Yates v. Wilson & Ors

Judges:
Woodward J
Morling J
Einfeld J

Court:
Full Federal Court

Judgment date: Judgment handed down 23 March 1989.

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Woodward and Morling JJ.

This is an appeal from a decision of a Judge of the Court dismissing an application seeking the review of a decision of a magistrate to commit the appellant for trial upon a number of charges brought under sec. 29A(2) of the Crimes Act 1914.

When the application came before the trial Judge a submission was made on behalf of the respondents that the Court did not have jurisdiction to deal with the application. A further submission was made that even if the Court had jurisdiction it should decline to exercise it as a matter of discretion because, so it was argued, to exercise it would be to interfere with the due processes of the criminal law in respect to the charges. His Honour held, in reliance upon
Lamb v. Moss (1983) 49 A.L.R. 533 that the Court had jurisdiction to grant the relief sought. He further held that he should not decline to exercise jurisdiction on discretionary grounds. However, he was of the opinion that the magistrate had not erred in committing the appellant for trial and, accordingly, dismissed the application.

The appellant appeals against his Honour's decision and the respondent contends that his Honour was in error in finding that he had jurisdiction to deal with the application and in deciding to exercise that jurisdiction.

When the matter was argued before his Honour the parties furnished him with an agreed summary of the charges and of the evidence given before the magistrate in support of them. The following account of the evidence is taken from that summary:

• The appellant was associated with a company known as Sundance Amusements Systems Pty. Limited (``Sundance''). That company was originally known as Game Channel (Aust.) Pty. Limited and changed its name to Sundance in February 1982. Sundance was in the business of importing parts for video games and slot machines.
• The appellant was not at any time a director or shareholder of Sundance but it was claimed that he ran the company. In late January 1982 Wandabar Customs Agency Pty. Limited (``Wandabar'') approached Sundance to become its customs agent. Mr Michael Bowen was employed by Wandabar. He said he spoke to the appellant in late 1982 and the appellant told him that Sundance had a registered sales tax number being No. 2446921. Wandabar received a letter dated 1 November 1982 from Sundance, signed by Mr M. Yates (the brother of the appellant) authorizing Wandabar to act for Sundance and quoting the said sales tax number as being that of Sundance. Wandabar proceeded to act as customs agent for Sundance and during the period from November 1982 to February 1985 cleared 65 individual shipments on behalf of Sundance quoting the sales tax number to the Australian Sales Tax Service on each occasion. The effect of the quotation of the sales tax number was that sales tax, which was alleged would have been payable, was not charged by the Customs authorities at the point of entry. Sundance was not the holder of the aforementioned sales tax registration number. This number was in fact held by a company known as ATS Amusements Pty. Limited (``ATS''), another company with which the appellant was involved.
• Mr Michael Cousens, an employee of the Australian Taxation Office, gave evidence to the magistrate that he had spoken to the appellant about sales tax in relation to ATS and Sundance in December 1981. Cousens said that he had told the appellant that if Sundance was going to manufacture machines it would need to be registered for sales tax purposes.
• There was also evidence before the magistrate that the appellant was

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  ATC 4496

  interviewed by taxation officials on 8 July 1985, that he told them that he had the day-to-day management of Sundance, but that he could not recall ever quoting the sales tax number. There was evidence that the appellant told the officials that he did not fully understand the documentation he received from Wandabar, and that he just authorised payment of the amount requested which was in the form of a lump sum. The documents used to enter the goods for home consumption revealed that the lump sum requested by Wandabar in relation to each shipment included an amount for import duty but did not include an amount for sales tax.
• Assessments for sales tax were made in relation to the 65 shipments in the sum of $214,922.56 and, in addition, penalty tax has been imposed.

The only matter argued by the appellant's counsel in support of the appeal was the question whether his Honour was correct to find, as he did, that the charges laid against the appellant disclosed offences under sec. 29A(2) of the Crimes Act, which is in the following terms:

``29A(2) Any person who, with intent to defraud, by any false pretence, causes or procures any money to be paid, or any chattel, valuable security or benefit to be delivered or given, by the Commonwealth or by any public authority under the Commonwealth to any person, shall be guilty of an offence.''

The charges laid against the appellant were in similar form. A typical charge was as follows:

``That Franklin [ sic ] Ernest Yates did through an agent Wandabar Customs Agency Pty. Limited on or about (date) at Sydney in the State of New South Wales with intent to defraud by false pretence, namely that the company Sundance Amusement Systems Pty. Limited was the holder of a sales tax certificate of registration no. 2446921, cause a benefit to be given by the Commonwealth to the company Sundance Amusement Systems Pty. Limited, namely the non levy by the Australian Customs Service, a department of the Commonwealth, acting on behalf of the Australian Taxation Office of Sales Tax totalling $(amount) due and payable to the Commonwealth by the said company on certain goods, being (goods) at the time of the importation of the said goods into Australia.''

Counsel for the appellant submitted that the evasion of a liability to pay sales tax cannot be said to result in the conferral of any benefit by the Commonwealth for the purposes of sec. 29A(2). He argued that sec. 29A(2) was a provision dealing with the offence of false pretences and since at common law it is of the essence of the offence of false pretences that ownership of property passes from the victim to another person, conduct was not caught by sec. 29A(2) if it did not result in the transfer of an item of property, or something in the nature of property, from the Commonwealth to some person. Section 29A(2), so it was submitted, only has application where the Commonwealth, by some positive act, makes a payment of money to a person, or delivers a chattel or valuable security to him, or gives him a benefit. It was put that the subsection has no operation in a case where a false pretence results only in the Commonwealth failing to take action, such as failing to levy or collect sales tax in circumstances where there is a person liable to pay it. Even if, as a result of such a failure, a person receives a benefit, it cannot be said, so it was argued, that such a benefit is given by the Commonwealth within the meaning of sec. 29A(2).

We accept the argument of counsel for the appellant that in approaching the construction of sec. 29A(2) we should have regard to the general principle of statutory interpretation that there is a presumption against alteration of common law doctrines (see
Potter v. Minahan (1908) 7 C.L.R. 277 ) and that clear and unmistakable words will be required for the abrogation of a long-standing rule of law (see
Black-Clawson International Limited v. Papierwerke Waldhof-Aschaffenburg A.G. (1975) A.C. 591 at p. 650 , per Lord Simon of Glaisdale ). But, as his Lordship observed in that case:

``After all, the first and most elementary (and, I would add, salutary) rule of construction is that the words of a statute must be read in the most natural sense which they bear in their context.''

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ATC 4497

We think the words of sec. 29A(2) should be given the meaning which they fairly bear having regard to their context in the Crimes Act. Section 29A is one of a series of sections in Pt II of the Act dealing with offences against the Government. The extension of sec. 29A(2) to cover conduct which, inter alia, ``causes or procures any... benefit to be... given, by the Commonwealth... to any person'' was no doubt occasioned by the legislature's appreciation of the expansive range of financial and other benefits provided by the Commonwealth and its instrumentalities. We were informed from the Bar table that, so far as the researches of counsel have revealed, no other legislation making provision for an offence of obtaining money or property by false pretences makes reference, in terms, to the obtaining of a ``benefit'' by a false pretence. In these circumstances we think that the correct approach to the construction of sec. 29A(2) is to construe it according to the ordinary meaning of the words used in it. It would be wrong to limit the ambit of its operation by reference either to the common law offence of false pretences or to decisions on other statutes differently worded.

As is stated in the agreed summary of facts, the effect of the quotation of the sales tax number was that sales tax, which would otherwise have been payable, was not charged by the Customs authorities at the point of entry of the goods. The crucial question is whether the appellant, by falsely pretending that Sundance was the holder of the specified sales tax certificate, caused or procured a benefit to be given by the Commonwealth.

The effect of the conduct in which the appellant is alleged to have engaged was to relieve or excuse Sundance from the obligation to pay sales tax at the time it imported the goods. We think this course of events resulted in Sundance obtaining a benefit. We see no sound reason for giving to the word ``benefit'' in sec. 29A(2) such a narrow meaning as to exclude the financial advantage it obtained by the non-collection of the sales tax. It was a benefit to Sundance that it was not required to pay the sales tax, albeit temporarily: cf.
Matthews v. Fountain (1982) V.R. 1045 at p. 1049 .

The question remains whether it can be said that the benefit which Sundance received was ``given'' by the Commonwealth. We see the force of the appellant's argument that sales tax is an exaction of tax or money in accordance with the provisions of the sales tax legislation and that when tax is payable but not collected there is no transfer of a benefit by the Commonwealth to another person. But we think that the argument fails to take sufficient account of the ordinary meaning of the words ``benefit'' and ``given'' and to the context in which they appear in sec. 29A(2). If it is correct to say, as we think it is, that non-collection of the sales tax by the Commonwealth resulted in a benefit being obtained by Sundance, it is difficult to avoid the conclusion that the benefit was given by the Commonwealth. We do not think there is any requirement in sec. 29A(2) that the Commonwealth or someone on its behalf should be consciously aware at the time a benefit is given that it is, indeed, being given. The word ``given'' is a word of wide import and we think its meaning in sec. 29A(2) is wide enough to extend to the unwitting provision of a benefit by the Commonwealth in consequence of a false pretence made to it.

We were referred to provisions in the sales tax legislation making it an offence not to comply with the requirements of the legislation. It was argued that the existence of these specific provisions should be taken as evidence of a legislative intention that sec. 29A(2) should have no application to the conduct alleged against the appellant in this case. However, it is not unusual for conduct which is made punishable by one Act to also fall within the class of conduct made punishable by another Act. We therefore do not think that this is a sufficient reason for construing sec. 29A(2) so as to exclude from its operation conduct which is otherwise caught by it.

Accordingly, we think his Honour was correct to dismiss the application. It is therefore unnecessary for us to consider the respondent's arguments that the Court did not have Jurisdiction to deal with the application and that, even if it did, it should have declined to exercise the Jurisdiction as a matter of discretion.

The appeal should be dismissed with costs.