Chew v R

173 CLR 626
107 ALR 171

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(Decision by: Deane J) Court:

Judges: Mason CJ, Brennan, Gaudron and McHugh JJ

Deane JDawson J
Toohey J

Judgment date: 3 June 1992

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Decision by:
Deane J

The detailed facts and the relevant statutory provisions are set out in the judgment of Toohey J. The primary question in the case is the relationship between the phrase "make improper use of his position" and the infinitives "to gain" and "to cause" in s 229(4) of the Companies (Western Australia) Code. That subsection reads:

An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.

Penalty: $20,000 or imprisonment for 5 years, or both.

Prima facie, the combination of the words "make use of [something]" and the words "to gain or to cause [something else]" conveys both a purposive and causative relationship between the two phrases. As a matter of ordinary language, a person has not made use of something to gain or cause something else if he or she did not intend to gain or cause that other thing at all. Nor has a person made use of something to gain or cause something else if he or she did not gain or cause that other thing at all. That being so, the phrase "make use of [a] position to gain or cause" something prima facie connotes the use of position in order to and in fact to gain or cause the particular thing. That is to say, the prima facie meaning of the relevant words of s 229(4) encompasses both purpose and result and it is a mistake to see the identification of the meaning of the words as necessarily requiring a choice between a purposive and a causative connotation.

The offence created by s 229(4), being punishable by imprisonment for five years and/or a fine of $20,000, is a serious one. It is a well-settled rule of construction that the words of a statute creating such an offence must, unless they are unambiguous, be construed in favour of the subject. In the context of that rule of construction, there is no justification for reading down the prima facie meaning of the words of s 229(4) so as to exclude one or other of the purposive and the causative elements which are prima facie involved in the notion of using a position to gain an advantage or cause detriment. In that regard, it appears to me to be clear that the comma after "employee" in s 229(4) cannot, in the context of s 229(3) which was clearly intended to have a parallel operation and which contains no corresponding comma, properly be seen as evidencing a legislative intent to exclude any requirement that the use of position be for the purpose of gaining or causing a relevant advantage or detriment. The comma can be readily explained by the fact that the rest of the subsection consists of two alternative groups of words which are equally dependent upon the preceding words.

It follows from what has been said above that an accused is not, in my view, guilty of an offence against s 229(4) unless he has made use of his position both for the purpose and with the result of gaining or causing a specified advantage or detriment.

The difference between the construction which I would give to s 229(4) and the construction which Mason CJ, Brennan, Gaudron and McHugh JJ give to the subsection is that their Honours consider that the words "make improper use of his position... to gain... or to cause" in s 229(4) do not connote a requirement of result as well as purpose. That difference in the construction of the subsection does not preclude my agreement with the reasoning which leads their Honours to conclude that no case has been established for setting aside the appellant's convictions "on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice" within the meaning of s 689(1) of the Criminal Code (WA). As the extracts from the learned trial judge's summing up which their Honours set out make plain, his Honour clearly instructed the jury that they had to be satisfied not only that the appellant had the designated purpose in using his position to make the relevant payment but also that "the payment... caused an advantage to himself and caused a detriment to GCA " (emphasis added). That direction, reflecting the approach adopted by the parties at the trial, was in error in that it required that the payment caused both an advantage to the appellant and a detriment to the corporation whereas s 229(4) requires only that it caused one or the other. In that respect, however, his Honour's directions were unduly favourable to the appellant.

The appeal should be dismissed.