The Queen v Cushion[1997] QCA 380

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 306 of 1997

Brisbane

[R. v. Cushion; ex parte Cth. DPP]

THE QUEEN

v.

JOHN IAN CUSHION

REFERENCE BY COMMONWEALTH

DIRECTOR OF PUBLIC PROSECUTIONS

UNDER S. 669A OF THE CRIMINAL CODE

McPherson J.A.

Williams J.

Cullinane J.

Judgment delivered 24 October 1997

Separate reasons for judgment of each member of the Court; each concurring as to the answers.

IN ANSWER TO THE QUESTIONS IN THE REFERENCE UNDER S. 669A OF THE CRIMINAL CODE:

1. NO.  INTENTION TO DEFRAUD IS NOT AN ELEMENT IN A PROSECUTION FOR AN OFFENCE UNDER SECTION 72 OF THE CRIMES ACT 1914.

2. IT IS UNNECESSARY TO ANSWER QUESTION 2.

3. IT IS UNNECESSARY TO ANSWER QUESTION 3.

4. NO.  THE PROVISIONS OF SECTION 72 OF THE CRIMES ACT 1914 ARE NOT RESTRICTED ONLY TO THE PROPERTY INTERESTS OF THE COMMONWEALTH.

CATCHWORDS: CRIMINAL - REFERENCE UNDER S. 669A - SECTION 72 CRIMES ACT 1914 (Cth)  - Intention to defraud - Intention to defraud the Commonwealth - Intention to defraud proprietary interest of the Commonwealth. R. v. Ghosh [1982] Q.B. 1050; R. v. Laurie [1987] 2 Qd.R. 762; R. v. Lawrence [1997] 1 V.R. 459; R. v. Maher [1987] 1 Qd.R. 171

Counsel:  Mr M.S. Weinberg Q.C., with him Mr J.C. Parker, for the Commonwealth Director of Public Prosecutions

Mr G. Long as amicus curiae

Solicitors:  Commonwealth Director of Public Prosecutions

Legal Aid Queensland as amicus curiae

Hearing Date:  14 October 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 24 October 1997

This is a reference to this Court of a point of law arising at the trial of John Ian Cushion, who at relevant times was a detective sergeant in the Australian Federal Police, on an indictment which in count 1 charged him with having committed an offence under s. 72 of the Crimes Act 1914 (Cth).  The trial having proceeded before a judge and jury in the District Court at Brisbane, the judge at the conclusion of the prosecution case entertained a defence submission that there was in law no case for Cushion to answer.  His Honour acceded to the submission and, in accordance with his direction, the jury returned a verdict of not guilty on count 1.  Although Cushion is not a party to this reference, it is convenient to refer to him here as the respondent.

The charge on which the respondent had been arraigned at trial was that between 6 and 13 September 1993 he, being a Commonwealth officer, namely a member of the Australian Federal Police, had fraudulently and in breach of his duty made a false entry in a document.  The document was a search warrant reported to have been granted by a named justice of the peace, and the entry made in it was the insertion of the date 30 July 1993.  That entry was alleged to be false because the search warrant had not issued on that date.

The question referred to this Court is one of law that depends on interpretation of s. 72 of the Crimes Act.  To that extent, the facts do not directly matter; but, for an understanding of  the context in which the question arises, it is necessary to say something about them.  What happened, or what the prosecution set out to prove at the trial, was that the respondent had reason to suspect that a suitcase would be arriving at the Brisbane Transit Centre on a bus travelling from Surfers Paradise on 29 July 1993; and that the suitcase, which was destined for Melbourne to which the bus was going, contained drugs imported in contravention of the Customs Act 1901.  This suspicion was confirmed by a search of the suitcase carried out or arranged by the respondent at the Transit Centre on that date, and in due course a man named March was charged in Melbourne and pleaded guilty to a drugs offence in connection with the suitcase or its contents.

It was in the course of preparations for that prosecution that the offence now under consideration was alleged to have been committed by the respondent.  In about September 1993, he was asked to provide the warrant which had been used as the basis for the search made in Brisbane.  It appears now to be accepted that, in the circumstances, no search warrant was or would have been needed in order to conduct the search of the suitcase.  However, on receiving that request for it the respondent believed that it was required, and he set out (or so it was alleged) to make it appear that a warrant had in fact been obtained.  When later interviewed in 1994, he claimed that the justice of peace had by telephone authorised the issue of the warrant on 29 July 1993, and that it was signed and formally issued on the following day, which is the date that appears on the document as the date of its issue.  The warrant does in fact appear to have been signed by the justice of the peace in question, but not until about 7 September 1993.  The entry in it alleged to be false was the date 30 July 1993, which had been inserted, or so it was averred, not on that date but in September 1993, the warrant having been “backdated” to 30 July 1993.

The particular provision of s. 72 of the Crimes Act under which the respondent was charged was s. 72(a); but, in order to appreciate its effect, it is helpful to set out the whole of the section.  It is in the following terms:

“72. Any person who, being a Commonwealth officer, fraudulently and in breach of his duty:

1. makes any false entry in any book, record or document;

2. omits to make any entry in any book, record or document;

3. by act or omission falsifies any book, record or document;

4. destroys or damages any book, record or document;

5. furnishes any false return of any property; or

6. omits to furnish any return of any property;

shall be guilty of an indictable office.

Penalty: Imprisonment for 7 years.”

The question for decision on this reference concerns the meaning of the word “fraudulently” in s. 72, which, it was submitted on behalf of the Director, meant no more than “dishonestly”.  That the respondent was a Commonwealth officer who had acted “in breach of his duty” was, we were informed, never in dispute.  In any event, it may be accepted that the entry in the search warrant that was said to be false was one that was made or caused to be made by the respondent in breach of his duty.  The provisions of ss. 9(a) and 28 of the Australian Federal Police Act 1979, read with Forms 1 to 3 of the Australian Federal Police Regulations are sufficient to support such a conclusion.  It is a matter that merits specific mention here only because, at one stage of the submissions before us, the expression “in breach of duty” in s. 72 was said to bear on the meaning of the word “fraudulently” in that section.  The submission was that to construe the word fraudulently as “dishonestly” would make the reference in that section to breach of duty unnecessary because it was inconceivable that a Commonwealth officer could act in breach of duty yet honestly.  Making a false entry in a search warrant, or causing it to be made, is  plainly a breach of the duty under Commonwealth law of a member of the Australian Federal Police, as well as being a contravention of his obligation sworn to or affirmed under the Regulations to act faithfully in the discharge of those duties according to law, as to which, see Forms 2 and 3 in Schedule 4 to those Regulations.  In the present case, therefore, the duty breached is for the most part statutory in origin.  In many other cases involving Commonwealth officers, however, the duty may well be little more than expressly or impliedly contractual, and there is no reason to assume that a breach of such a contractual duty will invariably amount to an act of dishonesty.  An officer who, in making a false entry in a record, acts carelessly, which may well commit a breach of duty, although not doing so dishonestly.

Restricting the offence created by s. 72 to occasions on which a Commonwealth officer was acting in breach of his duty may have been intended to exclude from its ambit cases in which he was acting in a private capacity, so as to ensure that the necessary nexus with Commonwealth legislative power was maintained.  In moving in the House of Representatives the second reading of the Bill which became the Crimes Act 1914, the Federal Attorney-General Mr W.M. Hughes said that all the Bill did was “to give the Commonwealth power to deal with offences against itself, or in relation to those powers which it exercises”. The measure, which he said did not “except in very few cases” create new offences, was he explained based on the Queensland Criminal Code and on the English draft code of 1880, and that the Canadian Code and Pennefather’s Code of South Australia had “also been looked at in connexion with the drafting of this Bill”.  See (1914), vol. 75 Parliamentary Debates, at 265. 

The relevant provision of the Queensland Code is s. 441, which in the form in which, as enacted in 1900, it then appeared, was as follows:

“441.  Any person who, being a clerk or servant, or being employed or acting in the capacity of a clerk or servant, does any of the acts following with intent to defraud, that is to say, -

1. Destroys, alters, mutilates, or falsifies, any book, document, valuable security, or account, which belongs to or is in the possession of his employer, or has been received by him on account of his employer, or any entry in any such book, document, or account, or is privy to any such act;  or

2. Makes or is privy to making any false entry in any such book, document, or account; or

3. Omits or is privy to omitting any material particular from any such book, document, or account;

is guilty of a crime and is liable to imprisonment with hard labour for seven years.”

The marginal note to s. 441 was then “Fraudulent false accounting”.  The references to clerk or servant, and to acting in that capacity, have since been omitted from s. 441, which in its current form has been confined, or very nearly so, to making an entry in a “record” as defined, and which now carries the section heading “Fraudulent falsification of records”.  In its initial form, the origins of s. 441 can be traced to and through s. 4 of The Criminal Law Amendment Act of 1894 (Qld.) to s. 1 of the Falsification of Accounts Act 1875; 38 & 39 Vict. c.24, commonly known as Lopes’s Act.  According to Kenny’s Outlines of Criminal Law, 16th ed. §323, the genesis of the statute was the difficulty of proving “actual appropriation” in cases of embezzlement by clerks “even when it was clear that money had been received by them, and detained without their making any entry or other acknowledgment of the receipt”.  See also Russell on Crime, 12th ed., vol. 2, at 1128, where the further observation is added that the Act was “solely concerned with falsification of the account”.  This accords with the recital to the Act itself, which describes it as being expedient to amend the law so as to prevent falsification by clerks and others of their employers’ accounts, books, writings or documents.

This survey of the historical origins of the legislation is relevant to the submission of Mr Long, who appeared for the respondent at the trial and in this Court as amicus curiae, that s. 72 of the Crimes Act was designed to protect the interests, and perhaps only the proprietary interests, of the Commonwealth.  A submission to that effect found favour with the learned judge at the trial below, who in the end appears to have concluded that, in order to constitute an offence under the section, it was necessary that there be economic detriment to the Commonwealth, or perhaps to someone else.  It was because of his Honour’s decision to that effect that the jury were directed to acquit the respondent.

Something akin to conduct resulting in deprivation of money or property appears to have been present in most of the cases in which the English Act or its statutory equivalents elsewhere have been considered.  In R. v. Drewett (1904) 69 J.P. 37, the conviction of a hotel manager was set aside because at her trial the chairman of quarter sessions had directed the jury that they could find her guilty if she had falsified her accounts either “in order to help herself out of financial difficulties, or for the purpose of concealing from the directors the true condition of the company, or misleading the shareholders or the public as to its financial soundness ...”.  Lord Alverstone C.J. considered the introduction of the last two of these alternatives, which he said were “consistent with innocence”, to be “objectionable” (69 J.P. 37, 39).  The other judges of the Court for Crown Cases Reserved agreed, Wills J. adding that one thing that was always to be kept before the jury was “whether the conduct of the accused person is possibly consistent with honesty, or ... must have been dishonest and fraudulent”.  The accused in that case had given evidence that she had unilaterally lent money of her own to her employer company, and had falsified the accounts only in the course of repaying herself.  If something in the nature of economic deprivation is an essential ingredient of the offence, it is evident that, in the course of time, the requirement has been greatly attenuated.  In Wines (1953) 37 Cr. App.R. 197, the manager of a department of a co-operative society admitted to having falsified accounts, but claimed he had done so with the object of making the gross profit of his department appear higher than it really was, in order to avoid being dismissed from his employment.  The Court held that the conviction should stand, Lord Goddard C.J. saying (37 Cr.App. R. 197, 199-220) that even if the manager’s only object was to induce the society to keep him in their employ, and pay him his wages, there was nonetheless an intention to defraud sufficient to sustain the conviction.   It is possible that the respondent in the present case was actuated by some not altogether dissimilar motive.

In the English Act of 1875, and in the original as well as the current version of s. 441 of the Queensland Criminal Code, it is an express requirement that the falsification be committed or carried out “with intent to defraud”.  The courts have insisted that that ingredient of the offence must not only be averred and established by evidence but left for the jury to determine.  See, for example, R. v. Drewett (1904) 69 J.P. 37; R. v. Brenner (1922) 38 CCC 92 (Ontario); and R. v. Abberton [1931] V.L.R. 238.  There has, however, been some divergence of judicial opinion as to the meaning of the expression both in this and other but possibly comparable contexts.  In R. v. Jackson (No. 2) [1976] Qd.R. 177, the Court of Criminal Appeal held that an intention specifically to defraud the employer, or some person acting on behalf of or in the interest of the employer of the accused, was not an essential element of the offence under s. 441 in its original form.  A different view of the corresponding section 424 of the Western Australian Criminal Code was adopted in Tan v. R. [1979] W.A.R. 149, but without adverting to the Queensland decision or, it would seem, to s. 643 or its equivalent.  Section 643 of the Queensland Code, which, so far as relevant here, corresponds to s. 2 of the English Act of 1875, provides that, on the trial of a person charged with an offence of which an intent to defraud is an element, it is not necessary to prove an intent to defraud a particular person.  See R. v. Jackson (No. 2) [1976] Qd.R. 177, 179-180.

In considering some other but cognate offences of which intent to defraud is an element, there has been a tendency to resort to the test laid down by Buckley J. in Re London & Globe Finance Corporation Ltd. [1903] 1 Ch. 728, 732, which is that “to defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury ... to defraud is by deceit to induce a course of action”.  It was this judicial “definition” that was adopted in upholding the conviction in Wines (1953) 37 Cr. App.R. 197; and also, but with some qualification, in Welham v. D.P.P. [1960] A.C. 103, 126-128.  These and other decisions were relied on by Mr Long as supporting the decision below, although it may be noticed that, if intent to defraud comprehends inducing a course of conduct, it may be that the respondent’s act of falsification of the date of the search warrant had an effect of that kind.  It may possibly have induced the prosecution to proceed with the drugs charge against March or persuaded him to plead guilty to it.  No doubt that is one reason which led Mr Long to submit that, in order to constitute an offence under s. 72, some detriment to the Commonwealth or its proprietary interests is essential.

The difficulty with that submission is that the expression “with intent to defraud” does not appear anywhere in s. 72 of the Crimes Act, where its place is taken by the word “fraudulently”. In that respect it diverges from s. 441 of the Queensland Criminal Code, as well as from its statutory antecedents and their derivatives in other jurisdictions.  There is nothing to show the reason for the divergence, although it may also be noted that the Crimes Act omits the broadening definition of “intent to defraud” continued in s. 643 of the Code and s. 2 of the English Act of 1875.  If is, of course, possible that, in drafting s. 441, the provisions of s. 643 were simply overlooked, although that seems unlikely in view of the fact that it was noted to s. 441 in Wilson & Graham’s Criminal Code of Queensland published in 1900.  Mr Long drew attention to the statutory context in which s. 72 appears, which is a congeries of provisions concerning offences generally of a proprietary character; but they are all in Part VI of the Act, which is headed Offences by and against Public Officers. By no means all of them relate to offences with respect to Commonwealth property.  Nor is it relevant that the respondent might have been or even was prosecuted for some other form of offence under the Act.  In the end, therefore, it becomes necessary to determine the meaning of “fraudulently” in s. 72 without being unduly influenced either by s. 441 of the Queensland Criminal Code in its original form or the English or other legislation in which the expression employed is “with intent to defraud”.  It ought not to be assumed that one is synonymous with the other; and at all events there is no reason for importing into it a requirement that would restrict it to affecting property interests of the Commonwealth.

The word “fraudulently” is, unfortunately, another word that is capable of more than one meaning or shade of meaning depending on the context in which it is used.  In Jackson v. The Queen (1976) 134 C.L.R. 42, 45, Barwick C.J. said that s. 441 dealt with “the making of false entries by a servant in the master’s books of account with intent to defraud, that is to say fraudulently”.  Mr Long seized on this as establishing the equivalence of the two expressions.  However, if  “fraudulently” has the broader meaning of the two, it may not serve his interest to rely on authority showing that “intent to defraud” has an equally broad meaning.  He also referred to Kastratovic (1985) 19 A. Crim. R. 28, 30-31, 38, where the judgments of King C.J. and White J. show a disposition to equate “fraudulently”, with “intent to defraud”,  as having, as King C.J. stated it (at 31), “an intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded”.  That is itself perhaps wide enough to encompass the respondent’s intent in the present case.

On the other hand, there is a good deal of authority to show that “fraudulently” in legislation creating statutory offences is often used to mean no more than “dishonestly”, and that it is not, or not necessarily, confined in meaning to depriving someone of a right or advantage.  Use of  “fraudulently” in English criminal law extends back over many centuries, as can be gathered from a passage in the submissions of counsel in Scott v. Metropolitan Police Commission [1975] A.C. 819, 830 C-G, to which Mr Weinberg Q.C. referred us.  That case concerned the common law offence of conspiracy to defraud; and, in considering the meaning of “defraud” in that and in various statutory contexts, Viscount Dilhorne appears to have accepted ([1975] A.C. 819, 836-837) that “fraudulently” was ordinarily to be equated with “dishonestly”.  On the point in issue in that case, Lord Diplock was content to accept ([1975] A.C. 819, 841) that “dishonesty of any kind is enough”.  A similar approach was adopted in R. v. Maher [1987] 1 Qd.R. 171, in relation to the offences of conspiracy to defraud under s. 86 of the Crimes Act and s. 430 of the Criminal Code.  The Court of Criminal Appeal there accepted that “what the law looks to in searching for fraudulent intent is prejudice to some person” as a consequence of giving effect to the conspiratorial agreement.  If intent to cause prejudice to someone is sufficient under of s. 72, it is, for reasons already suggested, surely capable of being discovered in the acts here alleged to have been carried out by the respondent.  Deliberately falsifying an entry in a search warrant would ordinarily be done with a view to prejudicing someone.

Probably, however, the strongest authority in favour of Mr Weinberg’s submission is the decision in R. v. Glenister [1980] 2 N.S.W.L.R. 597, where the Court of Criminal Appeal had occasion to consider the meaning of “fraudulently” in a charge under s. 173 of the Crimes Act 1900 (NSW) against a company director of fraudulently applying property of the company to a use or purpose other than the use or purpose of that company.  The Court, comprising Moffit P., Glass J.R. and Nagle C.J. at C.L., having first undertaken a review of the use of the ingredient “fraudulently” in statutory offences in the past, concluded ([1980] 2 N.S.W.L.R. 597, 604) that “the course of judicial decision in the hundred years or so since these new statutory offences were created has assigned to the term ‘fraudulently’ a meaning interchangeable with ‘dishonesty”.  By “these new statutory offences” their Honours were referring to or including false pretences; embezzlement by clerks and servants; fraudulent disposal of property by trustees; fraudulent conversion by bailees; and similar offences.  In addition, their Honours went on ([1980] 2 N.S.W.L.R. 597, 605) to warn against the use of any language which introduced “deprivation” in a discussion of the offence under s. 173.

As has already been mentioned, the English Act of 1875 was passed in order to extend the offence of embezzlement by clerks or servants in cases where it was not possible to establish actual appropriation of money of the employer.  In England the statutory offence so created was, before its replacement by s. 17 of the Theft Act 1968, traditionally referred to as fraudulent false accounting; but, as appears from the provisions of s. 1 of that Act and of s. 441 of the Queensland Criminal Code, it was far from being restricted to accounting but extended to books, records and documents of any kind.  In its present form, s. 441 of the Queensland Criminal Code, as both its language and the new heading to the section suggest, now appears to be directed simply at the fraudulent falsification of records.  In that respect, it may be an instance of “borrowing back” from s. 72 of the Crimes Act, of which it was originally the progenitor, while retaining expression “with intent to defraud” where s. 72 uses the word “fraudulently”.

Subject to that difference, the practical result appears to have been to convert what in each instance was initially an extension of the offence of embezzlement into a more general offence of falsifying records.  The ease with which records, many of which are nowadays computerised, may now be falsified may make that development not unwelcome; but it is capable of producing a form of offence which is very wide indeed: cf. the definition of “documents” in s. 25 of the Acts Interpretation Act 1901 (Cth.).  The antidote to excess, according to Mr Weinberg Q.C., lies in the word “fraudulently”, which he submitted means “dishonesty” in the sense in which that expression was explained in R. v. Ghosh [1982] Q.B. 1053, and applied in R. v. Maher [1987] 1 Qd.R. 171, 185-188; R. v. Laurie [1987] 2 Qd.R. 762; and R. v. Lawrence [1997] 1 V.R. 459, 469-471; that is, stating it in compendious form, acting with a conscious disregard for the community standard of honesty.  Even so, some not altogether unusual actions of employees, such as deliberately falsifying an entry recording the time of arrival at work, would appear to be covered by s. 72, which, it may be recalled, provides a maximum penalty of imprisonment for seven years.  However, conduct of that particular kind has probably always been, at least potentially, within the scope of s. 72 of the Crimes Act or s. 441 of the Queensland Code, irrespective of whether the expression used was “fraudulently” or “with intent to defraud”.

We were informed that the applicability, to a charge of conspiracy to defraud the Commonwealth, of the test of dishonesty adopted in R. v. Ghosh is presently under consideration by the High Court in Peters v. The Queen (M6/1997), which was heard on 29 May 1997.  On one view, it might be prudent to defer a decision on this reference until judgment in that matter is delivered; but, apart from other objections to that course, a decision on “fraudulently” in s. 86(2) of the Crimes Act will not necessarily determine the meaning of the same word in s. 72; and, in any event, the questions posed on this reference do not call for a comprehensive definition of that word in s. 72; but rather for a decision that the meaning ascribed to it by the judge at the trial was in law not correct.

Those questions are as follows:

1. Is an intention to defraud an element in a prosecution for an offence under section 72 of the Crimes Act 1914?

2. If “Yes” to Question 1, is the intention to defraud restricted to a defrauding of the Commonwealth?

3. If “Yes” to Question 2, must the intention to defraud the Commonwealth be an intention that the Commonwealth act to its detriment with respect to its property interests?

4. If “No” to Question 1, are the provisions of section 72 of the Crimes Act 1914 restricted only to the property interests of the Commonwealth?

Consistently with the reasons given here, those questions should be answered as follows:

1.  No.  Intention to defraud is not an element in a prosecution for an offence under section 72 of the Crimes Act 1914.

2.  It is unnecessary to answer Question 2.

3.  It is unnecessary to answer Question 3.

4. No.  The provisions of section 72 of the Crimes Act 1914 are not restricted only to the property interests of the Commonwealth.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 306 of 1997

Brisbane

Before  McPherson JA

Williams J

Cullinane J

[R v. Cushion; ex parte Cth. DPP]

THE QUEEN

v.

JOHN IAN CUSHION

REFERENCE BY COMMONWEALTH DIRECTOR

OF PUBLIC PROSECUTIONS

UNDER S. 669A OF THE CRIMINAL CODE

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 24 October 1997

The background to this reference, and all material facts, are fully set out in the reasons for judgment of McPherson JA, which I have had the advantage of reading.  I fully agree with all that his Honour has said, but I wish to add some brief observations of my own.

There are, it appears to me, two questions raised by the reference.  The first is as to the ordinary meaning of the word “fraudulently” as used in s. 72 of the Crimes Act, and the second is whether the context in which s. 72 is found affects the construction of that term.

The essential meaning of “fraudulent” is “guilty of or addicted to fraud; deceitful, dishonest” (Shorter Oxford English Dictionary).  In Butterworth’s Australian Legal Dictionary “fraud” is defined as “an intentional dishonest act or omission done with the purpose of deceiving.”  In its everyday usage, and frequently when used in the context of the criminal law, fraudulently simply means dishonestly; it does not necessarily carry the connotation of the intentional deprivation of someone’s property rights.

At common law it was recognised that it was rape for a man to have carnal knowledge of a woman where her apparent consent had been induced by a wilful and fraudulent representation made by the male.  (R v. Flattery (1877) 2 QBD 410 and R v. Williams (1923) 1 KB 340).  That concept has been picked up in the definition of “rape” in s. 347 of the Criminal Code:  “Any person who has carnal knowledge of another person without that person’s consent or with that person’s consent if it is obtained by ... means of false and fraudulent representations as to the nature of the act ...”  Used in that context the term “fraudulent” does not imply any adverse effect on property rights; it really means no more than dishonestly or with moral opprobium.

As McPherson JA has pointed out the relevant words of s. 72 are extremely wide and in the absence of the adverb “fraudulently” many harmless acts would have potentially serious criminal consequences.  For example, if the qualification were not there a Federal police officer who made a false entry on a workmate’s time sheet as a practical joke would commit an offence against the section.  Similarly, extreme carelessness resulting in a false entry being made in a document by a Commonwealth officer in breach of duty would result in an offence.

Those problems are avoided when moral opprobrium is introduced as an element into the offence by the use of the word “fraudulently”.

It is then necessary to consider whether or not that meaning of the term “fraudulently” must be displaced because of the context of s. 72, that is the place where it is found in the Crimes Act.  For the reasons given by McPherson JA I am not convinced the context requires the court to give the term “fraudulently” a construction requiring the presence of an intent to deprive the Commonwealth of some proprietary interest before the offence is established.

I agree that the questions should be answered in the way proposed by McPhersons JA.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 306 of 1997

Brisbane

Before McPherson JA

Williams J

Cullinane J

[R v. Cushion]

IN RE: JOHN IAN CUSHION

and

REFERENCE BY COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS UNDER S. 669A OF THE CRIMINAL CODE

REASONS FOR JUDGMENT - CULLINANE J

Judgment delivered 24 October 1997

I agree with the orders proposed by McPherson JA and his reasons.