the shopkeeper turn away a customer in the middle of a transaction, the mother stop feeding her child lest he or she be found guilty of obstructing taxation officials? Must professional duty, commercial exigency, and any other reasonable excuse, bow down before the stern inflexibility of this interpretation of the Income Tax Act?

The word ``obstructs'' and cognate words appear in the Acts of various Parliaments, and as one might expect many examples may be found in the books of judicial discussion of those words. I do not propose to compile a jejune catalogue of such pronouncements because when all is said and done the conclusion that must be reached on this subject is that of Lord Upjohn in
Jenkins v. Allied Ironfounders Ltd. (1970) 1 W.L.R. 304 at p. 315:

``My Lords, when considering whether something is an `obstruction' or not, it is no use trying to define by further language what is meant by that word, for it is a word in common and everyday use in the English language and is, in my opinion, thus incapable of further definition. Everyone is agreed that some limitation must be put upon the word but that limitation is itself incapable of definition. All one can do is to suggest tests by which to measure whether something is an obstruction or not.''

It would seem to me that in the context of sec. 232 a temporary denial of access on reasonable grounds falls short of being an obstruction. All the circumstances of the case must be taken into account. What is temporary and what is reasonable must be judged according to those circumstances, but in cases of this sort a short delay for the purpose of enabling the person from whom access is sought to obtain legal advice would appear to me generally to be reasonable. No hard and fast rule could be formulated, of course, because there could be cases where such a delay would not be reasonable.

The test, albeit a negative one, which I have suggested is contemplated by the use of the word ``obstructs'' in sec. 232, is then one of reasonableness. The fact that a common law right is relied on may, of course, be most relevant in determining whether the person in question has acted reasonably, but I am not persuaded that the test suggested by Mr. Godsall in his submission is correct. In my opinion it is not necessary, as Mr. Godsall's submission may imply, that there is evidence that a common law right was asserted before the issue I have been discussing can be said fairly to have been raised. There clearly could be denials on reasonable grounds which would not involve the assertion of a common law right. I have given some examples of such cases.

Conversely, there could be cases where the assertion of a common law right is unreasonable and amounts to obstruction. Mr. Godsall referred to Fischer v. Douglas, ex parte Fischer (1978) Qd.R. 27, which it was said that the right to obtain legal advice is a common law right (p. 31 per D.M. Campbell J. and p. 32 per Hoare J.). Assuming that that right exists it is of course not an absolute right. It may be limited or abrogated by Parliament (p. 32 per Hoare J.). There could be cases where the assertion of the suggested right is spurious and unreasonable and the conduct of the person asserting it is truly obstructive, just as in the Fischer case the desire to obtain legal advice was not found to be a ``reason of a substantial character'' for failing to provide a specimen of breath for analysis.

What I have just said is, I believe, consistent with the following analysis of sec. 263 by Murphy J. in
F.C. of T. & ors. v. ANZ Banking Group Ltd. 79 ATC 4039 at p. 4057; (1977-79) 143 C.L.R. 499 at pp. 543-544:

``The powers under sec. 263 enable the Commissioner to have full and free access. This is a very wide power. In
D'Emden v. Pedder (1904) 1 C.L.R. 91, the Full Court said:

  • `... where any power or control is expressly granted, there is included in

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    the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument, or other delegation of authority, and applies from the necessity of the case, to all to whom is committed the exercise of powers of government.'

This passage was referred to by Mr. Justice O'Connor in
The Jumbunna Coal Mine, No Liability & Anor. v. The Victorian Coal Miners' Association (1908) 6 C.L.R. 309 at p. 356.

Like all powers, it must be exercised in good faith, for the purposes for which it was conferred, and having regard to those affected by its exercise (see British
Equitable Assurance Company Limited v. Baily (1906) A.C. 35 at p. 42;
Isles v. Daily Mail Newspaper Ltd. (1912) 14 C.L.R. 193, per Isaacs J. at p. 202). In those cases, the expression used was `having regard... to the rights of persons affected'. I would not confine the requirement to `rights' in any strict sense and for that reason I omit any reference to `rights'. These implied limitations on the power in sec. 263 serve to safeguard the extremely important social value of privacy which must be balanced against the necessities of administration of the revenue laws. They moderate what would otherwise be a power capable of oppressive use. The Commissioner of Taxation is not only expected, but bound, to observe those limitations on the power.''

So, whatever the full extent of the powers conferred by sec. 263, it can at least be said that they are limited in the way referred to by Murphy J.

Mr. Morley, for the respondent, submitted that the most useful case for an understanding of sec. 232 is
Hinchliffe v. Sheldon (1955) 1 W.L.R. 1207. I find myself unable to agree with that submission.

In that case the appellant had been convicted of wilfully obstructing a policeman in the exercise of his duty, contrary to sec. 2 of the Prevention of Crimes Amendment Act, 1885. He appealed to the Divisional Court. The case against the appellant was that, by giving the alarm when he knew that police were outside licensed premises intending to go in and looking around, he gave the people in the premises the opportunity of delaying the police so that traces of any offence, if any offence was being committed, could be removed. Lord Goddard C.J., with whom the other members of the Court agreed, said this about the meaning of the word ``obstructing'' in the context of that case:

``Obstructing, for the present purpose, means making it more difficult for the police to carry out their duties. It is obvious that the defendant here was detaining the police by giving a warning; he was making it more difficult for the police to get certain entry into the premises, and the justices were entitled to find as they did, and therefore the appeal is dismissed.''

(p. 1210)

The facts of that case are not at all comparable with those of the present one: in Hinchliffe v. Sheldon the appellant had no genuine purpose for detaining the police. I do not think that Lord Goddard's definition of obstructing in the context of the Prevention of Crimes Amendment Act, 1885, is of any real help here for the reason referred to by Lord Upjohn in the passage from Jenkins v. Allied Ironfounders Ltd. (supra) to which I have referred.

In the result my conclusion is that the magistrate was wrong in concluding that on the facts as he found them to be the appellant was guilty of obstructing officers. The appeal is allowed. The conviction is quashed and the other orders made by the magistrate are set aside. I order that the respondent pay to the appellant his costs of and incidental to this appeal to be taxed.

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