Goli v Thompson[2017] QDC 4

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   These are appeals against the decision of a magistrate in the Magistrates Court at Brisbane on 13 July 2016 to strike out all charges against the respondents. The appeal is pursuant to s 222 of the Justices Act 1886 (Qld). The parties agreed the appeals should be heard together.

2. [2]
   The magistrate struck out the charges on the basis that they were not properly framed. Also the magistrate expressed the view that s 11(1) of the Criminal Code 1899 (Qld) meant that the respondents might not be able to be convicted.

3. [3]
   In order for the appeal to succeed the appellant must establish an error occurred in the court below.^[1]

Background

4. [4]
   Six different defendants were charged by separate complaints and summonses in the Brisbane Magistrates Court relating to failures to register for payroll tax; failures to lodge payroll tax returns and attempting to avoid payroll tax. The six defendants were Bradley Thompson, Brendan Thompson, Blue 11 Pty Ltd, Thompson Residential Pty Ltd, Thompson Commercial Pty Ltd and B & T Thompson Carpentry Pty Ltd.

5. [5]
   The charges struck out related to the individual defendants.

6. [6]
   The charges against each individual defendant were brought on 18 July 2014. They were brought pursuant to s 140 of the Taxation Administration Act 2001 (Qld) (“TAA”).

7. [7]
   At the time of the alleged offences^[2]this section provided:

“140 Executive officers must ensure corporation complies with tax laws

1. (1)
   The executive officers of a corporation must ensure the corporation complies with the tax laws.

3. (2)
   If a corporation commits an offence against a provision of a tax law, each of the corporation’s executive officers also commits an offence, namely, the offence of failing to ensure that the corporation complies with the provision.

Maximum penalty—the penalty for the contravention of the provision by an individual.

3. (3)
   Evidence that the corporation has been convicted of an offence against a provision of a tax law is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision.

3. (4)
   However, it is a defence for an executive officer to prove—

1. (a)
   if the officer was in a position to influence the conduct of the corporation in relation to the offence—the officer exercised reasonable diligence to ensure the corporation complied with the provision; or

2. (b)
   the officer was not in a position to influence the conduct of the corporation in relation to the offence.”

8. [8]
   With respect to Bradley Thompson, 58 charges were referable to s 121 of the TAA (failures to lodge payroll tax returns), two were referable to s 53 of the Payroll Tax Act 1971 (Qld) (“PTA”) (failures to register for payroll tax) and two were referable to s 93 of the PTA (attempting to avoid payroll tax).

9. [9]
   With respect to Brendan Thompson, 113 charges were referable to s 121 of the TAA, four were referable to s 53 of the PTA and four were referable to s 93 of the PTA.

10. [10]
    It was common ground that on the 1 November 2013, s 140 of the TAA was amended as follows^[3]:

“140  Liability of executive officer—particular offences committed by corporation

1. (1)
   An executive officer of a corporation commits an offence if—

1. (a)
   the corporation commits an offence against an executive liability provision; and

2. (b)
   the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.”

11. [11]
    The term “executive liability provision” is defined in s 140(5) of the TAA as meaning any of the following provisions: s 112(1) of the TAA, s 119(1) of the TAA, s 122(1) of the TAA, s 123(1) of the TAA, s 471G(1) of the Duties Act 2001, s 471H(1) of the Duties Act 2001, s 480(1) of the Duties Act 2001, s 480(2) of the Duties Act 2001, s 481 of the Duties Act 2001, s 481A(2) of the Duties Act 2001 and s 93 of the PTA.

12. [12]
    As one can see, s 121 of the TAA and s 53 of the PTA were removed from liability under s 140. Therefore at the time of the charge^[4]and trial, there was no offence provision concerning sixty charges involving Bradley Thompson and 117 charges involving Brendan Thompson. But there were offence provisions relating to breaches of s 93 of the PTA.

13. [13]
    The six complaints were listed for a five day trial to commence on Monday 11 July 2016. On the first day, the respondents applied to have all of the charges against them struck out (except those referable to s 93 of the PTA). The basis of the application was by reason of the provisions of s 11(1) of the Criminal Code 1899 (Qld) which provides:

“11  Effect of changes in law

1. (1)
   A person can not be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred; nor unless doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when the person is charged with the offence.”

Submissions below

14. [14]
    The respondents submitted below that s 11 had not been “overly considered” by the courts previously^[5]. It was submitted that the purpose of s 11 was to ensure a person is not punished or held liable for an offence no longer an offence at law.

15. [15]
    The appellant in her submissions submitted that the decision of whether or not to prosecute an “old” offence is purely a matter for the prosecuting authority and there is a distinction between conviction and punishment.^[6]   

Decision

16. [16]
    The magistrate adjourned for two and a half days to consider the matter.

17. [17]
    His Honour did not make a specific ruling on s 11 except to say that in his view “conviction” meant “punishment.”^[7]But he ruled that because the charges were worded under the old s 140 of the TAA rather than under the new provision the prosecution would need to seek to amend the charges^[8].

18. [18]
    Despite invitation, the prosecutor refused to amend the complaint as the prosecutor submitted the charges were properly framed^[9]and the magistrate then struck out all charges including the ones involving s 93 of the PTA against the respondents.

19. [19]
    The matter resumed at 2.30pm, the magistrate indicating he felt obliged to revisit his order striking out the complaints. The prosecutor requested an adjournment of the trial to lodge an appeal in the District Court, but no ruling was made on this application. The prosecutor advised the magistrate in his view that the orders had been made and could not be revisited. The magistrate disagreed, made an order vacating his earlier order striking out the charges and directed that written submissions be provided in respect of the respondent’s strike applications and adjourned the matters.

20. [20]
    The matters were adjourned until 11 August 2016 for the delivery of the magistrate’s further ruling, but appeal by that stage had been lodged and the matter did not proceed further in the Magistrates Court.

Submissions in this court

21. [21]
    The appellant submits that the magistrate erred in law in striking out the charges, as the charges as framed were sufficient in law and required no amendment and the magistrate failed to provide adequate reasons. Further, it is submitted that the order to vacate the strike out order involved jurisdictional error, as the magistrate was functus officio at that stage. This ground is not opposed by the respondents. The respondents concede the magistrate could not revisit the strike out ruling^[10].

22. [22]
    Indeed, the respondents do not oppose the suggestion that the charges as framed were sufficient in law, but submit that s 11(1) of the Code provided a sufficient basis for the strike out and for that reason the appeal should be dismissed.

Framing of the charges

23. [23]
    It seems clear to me that the charges were sufficient in law and required no amendment. In my view, the charges complied with the requirements of s 47(1) of the Justices Act 1886 (Qld), s 564 of the Criminal Code and r 15 of the Criminal Practice Rules 1999 (Qld).^[11]

24. [24]
    In order to constitute a valid charge the charge must plead the allegations in terms of the wording of the offence provision.^[12]It must also plead the essential factual ingredients of the offence.^[13]This means the offence as it existed at the time of the alleged offence. 

25. [25]
    Further, the amended s 140 did not apply to the respondents. Section 20C(2) of the Acts Interpretation Act 1954 (Qld) provides:

“(2) If an Act makes an act or omission an offence, the act or omission is only an offence if committed after the Act commences.”

26. [26]
    The charges then were valid at law and sufficiently set out in the complaints and in my opinion, the magistrate erred in law in striking out the charges. However, it remains to be considered whether s 11(1) of the Criminal Code provided a basis for the strikeout as this still relied on by the respondents.

Section 11 of the Code

27. [27]
    The respondents submit that they should not have been charged with an offence which was abolished by the legislature. This is because the respondents have been charged with offences which no longer existed and should not have been charged with offences which did not exist at the time of charge.

28. [28]
    The appellant, on the other hand, submits that the magistrate erred in finding that “punishment” and “conviction” were the same under s 11 of the Code.

29. [29]
    The respondents, on the other hand, submit that the purpose of the prosecution under the obsolete provisions was stated to be for the purpose of obtaining convictions which could be used to aggravate the punishment on the extant provisions.

Discussion

30. [30]
    I have found R v TL^[14]the most useful decision to consider. In that case the applicant pleaded guilty to five indictments containing allegations of sexual offences. It was conceded that the Crown could not establish whether the complainants had reached 16 years of age when the charges were alleged to have occurred during the charged period. This was relevant because there had been a change in the law which reduced the age of the complainant for the particular offence from 17 years to 16 years on 3 July 1989. Jones J at [12] said:

“The first matter which needs to be determined is whether the convictions now recorded in respect of the offences caught by s 11 should, like the sentences, be set aside. This was the course followed in R v VF [2004] QCA 239 upon the concession of the respondent’s counsel in the special circumstances of that case.”

31. [31]
    Despite VF, Jones J noted that both counsel in TL conceded that the convictions should stand. At [16], it was said:

“Resort to s 11(1) of the Criminal Code does not appear to have been a common event. So far as my research goes, its purpose and application does not appear to have been the subject of authoritative judicial discussion. It is probably correct to say that in most, if not all, cases where its application is considered before the accused person is called upon to plead, the charge would be withdrawn. Consequently the prospect of this issue arising in the future is not high.”

32. [32]
    His Honour further stated at [20]:

“The effect of the convictions in this case is to have on the public record the admitted unlawful past conduct on the part of the applicant for which he cannot now be punished. There is no question therefore of having to resolve disputed or inconsistent allegations of fact about this aspect of the applicant’s character and there is no question about the level of satisfaction necessary before the court can have regard to that past conduct.”

33. [33]
    In the result, convictions were recorded on the relevant counts but the applicant was not punished on those.

34. [34]
    In R v VF^[15], no real discussion occurred about the effect of s 11. I do not consider this case to be of assistance here.

35. [35]
    Beer v McCann^[16] also does not greatly assist as there was no detailed analysis as to s 11.  

36. [36]
    To interpret s 11 of the Code one must start with a consideration of the text of the legislation itself. The meaning of the text may require consideration of the context which includes the general purpose and policy of the provision in particular the mischief it is seeking to remedy.^[17]Also an act must be interpreted to achieve its best purpose.^[18]

37. [37]
    There is no definition of “punishment” or “conviction” in the Code, but in my opinion the legislature recognises a distinction between punishment and conviction and the Code provisions “fit in” with the Penalties and Sentences Act 1992 (Qld). Section 648 of the Code provides that once a person is convicted then he or she is called on to show cause why sentence should not be passed. Then s 650 provides as to the passing of sentence the court may make by law. 

38. [38]
    Also s 2 of the Code defines “offence” as “an act of omission which renders the person doing the act or making the omission liable to punishment.”

39. [39]
    “Conviction” is defined in s 4 of the Penalties and Sentences Act 1992 (Qld) as “a finding of guilt, or the acceptance of a plea of guilty, by a court”. “Penalty” is defined as “includes any fine, compensation, restitution or other amount of money but does not include an offender levy”. “Sentence” means “any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded”.

40. [40]
    Schedule 1 of the Acts Interpretation Act 1954 (Qld) defines “penalty” as “includes forfeiture and punishment”. In my opinion, there is a clear distinction between “conviction” and “punishment”.

41. [41]
    In the Oxford Dictionary^[19]“conviction” is defined relevantly as “the act or process of proving or finding guilt”. “Punishment” is defined as “the act or an instance of punishing, the condition of being punished”. And “punish” is “cause an offender to suffer for an offence inflict a penalty for an offence”.

42. [42]
    My respectful view is that the respondents can be lawfully prosecuted and convicted under the “old” provision but cannot be punished for the repealed offences.

43. [43]
    My view is fortified by the decision of R v NG.^[20]In that case the appellant had unsuccessfully sought a stay alleging he had already been punished for the offence as he had been excluded from school. Section 16 of the Code provides that a person cannot be twice punished. It was held the exclusion was not a punishment. De Jersey CJ noted at [36] that “punishment” under s 16 speaks of punishment for an act or omission either under the Code or some other statute for example the Penalties and Sentences Act. 

44. [44]
    Further, s 20 of the Acts Interpretation Act 1954 (Qld) provides:

“20  Saving of operation of repealed Act etc.

3. (1)
   In this section—

Act includes a provision of an Act.

repeal includes expiry.

3. (2)
   The repeal or amendment of an Act does not—

1. (a)
   revive anything not in force or existing at the time the repeal or amendment takes effect; or

2. (b)
   affect the previous operation of the Act or anything suffered, done or begun under the Act; or

3. (c)
   affect a right, privilege or liability acquired, accrued or incurred under the Act; or

4. (d)
   affect a penalty incurred in relation to an offence arising under the Act; or

5. (e)
   affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).

3. (3)
   The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.

3. (4)
   Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—

1. (a)
   the proof of anything that has happened; or

2. (b)
   any right, privilege or liability saved by the operation of the Act; or

3. (c)
   any repeal or amendment made by the Act; or

4. (d)
   any savings, transitional or validating effect of the Act.

3. (5)
   This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made.” (my underlining).

In my view, this section also supports the contention that a prosecution under a repealed section may be continued.

45. [45]
    As to the argument that the existence of the conviction may serve the aggravate punishment on other offences, in my view this does not answer the point. The fact is there is no punishment on the offences in respect the convictions recorded for the obsolete offences.

46. [46]
    If there was to be any challenge to the charges under the old law then the appropriate mechanism was a stay application, bearing in mind of course that stays are only granted in an extreme case.^[21]

47. [47]
    For example in R v Stringer^[22]the accused had been charged with six counts of indecently assaulting a male person and two counts of buggery. Four of the indecent assault counts and one count of buggery were said to have occurred between 19 December 1979 and 30 June 1980 and the other offences between 1 November 1980 and 18 December 1980. The complainant had turned 18 on the day after the latest date of any of the offences. In June 1984, the law was changed whereby acts of sexual intimacy, including buggery between consenting adults, ceased to be punishable offences.

48. [48]
    At the hearing before the trial judge, the respondent informed the court he did not deny that he and the complainant engaged in sexual acts, but the first occurred in 1981, at which time the complainant was 18. The judge at first instance had stayed the prosecution on the basis of loss of evidence. The majority found that the judge at first instance erred and the order staying the presentation was quashed. Smart AJ noted specifically at [132] that:

“In amending the Crimes Act 1900 (NSW) and decriminalising sexual intercourse between consenting adult males, the legislature did not do so retrospectively. It is not for the Crown or the accused to endeavour to step around the terms of the legislation and to involve the Court in such endeavours.”

49. [49]
    It is my opinion that there was no basis to strike out the charges under s 11(1) of the Criminal Code. Any remedy available to the respondents would be by way of stay application. The fact is, the amendments to s 140 of the TAA were not retrospective and thus the alleged conduct, if proved, would have constituted an offence for which there would be liability to conviction but not punishment. It is entirely a matter within the discretion of the prosecuting authorities as to whether it is worth bringing a prosecution in such circumstances. In this case I was informed it was important to so prosecute because it would render admissible evidence relevant to all conduct.

Conclusion

50. [50]
    In the circumstances, I am satisfied that the magistrate erred in law in striking out the charges. I am satisfied the charges as framed were sufficient in law and required no amendment. In those circumstances, my orders are:

1. The appeals are allowed and the orders made in this matter are set aside.

2. The matters are remitted to the Magistrates Court at Brisbane for rehearing.

3. I will hear the parties on the question of costs.