DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 August 1999 Detective Constable Renwick filed a complaint, in the Magistrates Court at Caboolture, against Mr M.T. Bell. The charge was, “That on 10 July 1999, at Woodford … and elsewhere you without the authority of the Chief Executive did interview one Matthew Trevor Bell a prisoner within the meaning of s. 10 of the Corrective Services Act”. 

2. [2]
   The complaint came on for hearing before Mr Krosch SM, at Caboolture, on 5 April 2000. Mr Bell was represented by his solicitor, who made some admissions on his behalf. It was admitted that he was a prisoner under the terms of the Corrective Services Act, and that at the relevant time he was a prisoner at the Woodford Correctional Centre.  It was also admitted that he had spoken by telephone to a Louise Robson.  The learned Magistrate was then informed that Ms Robson was a journalist, and that she had been the principal offender.  It was the prosecution’s case that Mr Bell knowingly took part in the commission of an offence, as he knew that he was taking part in an interview by a journalist – as Ms Robson was.

3. [3]
   The learned Magistrate was informed that the offence was one against s. 104(10)(f) of the Corrective Services Act 1998, which provided that, “ a person who, without the authority of the Chief Executive, interviews a prisoner (within the meaning of s. 10) … whether within or outside of a prison, commits an offence against this Act”.  It was also observed that s. 104 was part of Division 8 Subdivision 1 of the Act, and that the headings before s. 104 said “Control of persons other than prisoners – offences by persons other than prisoners.”

4. [4]
   Neither the solicitor nor the prosecutor was able to refer the learned Magistrate to any authorities dealing with the issue which was raised as a preliminary point – could Mr Bell be liable as a party to Ms Robson’s offence, on the bases that he had enabled or aided her to interview him? The solicitor mentioned that he had noted an authority, apparently referred to in Judge Carter’s book on the Criminal Code.  He had not brought it with him.  Reference was made to the significance of s. 14 of the Acts Interpretation Act, dealing with headings in an Act of Parliament.  Reference was then made to s. 7 of the Criminal Code.  Mr Bell’s solicitor submitted that he could not be convicted of an offence against s. 104(10)(f), via the party provisions of the Code, as he himself was the prisoner who was interviewed.

5. [5]
   The learned Magistrate said that he took into account the headings preceding s. 104 of the Act. He referred to other sections of the Act, which dealt with “prisoner offences”. In his opinion, s. 7 of the Criminal Code would have general application to all Queensland Acts, including the Corrective Services Act.  Taking into account the structure of the Act, he held that s. 7 of the Criminal Code had no application to the prisoner’s actions in this case.  He therefore ruled that Mr Bell could not be charged with the particular offence that was before the court.  He dismissed the charge and discharged Mr Bell.

6. [6]
   The complainant, Detective Constable Renwick, now appeals against that decision. Counsel for Mr Bell was cautious about making any further admissions on his client’s behalf. However, he agreed that the appeal should proceed on the basis that, if the case had proceeded, then the prosecution could have adduced evidence to show that Ms Robson had pleaded guilty to charges of unlawfully interviewing a prisoner pursuant to s. 104(10)(f) of the Act. The basis of that conviction could be assumed – that is, that Mr Bell telephoned his mother from prison on three occasions, that during the first telephone call he spoke to his mother who then handed the telephone to the journalist, and that he spoke to her, and then on two more occasions, about matters relating to the convictions which resulted in his incarceration. In the result, Ms Robson was convicted of offences against s. 104(10)(f) on 1 September and 27 September 1999, being convicted and fined $500 on the first occasion, and $300 on the second.

7. [7]
   The issue in this court is whether or not those facts, if proved by the prosecution, might lead to the conviction of Mr Bell on the basis that he was a party to Ms Robson’s offences. Unlike the learned Magistrate, this court has the advantage of careful submissions by counsel, including reference to the authorities. They now include the decision of the Full Court of Queensland in R v Maroney, 2000 QCA 310, judgment 5 July 2000 (unreported).  (It should be said that Mr Bell’s previous solicitor was quite irresponsible in making such a submission, without any effort to assist the learned magistrate with the authorities.  As these reasons show, there are many decided cases on the point, including a leading decision of the High Court of Australia.  Magistrates are usually busy with their lists, and the opportunities for research at Caboolture must have been limited.  The learned magistrate deserved assistance which he did not get.)

8. [8]
   There is nothing in the Act which says anything about the application of s. 7 of the Criminal Code.  Section 104(3) refers to the offence of aiding, counselling or procuring a prisoner in escaping from lawful custody, or who remains unlawfully at large, so the drafter had such concepts in mind. 

9. [9]
   Division 7 of the Act provides for offences and breaches of discipline by prisoners. Sections 93-96 provide for a series of “prisoner offences” such as escaping, having prohibited substances, assaults on others, and destroying security systems. There is no mention of any offence, by taking part in an interview with a journalist.

10. [10]
    The first question is this – no mention of s. 7 being made in the Act, should it be held that s. 7 applies in this case? It is submitted for Mr Bell that it does not.

11. [11]
    Section 44 of the Drugs Misuse Act (considered in Maroney’s case) specifically incorporated the Code provisions, including s. 7.  The Court of Appeal did not have to deal with the present submission that s. 7 should not be held to apply generally to the Act.

12. [12]
    The decided cases strongly suggest that s. 7 is of general application to all offences created by statute in Queensland. Such has been the accepted position in Queensland at least since the decision of the Court of Appeal in Hunt v Maloney ex parte Hunt (1959) Qd. R. 164.  It was suggested here that Hunt v Maloney was really about s. 23 of the Code, so that any observations about s. 7 were unnecessary.  However, a reading of the judgments shows that a consideration of s. 7 was a necessary part of each judge’s reasoning.  It was held that s. 2 of the  Criminal Code had the effect of giving general application to s. 7, and not just an application to offences created by the Code.   According to Stanley J., it had hitherto been universally accepted in Queensland that s. 7 did extend to summary offences against statutes other than the Code, by virtue of a definition of  “offence” in s. 2 of the Code. 

13. [13]
    Then, in West v Perrier ex parte Perrier (1962) QWN 5, the Full Court of Queensland referred to the decision in Hunt v Maloney, saying that it held s. 7 was  of general application, not being confined to offences created by the Code.

14. [14]
    Therefore, it was clear that the Full Court felt that proposition to be well established in Queensland. So far as counsels’ researches go, it has not subsequently been questioned in this state.

15. [15]
    In Western Australia, the decisions of the Full Court are to the same effect. In Snow v Cooper (1934) WALR 92, it was held that s. 7 of the Code was not restricted to offences created by the Criminal Code.  It was therefore applicable to the offence of unlawfully dealing in liquor, contrary to a section of the Illicit Sale of Liquor Act.  To similar effect is the later decision of the Western Australian Full Court in Wilson v Dobra (1955) WALR 95.  There, it was held that s. 7 of the Code had general application in all offences, whether triable at Petty Sessions or elsewhere, not being confined to offences mentioned in the Criminal Code, and to those offences created before the passing of the Criminal Code Act 1913.  Finally, in West v Suzuka (1964) WAR two of the three Full Court Judges were of the same view.  One referred to the later decisions in Hunt v Maloney and West v Perrier.  Only the third, Negus J., preferred not to express any views as to the correctness or otherwise of the earlier Western Australian cases.

16. [16]
    Therefore, there is much authority to support the longstanding view that s. 7 is of general application to all statutory offences.

17. [17]
    The next question is this - is the application of s. 7 in this case precluded because of the implied meaning of this Act? Fortunately, the recent decision of the Court of Appeal in R v Maroney (2000) QCA 310, (judgment 5 July 2000) had to consider a somewhat similar problem under the Drugs Misuse Act. 

18. [18]
    In that case, Maroney also was imprisoned. He was a heroin user, and he wished to obtain some heroin for his personal use. He knew a former prisoner called Watson. He made several telephone calls from prison to Watson, and arranged for Watson to supply him with heroin. The arrangement was that Watson would give the heroin to a woman called Miller, who would visit the jail for the purpose of passing it on to another prisoner, so that it could finally be handed to Maroney.

19. [19]
    It was agreed that there had been supply of heroin by Watson and Miller to Maroney. It was also agreed that Maroney had counselled and procured that supply to himself. Maroney contended, because he was the intended recipient of the heroin, he could not also be the supplier.

20. [20]
    The majority (Davies JA. and McPherson JA.) found that Maroney had been correctly convicted as a party to Watson and Miller’s offence of supplying heroin to him. As McPherson JA. pointed out, the Crown had a choice in framing a charge against a party under s. 7 – the person may be charged either with committing the offence or with counselling or procuring its commission. Maroney was charged with actually committing the offence of supplying, so that his conviction on the face of it, showed that he was guilty of supplying the drug to “another” – that person being himself. (The same curious result would occur in the present case – the complainant alleges that Mr Bell “did interview one Matthew Trevor Bell, a prisoner …”).

21. [21]
    The majority held that there was no reason to find that s. 6 of the Drugs Misuse Act showed an intention to exclude Maroney, the personal user, from liability as a party.

22. [22]
    However, Mr Justice Thomas took a different view. He pointed out that secondary liability for a criminal offence, via s. 7, might be excluded, in a number of ways. As Dixon J. had observed in Mallan v. Lee (1949) 80 CLR 198 at 216:

“There is a number of cases which show that the application of sections dealing with aiding and abetting may be excluded by the nature of the substantive events or the general tenure or policy of the provisions by which it is created …”

That principle was applied in Giorgianni v. The Queen (1984) 156 CLR 473 at 491.   As Wilson, Deane and Dawson JJ. put the matter:

“The application of (section 7) may be excluded by necessary implication… it would be excluded if it appeared that the offence of culpable driving created by the legislature was intended to apply only to the driver of the vehicle involved and not to a secondary participant.  The mere absence in the section of any reference to secondary participation does not, however, show any intention to exclude it…”

23. [23]
    Mr Justice Thomas then went on to consider the question of secondary liability for prohibited bilateral transactions. For example, in the South Australian decision of Ellis v. Guerin (1925) SASR 282, it was held that the purchaser of cigarettes from a shopkeeper who sold the cigarettes after the prescribed closing time, could not be guilty as a party.  It was held that neither party aided and abetted the other in their transaction, in which they had the roles of buyer and seller of the cigarettes.  He said that a sale was but one instance of a bilateral transaction which might raise difficulties in the imposition of secondary criminal liability.  He thought that, depending on the legislation creating the offence, a buyer may be held to aid the seller and be charged as a secondary offender in an offence of which sale is an element.   

24. [24]
    Thomas JA. looked at other cases, not all immediately reconcilable, in the courts which were either for or against secondary responsibility. As he observed:-

“If any conclusion is to be reached from the above review of cases, it is that the terms of the legislation creating the principle offence and the nature of the act that is prescribed are of vital importance.” 

He went on to point out that the Drugs Misuse Act made a distinction between a supplier of drugs (who might be heavily punished) and a user of drugs (who was liable to suffer lesser punishments).  In his view, a purchaser of a drug was not guilty as a counsellor, procurer, aider or assister of the actual supplier. He concluded by saying:-

“It is not the court’s function to stretch the net of penal statutes to the widest arguable limits so as to produce so artificial a result.  I do not think it appropriate to apply the legal fiction of s. 7 of the Code to the legal fiction of deemed supply under ss. 4 and 6 of the Drugs Misuse Act in order to arrive at the curiously convoluted charge that is formulated (in this case)….I have concluded that the offence prescribed by s. 6 of the Drugs Misuse Act cannot be committed by a person through procuring a deemed supply to himself.”

25. [25]
    It is also necessary to keep in mind the leading decision in Giorgianni v. The Queen.  There, it was held that a person who had aided, abetted, counselled or procured another person to drive a motor vehicle in a manner dangerous to the public may, if death or grievous bodily harm has been occasioned, be convicted of an offence.  In particular, Mason J. attempted to set out some of the approaches which had been taken in considering secondary liability.  He thought that the principle in Mallen v. Lee might be inapplicable to a person of a class whom the substantive offence is designed to protect, or in respect of whose participation some lesser punishment is imposed, where the substantive offence itself involves some element of secondary participation, and where a legislative intent to exclude responsibility for secondary participation can be found in the statute itself.  It is no obstacle to secondary participation, that the statute creating the offence deals only with the liability of the principle offender.  That is also the case, even where the offence is of such a nature that the person could not have committed it as a principle offender (at pages 494-492).

26. [26]
    What conclusion should be drawn from the terms of the Corrective Services Act, in this case?  It has already been pointed out, that separate parts of the Act refer to offences and breaches of discipline by prisoners and to the control of persons other than prisoners.  When the offences in each category are compared, it can be seen that there is some overlap.  For example, there are similar offences in each case, of a non-prisoner, or a prisoner, killing a prison dog. 

27. [27]
    Secondly, in s. 104(3), there is a reference to non-prisoners being liable for aiding and abetting a prisoner to escape. It is apparent that the Parliament has provided specifically for secondary liability, with regard to those offences.

28. [28]
    In my opinion, those factors are enough to indicate that Parliament did not intend that a prisoner might have a secondary liability for participating in an interview, in circumstances where the interviewer commits the offence under s. 104(10)(f). Of the decided cases, the most relevant is Scott v Killian (1985) S.A.S.R. 37.  There, where the legislature had specified a bilateral transaction, and said that it was an offence by one party only, there must have been an intention not to catch the other party.  As the judge put it:

“It might be said that concurrence of the two parties must have been present to the mind of the legislature, and the specification of the one should be an implied exclusion of the other.  I favour the common sense of such an approach.”

29. [29]
    The learned magistrate was correct. The appeal must be dismissed.