Dever v Creevey; ex parte Creevey [1991] QSCFC 106 [1993] 1 Qd R 232

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. O. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) REVISED COPIES ISSUED Court, ireau SUPREME COURT OF QUEENSLAND FULL COURT McPherson acj THOMAS J BYRNE J OSC No 3 of 1991 GLEN FRANCIS DEVER and DONALD JOHN CREEVEY Ex parte: Donald John Creevey BRISBANE ..DATE 13/9/91 9.30 A.M. JUDGMENT [1991] QSCFC 106 -- 1 of 37 -- 10 130991 JUDGMENT 20 30 THE ACTING CHIEF JUSTICE: I would discharge the order nisi to review with costs. I publish my reasons. MR JUSTICE THOMAS: I would dismiss the appeal with costs. I publish my reasons. MR JUSTICE BYRNE: I agree with the orders proposed by the Acting Chief Justice. I publish my reasons. THE ACTING CHIEF JUSTICE: The appeal is dismissed with costs; that is,the order nisi to review is discharged with costs. 10 20 30 40 50 40 60 50 G 214 — Govt. Printer, Qld. 60 -- 2 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. No. 3 of 1991 GLEN FRANCIS DEVER v . DONALD JOHN CREEVEY Ex parte : DONALD JOHN CREEVEY McPherson acj THOMAS J BYRNE J Reasons for judgment delivered by McPherson ACJ Thomas J and Byrne J on 13 th September 1991. All concurring as to the order. "ORDER NISI DISCHARGED WITH COSTS" -- 3 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. No. 3 of 1991 Before the Full Court The Acting Chief Justice Mr Justice Thomas Mr Justice Bryne GLEN FRANCIS DEVER v, DONALD JOHN CREEVEY Ex parte : DONALD JOHN CREEVEY JUDGMENT - MCPHERSON A.C.J. Delivered the Thirteenth day of September 1991 CATCHWORDS Trade practices - Consumer protection - Consent to proceedings for breach - Consent not proved at hearing - Complaint amended - Whether conviction invalidated - Fair Trading Act 1988 (Qld.) s.94(6) . Counsel: R. Gotterson appellant. Q . C . , with him M. Stewart, for the W. Sofronoff respondent . Q . C . , with him M. Bland, for the Solicitors: Henderson Trout for the appellant. K.M. O'Shea, Crown Solicitor, for the respondent. Hearing Dates: 19 and 20 August 1991 -- 4 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. No. 3 of 1991 GLEN FRANCIS DEVER v. DONALD JOHN CREEVEY Ex parte : DONALD JOHN CREEVEY JUDGMENT - MCPHERSON A.C.J. Delivered the Thirteenth day of September 1991 This is an appeal by order to review on the application of Donald John Creevey (to whom I will refer as the defendant) against his conviction and sentence in the magistrates court at Bundaberg. The conviction followed the hearing of a complaint laid by G.F. Dever, an Inspector of Consumer Affairs, against the defendant that he had contravened s.41 of the Fair Trading Act 1989. Section 41 makes it an offence for a person to engage in conduct that is liable to mislead persons seeking employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment. In January 1990 the defendant, who was conducting the business of areal estate agent, wished to employ people as real estate salesmen and marketeers. On 3 January 1990 he instructed an employee to place an advertisement in the Bundaberg "News Mail" . The advertisement appeared in the "Positions Vacant" column of the issue of that newspaper published on 4 January 1990. Under the heading "Help Wanted", it listed a wide variety -- 5 of 37 -- 2 of callings described as "All needed to start on a big project". It mentioned, among others, boilermakers, machinists, fitters, draughtsmen, electricians, plumbers, carpenters, cooks, butchers, waiters and barmen, labourers and roustabouts. It gave a telephone number, describing the advertiser as "an equal opportunity employer" . A number of persons in such callings made inquiries, only to discover what form of employment was being offered by the defendant. Mr F.J. Calwell S.M. found the representation to have been made by the defendant and also that it was misleading. His worship entered a conviction against the defendant and imposed a penalty of $2,000, as well as ordering him to pay a total of $1,936 costs of court. The order nisi to review challenges the finding of the magistrate that the defendant had engaged in the prohibited conduct. On appeal, however, this ground was abandoned leaving as the sole ground of appeal against conviction that the prosecution had failed at the hearing of the complaint to establish that the proceedings against the defendant were, in accordance with s.94(6) of the Act, instituted with the consent of the Commissioner for Corporate Affairs. At the - hearing of the complaint before the magistrate Mr Gotterson Q.C. for the defendant raised the matter of proof of the requisite consent in the course of his final address. Upon his doing so, Mr Calwell S.M. said that there was on the court file a notice under s.94(6), but that he did not know how it had come to be there. Mr Gotterson Q.C. objected to its being tendered. It was not put in evidence, the question of proof of consent being resolved against his client without reference to -- 6 of 37 -- 3 the document. On appeal, however, the document was placed before us by Mr Gotterson Q.C., who acknowledged that it was before the Court "for all purposes". The two questions for decision therefore are whether it is fatal to the conviction of the defendant that the document was not tendered in evidence at the hearing of the complaint; and whether the consent it contains is in form a sufficient consent under s.94(6) for the institution of the proceeding that resulted in the defendant's conviction. Section 94(6) provides that proceedings for an offence against the Act: "(a) shall not be instituted without the Commissioner's consent first had and obtained ." Provisions in form similar to s.94(6) have been in use for a very long time. Both during and after the Revolution of 1 688 criminal informations were so much abused in England that in 1692 the statute 4 & 5 W.& M. c.18 was enacted preventing the filing of private informations except by express order of court : see Holdsworth : History of English Law , vol.9, at 244-245; R . v . Labouchere (1884) 12 Q.B.D. 320, 325. In Queensland the corresponding provision is now found in s.686 of the Criminal Code. Its history was traced by Wanstall J. in ex parte Marsh [1966] Qd.R. 357, 362-364. In England a further enactment was necessary to restrict the power of private individuals to prefer a bill of indictment before a grand jury. Section 1 of the Vexatious Indictments Act 18; 22 & 23 Viet, c.17, provided that no indictment for certain specified offences should be presented to or found by the grand jury unless certain conditions had been fulfilled, of which one was that the written consent of a Judge -- 7 of 37 -- 4 of a superior Court had been given. The consequence of failing to comply with the statutory conditions was considered in Knowlden v. The Queen (1864) 5 B. & S. 532; 122 E.R. 930, where, adopting the analogy afforded by the practice under the statute of 1692, the Court of Queen's Bench held it was not necessary for the requisite consent to be averred in the indictment and left to the jury at the trial to decide as a question of fact. The Act was, the Court said, to be considered a direction to the clerk of indictments to ensure that the statutory requirements were fulfilled before the indictment was presented to the grand jury. The decision in Knowlden v. The Queen has been followed in later cases in England. In R. Waller [1910] 1 K.B. 364, 367, it was held by the Court of Criminal Appeal that the prosecution was not called upon to prove the consent of the Director of Public Prosecutions as part of its case before the jury; the matter would not arise unless objection was taken by the accused, in which event it was a question "in each particular case as to the evidence that the Court will require to satisfy itself whether there is any ground for the objection". See also R. v. Metz (1915) 11 Cr.App.R. 164. The decision in Price v. Humphries [1958] 2 Q.B. 353 perhaps comes closest to the present because it involved a prosecution on information in petty sessions for an offence under a statute requiring the consent of the Minister as a prerequisite to the institution of proceedings. The Divisional Court held that the justices ought to have permitted the prosecution case to be re-opened in order to prove the requisite consent. Devlin J. considered ([1958] 2 Q.B. 353, 357) -- 8 of 37 -- 5 that the clerk was under a duty to ensure that the requirement of consent was complied with before issuing the summons, which was the "institution of the proceedings". If it became necessary to determine the point at the hearing "the usual practice is for the prosecution to produce the formal document to show that the summons was properly issued". See also R. v. Clerkenwell Magistrate . ex parte Director of Public Prosecutions [1984] 1 Q.B. 821. Elsewhere there is much less unanimity about the course to be followed. After referring to the English decisions, Isaacs J. in Berwin v. Donohoe (1915) 21 C.L.R. 1, 24-25, said that, if the relevant consent was not obtained, the prosecution must fail; but if no objection was raised the consent would be presumed, on the, principle "that the officer designated is presumed to do his duty". A similar, although perhaps not quite identical, opinion was expressed by Somers J. in Timaru Transport Co. Ltd, v. Ministry of Transport [1980] N.Z.L.R. 638, 647. On the other hand, there are decisions that imply, if they do not actually decide, that the prosecution should prove the appropriate authority before the close of its case; or, if the matter is overlooked, by leave of the court at some later time : R . v . Bacon [1973] 1 N.S.W.L.R. 87, 96. Some decisions in South Australia have adopted a strict approach, treating the absence of consent or authority as "a matter of substance, not a mere technicality" : see O'Sullivan v. Truth & Sportsman Ltd. [1955] S.A.S.R. 85; James v. Treloar [1922] S.A.S.R. 536, 541; Schulz v. Virgin [1966] S.A.S.R. 94; and cf. also Rabezynski v. Morrison [1988] W.A.R. 71. However, in Turner v. Tsaousis (1974) -- 9 of 37 -- 6 7 S.A.S.R. 489, 491, Hogarth J., while agreeing that "absence of a necessary consent is a matter of substance", went on to say that "failure to call evidence of an alleged existing consent is a procedural matter", as to which the prosecution should be granted leave to re-open its case if it had previously been overlooked. Most of these decisions were in cases where the question was not one of compliance with a statutory requirement calling for the consent of a particular prosecution, but of authority to institute the proceedings. In England such cases have been treated as belonging to a separate class : see, for example, Anderson v. Hamelin (1890) 25 Q.B.D. 221. The decisions are by no means easy to reconcile. It is, however, clear that if the requisite consent has not in fact been given before proceedings are instituted, and the omission to obtain it emerges in the course of the case, the prosecution must fail : ex parte Stuart . Re Mead (1930) 47 W.N. (N.S.W.) 60; Timaru Transport Co, Ltd, v. Ministry of Transport [1980] N.Z.L.R-. 638, 647. In ex parte Mead . Halse Rogers J. held that in those circumstances convictions could not be sustained; and in Knowlden v. The Queen , at least one of the judges of Queen's Bench assumed that such a conviction would be a nullity. It is, I think, also clear from the decision in that and other cases that the requisite consent is not to be considered as in the nature of an element of the offence. It is one of procedure: Price v. Humphries [1958] 2 Q.B. 353; Turner v. Tsaousis (1974) 7 S.A.S.R. 489; which ought to be adverted to and disposed of before the summons issues or the indictment is presented : Price v. Humphries. As a point going to procedure rather than to -- 10 of 37 -- 7 merits or substance, it is capable of being cured by production or by proof of the consent even after the prosecution case has been closed : Price v. Humphries ; Schulz v. Virgin ; Turner v . Tsaousis . The present case does not readily fit into any of these categories. Here the point was taken by the defendant only after the prosecution case was closed. Proof of the consent given under s.94(6) was objected to, but no application to re-open and tender the consent was made; if it had been applied for, the authorities show that it could not properly have been refused. In some circumstances such a failure to apply might perhaps have been considered fatal. But it is not necessary to decide that point. The consent is now before us "for all purposes" The case is therefore not one in which no consent to the institution of the proceedings was ever given. Under s.213 of the Justices Act the powers of this Court are wide. The case may be remitted under s .213(1)( iv) ; or the Court may cause all such proceedings to be taken as may be necessary to secure a final determination of the case "upon the merits" : s . 213 (1) ( ix), and it may discharge the order nisi if satisfied that no substantial miscarriage of justice has occurred : see the proviso to s.213(1). In view of these provisions, I consider that we should now consider ourselves in a position to determine the matter finally having regard to the document that is now before us. The document in question carries the heading Fair Trading Act 1989 and the subheading Section 94(6). It bears a signature purporting to be that of Janette Margaret Taylor as Commissioner of Consumer Affairs. By virtue of s . 19(4) of the Act we are to -- 11 of 37 -- 8 take judicial notice of the appointment of the Commissioner and of her signature. The contents of the document are as follows: "I, Janette Margaret Taylor, of Brisbane, the Commissioner for Consumer Affairs hereby give my consent to Glen Francis Dever, Inspector of Consumer Affairs, Rockhampton, to institute proceedings against Donald John Creevey for a breach of section 41 of the Fair Trading Act 1989 on the third day of January 1990." The document is dated 19 September 1990, and so preceded both the complaint and the summons issued on 25 September 1990, which constituted the "institution of the proceedings" in terms of s .94 ( 6) . In substance the only remaining point is whether the complaint and summons that followed accorded with the terms of the Commissioner's consent. The complaint charged that "on or about 3 January 1990 at Bundaberg.. .Donald John Creevey in relation to employment that was to be offered did engage in conduct which was liable to mislead persons seeking employment as to the nature of the employment" contrary to the Acts in such case made and provided. Particulars of the matter charged were on request furnished by letter dated 3 December 1991 from the Crown Solicitor, which was admitted at the hearing as ex. 1 . Paragraph (aj of those particulars averred that the conduct referred to consisted of the appellant's "causing an advertisement to be published in the Bundaberg News Mail dated 4 January 1990". It will be seen the conduct complained of was not alleged to have been engaged in by the defendant on 4 January, but rather that the conduct caused the advertisement to be published in the newspaper of that date. Evidence apart, it is possible that the -- 12 of 37 -- 9 conduct causing that publication was engaged in on either 3 or 4 January, or on a combination of those or of some earlier dates. In fact, the evidence at the hearing included a signed record of interview dated 4 June 1990 (ex. 2) in which the defendant said that "the advertisement would have been placed the day prior to the print". That day was 3 January 1990, which is more or less what one would expect if the advertisement appeared on the following day. The complainant was therefore in a position to prove, and did prove, conduct engaged in by the defendant on 3 January that caused the advertisement to be published on 4 January. That accorded with the complaint which, in the form in which it was issued, alleged conduct engaged in by the defendant "on or about the third day of January 1990". It also accorded with the consent document signed by the Commissioner which authorised the institution of proceedings against the defendant "for a breach of s.41...on the third day of January 1990". However, when the hearing began before the magistrate on 3 December 1990, counsel for the complainant sought and was granted an amendment of the complaint so that it then charged the defendant with engaging in the offending conduct "on or about the fourth day of January 1990" instead of on or about the third day of January 1990. It was said that this diverged from the Commissioner's consent, which spoke of a breach of s.41 on 3 January 1990; and also from the allegation in the complaint, with the consequence that there ceased to be a consent of the Commissioner for the proceedings against the defendant. -- 13 of 37 -- 10 For my part I cannot accept the defendant's submission on this point. I say that for several reasons. First, a provision in the form of s.94(6) refers to a consent to the "institution" of proceedings. Speaking of the similarly worded provision in s. 163(4) of the Trade Practices Act 1974 (Cth), the Federal Court (Bowen C.J., Deane, Toohey JJ.) in Traveland Ptv. Ltd, v. Dohertv (1982) 63 F.L.R. 41, 53, said: "Once proceedings have been validly instituted, the ordinary power of the court to allow amendments to the information and summons is available. The only restriction upon that power resulting from the requirement of the Minister's consent is that an amendment cannot properly be made which would have the effect of converting proceedings which had been instituted with his consent into proceedings instituted without his consent..." An example of the latter kind is R . v . Moore (1947) 64 W.N. (N.S.W.) 133, where consent to proceedings with respect to a grant of a lease was held not to cover proceedings as later amended alleging an assignment of a lease, Jordan C.J. observing that "the alteration so made charged a new and different offence". Whatever may be thought of the particular decision in that case, the amendment in the present case did not charge a new and different offence. Consent was given to proceedings for a breach of s.41 taking place on 3 January; the amended complaint charged the defendant with engaging in the offending conduct "on or about 4 January" . Something done on 4 January cannot be said to be done "on" 3 January; but it can fairly be described as done on "about" 3 January. As was said in R. v. Hartley [1972] 2 Q.B. 1, 7: "... if the words 1 on or about' the date are used in the indictment, then provided that the offence is -- 14 of 37 -- 11 shown to have been committed within some period that has a reasonable approximation to the date mentioned in the indictment, then the fact that the date is not correctly stated does not preclude a valid verdict of guilty." Except in matters where time is of the essence of the offence, the time has long gone since it was necessary for the date of the offence to be laid with absolute certainty : see Archbold's Pleading and Evidence in Criminal Cases , 21st ed. , (1893), at 56; Kennedy Allen : The Justices Acts of Queensland . 3rd ed., at 97. Here the offending conduct as particularised was probably committed on 3 January 1990 ("causing an advertisement to be published..."); but it is not incapable of being considered as having continued to 4 January 1990. Either occasion reasonably approximates to the date of the other. Finally, it was suggested that, in any event, a consent to institute proceedings for a breach of s.41 "on" 3 January could not sustain a complaint of conduct constituting an offence "on or about" 3 January. In my opinion, however, this represents too narrow an approach to s.94(6) and the consent given pursuant to it in the present case. As was said in Traveland Ptv. Ltd, v. Doherty (1982) 63 F.L.R. 41, 48: "If the consent is, in terms, limited to the institution of proceedings for one particular offence, it will not operate as a consent to proceedings for a different offence. If the consent particularizes conduct' in respect of which a prosecution may be instituted, it will not operate as a consent to the institution of a prosecution in respect of quite different conduct." Later, the Court said (63 F.L.R. 41, 49): "We do not suggest that variations between consent and information or summons in what we have described as particulars of misrepresentation may simply be disregarded. Such variations may, in a particular case, so alter the substance of what is alleged that -- 15 of 37 -- it may truly be said of the proceedings that they are not those to which the Minister consented." The complaint, whether in its original or its amended form, falls well within the liberty allowed by these statements of principle. There is here nothing at all to suggest that there was any publication, to which the consent could relate, of the, or another, advertisement on any day apart from 4 January 1991. to which the consent could relate. The particulars furnished in the letter ex. 1 demonstrate that the complaint was directed to conduct engaged in by the defendant that caused the advertisement to be published in the News Mail on 4 January 1990. Whether that conduct should be considered as having taken place on 3 January or 4 January, or on or about -the latter date, it is plain that it is one and the same conduct constituting the offence with respect to which the Commissioner on 19 September 1990 gave her consent for proceedings to be instituted, and which were in fact instituted by the complaint issued on 25 September 1990. In my opinion the proceedings so instituted satisfied the requirements of s.94(6). The appeal against conviction therefore fails . As regards the appeal against penalty, it was submitted that a fine of $2,000 was manifestly excessive, the more so when account is taken of the order that the defendant pay the costs of the prosecution. The latter may well be a relevant factor in the assessment of penalty; but it must be said that it is primarily the natural consequence of the defendant's own decision to defend the complaint laid against him, and of having done so unsuccessfully and, as it now appears, without justification in fact or law. 12 -- 16 of 37 -- 13 The maximum penalty for contravening s.41 is, in the case of the individual, 400 penalty units or $24,000. In arriving at the penalty of $2,000 imposed, Mr Calwell S.M. took into account the circumstance that the defendant had no previous convictions of any kind. However, he regarded the offence as a serious one. While accepting that the defendant himself did not prepare the advertisement, which was left to an employee, and that the defendant did not read it before publication, he considered that the advertisement was capable of being regarded as "cunningly" drafted to attract the maximum response, so making the degree of recklessness involved more severe. He accepted that Bundaberg was an area of high unemployment, and found on the evidence that the advertisement drew a "phenomenal" response. He also considered the offence to be serious because it falsely raised the hopes of unemployed persons, and others who although currently employed might be looking for a change of employment. In that context he noted that the defendant was an "extensive advertiser", and that advertisements of the kind in question served to undermine public confidence in offers of work. It is not possible to disagree with any of these findings or conclusions. Whatever the precise extent of the respondent's responsibility for the form of the advertisement - and he acknowledged ' it was placed with this authority - it was wholly insensitive to the hopes and expectations of those much less fortunately placed than himself. The magistrate made no error of principle in arriving at the penalty imposed, which I am not persuaded was in the circumstances manifestly excessive. I would discharge the order nisi with costs. -- 17 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice McPherson A.C.J. Mr. Justice Thomas Mr. Justice Byrne O.S.C. No. 3 of 1991 GLEN FRANCIS DEVER - v - DONALD JOHN CREEVEY EX PARTE: DONALD JOHN CREEVEY REASONS FOR JUDGMENT - THOMAS J. Delivered the 13th day of September, 1991. CATCHWORDS : Justices - Summary offences - Proceedings not to be instituted without Commissioner's consent first had and obtained - Unnecessary to call evidence of consent unless defence raises issue - Point may be raised at any time - Prosecution then has onus of proving consent - If not proved, prosecution fails - Leave usually granted to prosecution to reopen case when point raised - Discrepancy between consent and complaint - Sufficiency of identity of consent with particular prosecution - Whether amendment converted a conforming prosecution into a non-conforming one . Counsel: R. Gotterson Q.C. with M. Stewart for appellant W. Sofronoff Q.C. with M. Bland for respondent Solicitors: Henderson Trout for appellant Crown Solicitor for respondent Hearing dates: 19th and 20th August, 1991. -- 18 of 37 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. No. 3 of 1991 GLEN FRANCIS DEVER - v - DONALD JOHN CREEVEY EX PARTE: DONALD JOHN CREEVEY REASONS FOR JUDGMENT - THOMAS J. Delivered the 13th day of September, 1991. This case concerns what we are told is the first prosecution in this State under the Fair Trading Act 1989. The appellant was convicted of the offence of "misleading conduct in relation to employment" under s. 41 of the Act. He seeks to have the conviction set aside, primarily on the basis that the prosecution neglected to prove that the proceedings were instituted with the consent of the Commissioner for Consumer Affairs. This raises the question whether it was in the circumstances necessary for the prosecution to prove such consent. If it was, a further point arises from the fact that at all material times there existed (on the court file but not tendered) a consent to a prosecution of the defendant duly signed by the Commissioner. The parties are now agreed that this document should be taken into account by this Court "for all purposes" . The appellant submits that in any event it was defective and that even when it is taken into account the conviction cannot be supported. -- 19 of 37 -- 2 CONSENT TO PROSECUTE BEFORE COMMENCEMENT OF PROCEEDINGS The first question is whether it was necessary for the prosecution to prove the Commissioner's consent as part of its case. The offence charged was framed under s. 41 of the Fair Trading Act which states :- "41. Misleading conduct in relation to employment (TPA s. 53B) . A person shall not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment ." Section 94(6) provides as follows "(6) Proceedings for an offence against this Act - (a) shall not be instituted without the Commissioner's consent first had and obtained : (b) shall be commenced within 3 years after the offence is committed." (My underlining). Section 92 prescribes various contraventions as offences and the penalties therefor. Section 94(1) allows proceedings to be taken summarily under the Justices Act 1886 as amended. The prosecution called three witnesses who gave evidence in relation to an advertisement that appeared in the "Newsmail Newspaper" on 4th January, 1990. It was compiled and sent to the newspaper by persons for whom the defendant was responsible. It is not challenged that the defendant authorised the advertisement and its insertion. The advertisement represented to persons in 17 named professions or trades that help was wanted and invited them to apply for an interview. The defendant was in truth seeking only 12 -- 20 of 37 -- 3 persons as real estate salespersons and not in the callings listed in the advertisement. The prosecution closed its case and the defence elected to call no evidence. During address counsel for the appellant submitted that the requisite consent under s. 94(6) had not been established. When that point was taken the Magistrate observed that there was on the court file al notice under s. 94(6); he was unaware how it got there and it may have been handed up to the Magistrate who took the plea of not guilty. Counsel foreshadowed that he would object to any attempt to tender it and further stated that "he would object to it in the form it appears here". Counsel for the complainant did not seek to tender it and submitted that it was unnecessary to do so. He relied on s. 112(1) (e) of the Act. "112 Evidence (1). In any proceedings under this Act - (e) the authority of any person to take any proceeding shall be presumed unless the contrary is proved; ..." The Magistrate accepted that submission and it became unnecessary to consider further any question concerning the consent of the Commissioner. The submission appears to treat "consent" in s. 94(6) as synonymous with "authority" in s. 112(1 )(e). In this respect I think that the Stipendiary Magistrate was in error. There is a difference between having the authority to do something and consenting to use the authority. Section 112(1 )(e) helps prove the former but not the latter. Furthermore it is not -- 21 of 37 -- 4 correct, as counsel for the respondent submitted here, that s. 112(1 )(e) would have no effect unless the "authority" referred to in that section covers the consent required by s. 94(6). Section 42 of the Acts Interpretation Acts 1954 as amended enables any person to bring proceedings for "any penalty or forfeiture" imposed by any Act unless the right to sue or proceed is expressly given to a designated officer or person by that Act. There is still however room for the presumption of authority in s. 112(1)(e) to operate with respect to s. 42 of the Justices Act , for example in a case where a complaint is made by a person's "counsel or solicitor or other person authorised in that behalf". It was incorrect to hold that s. 112(1)(e) rendered further proof of compliance with s. 94(6) unnecessary. WHETHER PROOF OF CONSENT IS REQUIRED The authorities on the need of the prosecution to prove compliance with statutory requirements preceding commencement of the prosecution are not easily reconciled. Of course one first looks at the statute prescribing the nature of the step prescribed before prosecution. Given the virtually unlimited range of persons who might otherwise be entitled to bring proceedings under s . 42 of the Acts Interpretation Act , the purpose may' be discerned of preventing busy-bodies from bringing trivial complaints and to protect persons from being charged unless a responsible officer (the Commissioner) considers prosecution appropriate (cf. Traveland Ptv. Ltd, v. Dohertv (1982) 63 F.L.R. 41, 46). -- 22 of 37 -- 5 The terms of the Act are strict. It says that proceedings for an offence "shall not be instituted" without the Commissioner's consent first had and obtained. However the consequences of doing so without such consent are not expressly prescribed. The Commissioner's consent is not an element of the offence, but rather a procedural prescription. Failure on the part of the prosecution to lead such evidence as part of its proof will not per se render the prosecution ineffective. If the point is not taken by the defence the necessary consent may be presumed in the same way that regularity of proceeding may be generally presumed: (Berwin v. Donohoe (1915) 21 C.L.R. 1, 25). Although Isaacs J. was in dissent, no contrary view was expressed by any other member of the court. His Honour presented the following succinct summary "(1) If the Attorney-General has not in fact consented to that prosecution, the prosecution must fail ( R. v. Bates (1911) 1 K.B. 964); (2) if the defendant does not object that the consent has not been in fact given to that prosecution, the consent in fact will be presumed ( R. v. Metz (11 Cr.App.R. 164); (3) the principle is that the officer designated is presumed to do his duty ( R. v. Waller (1910) 1 K.B. 364 at p. 367); (4) the defendant will be confined to the scope of his objection." WHEN THE POINT MAY BE RAISED Despite the suggestion in some of English decisions (including Price v. Humphries (1958) 2 Q.B. 353) that the point should be taken before the close of the prosecution case, it seems clear that the point may be taken at any time. Of course if it is taken for the first time on appeal upon a matter that, if taken below, could have been cured by evidence, then it will be rejected on that ground ( Hall v. -- 23 of 37 -- 6 Larsen Ex parte Larsen (1943) St.R.Qd. 206, 215). But there is no reason in principle why the defence is precluded from taking the point before the close of the prosecution case. "We do not think that the failure of the defendant to take the point before the end of the prosecution's case passes the onus to the defendant; such a position would seem to be inconsistent with principle; and in any event the relevant evidence should be known and available to the prosecution, whilst the defendant is commonly in no position to know what authority has been given, or to know that the prosecution does not propose to prove the authority until the end of its case." ( R . v. Bacon & Cox (1973) 1 N.S.W.L.R. 87, 96). It was submitted, in reliance upon a line of English cases ( including Knowlden v . The Queen 5 B. & S. 533; 122 E.R. 931; and Price v. Humphries (1958) 2 Q.B. 353, 358) that there is a presumption that the proceedings were instituted with the necessary approval, based upon the court's understanding of the practice of Justices' Clerks "It is the duty of the Clerk to the Justices, or whoever issues the summons, to see that it is not used unless the consent or the authority is produced, and there is a presumption which indeed is merely a facet of the wider maxim omnia praesumuntur rite et solemniter esse acta that the Clerk has discharged his duty in that respect ..." and "... if the prosecution is allowed without objection to close its case, then the prosecution has done all that is necessary and the summons is presumed to be a good one and properly authorised. If the defence wants to challenge that and take objection, they should take their objection before the prosecution is closed, and having taking their objection the burden will pass the prosecution to produce the evidence they have which shows that the proceedings were duly authorised." To the extent that this may suggest that objections after the close of the prosecution case are incompetent, I would respectfully disagree, and prefer the above statement in R. v. -- 24 of 37 -- 7 Bacon and Cox . So far as any reliance is placed upon the practice of the clerks, I do not think that it is a matter of any great moment, or that it can assist a court to a conclusion once the issue is raised. In any event it may be noted that the Court of Criminal Appeal in New South Wales has expressed the following view:- "Whatever the position may be in England, we do not think that in New South Wales it should be assumed that the court officers have verified that the authority which is required by many statutes to be given before proceedings are instituted has in fact been given. In the absence of some express statutory presumption ... we think that the practice which has generally applied in New South Wales should continue, and that the prosecution should prove the appropriate authority before the close of its case, or, if the need to do so has been overlooked and the leave of the court - which should normally be granted - has been obtained, as some later time." ( R. v. Bacon and Cox (above) p. 96). Once the issue is raised, the prosecution will fail unless it proves a satisfactory consent or authority (as the case may be) exists ( R. v. Bates (1911) 1 K.B. 964; Berwin v. Donohoe ( above ) p. 25). Thus in Ex parte Stuart & Ors . (1930) 47 W.N.N.S.W. 60, 61, with respect to proceedings which required the authority of the Minister before prosecution, and where the only relevant evidence was an undated authority, Halse Rogers J. held:- "As there was no evidence that authority had been given at the date on which the information in these cases were laid there was a defect in proof in the case for the prosecution and the convictions cannot be sustained." Again in R . v. Moore (1947) 64 W.N.N.S.W. 133 with respect to a prosecution where the consent was to a prosecution for demanding money for assignment of the lease whilst the information alleged demanding money for the grant of a lease, -- 25 of 37 -- 8 Jordan C.J. observed . that the whole of the proceedings were "abortive". LEAVE TO REOPEN THE CASE Questions may arise as to the grant of leave to the prosecution to reopen its case when it has initially overlooked proof of such a matter. Without circumscribing the discretion of the Magistrate in such a case, it would seem that subject to questions of costs leave will normally be granted. This is the view expressed in R . v . Bacon and Cox (above p. 96), in Timaru Transport v. Ministry of Transport (1980) 2 N.Z.L.R. 638, 647, and Schulz v. Virgin (1966) S.A.S.R. 94. In the present case there was no application by the prosecutor to tender the form of consent which the Magistrate mentioned was in the file. It would seem that the prosecutor in effect placed his eggs in one basket, relying upon s. 112, and declined to cover the matter in the alternative by seeking to tender the consent in any event. In such a situation that may well be regarded as an election, and it may be the end of the matter in favour of the defence. However in the special circumstances of this case, clouded as they were by the reference to the document that arguably constituted the necessary consent, and now aided by the presentation to this Court of the actual document to be used "for all purposes" it will be necessary to proceed further and consider whether it is sufficient to satisfy the requirements of s. 94(6). The approach thus taken by the parties will avoid the prospect of sending the matter back to the Magistrate for further -- 26 of 37 -- 9 proceedings including the consideration of an application to reopen the case, and if granted, his determination of the adequacy of the consent . SUFFICIENCY OF THE DOCUMENT EVIDENCING CONSENT The document is in the following terms "I, Janette Margaret Taylor, of Brisbane, the Commissioner for Consumer Affairs hereby give my consent to Glen Francis Dever, Inspector of Consumer Affairs, Rockhampton, to institute proceedings against Donald John Creevey for a breach of Section 41 of the Fair Trading Act 1989 on the Third day of January. 1990 . D A T E D at Brisbane this Nineteenth day of September, 1990. Commissioner for Consumer Affairs" (My underlining). The complaint (dated 25th September, 1990) alleged that "on or about the 3rd day of January, 1990 at Bundaberg ... in relation to employment that was to be offered did engage in conduct which was liable to mislead persons seeking the employment as to the nature of the employment" . There can be no doubt that the complaint as made, which commenced the prosecution, was within the terms of the Commissioner's consent. However when the proceedings came on before the Stipendiary Magistrate, application was made to amend the complaint, and the date of the commission of the offence was amended from "on or about the 3rd day of January" to "on or about the 4th day of January" . Counsel for the defence did not object and the charge was amended accordingly. Notice of the proposed amendment had been given to the defendant ' s advisers and particulars had been supplied. These included:- -- 27 of 37 -- 10 "(a) The conduct referred to is his causing an advertisement to be published in the Bundaberg News Mail dated 4 January 1990. (b) The misrepresentation conveyed by the said conduct is that the employment that was being offered was of the nature of that normally undertaking by people employed in the trades and occupations specified in the advertisement." The defence was also supplied with a copy of the record of interview upon which the prosecution was based. This included factual details such as the authorisation of the advertisement and its placement with the newspaper by one Wilkinson "the day prior to the print" . It may be observed ' in passing that on the case presented there was no need whatever for any - amendment. The relevant conduct of the defendant engaged in on or about 3rd January when the advertisement was authorised and placed by his servant rather than the date upon which the publication actually appeared as a consequence of such conduct. However the amendment was asked for and granted. It is now submitted that a consent to prosecute a breach occurring "on or about 3rd January" is not a consent to prosecute a breach occurring "on or about 4th January". The question of discrepancies between the terms of a consent and those of the information or complaint was considered by the Full Court of the Federal Court in Traveland Ptv. Ltd, v. Doherty (1982) 63 F.L.R. 41. No particular form was prescribed by the legislation in that case (s. 163(4) of the Trade Practices Act 1974) any more than it is prescribed by s. 94(6) in the present case. The requirement is simply that there be an actual consent by the prescribed officer. -- 28 of 37 -- 11 "... the requirements of s. 163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question. It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence or that the consent should either define or particularize the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular (see Crichton v. Victorian Dairies Ltd. [1965] V.R. 49, at p. 59). On the other hand it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings." (pp. 46-47). In that case the variations between the consent and the information came down to the difference between "published" and "published and displayed", and between "11 nights and 10 days" and "11 days", and between "brochure" and "brochures". The court (Bowen C.J., Deane and Toohey JJ.) observed that those differences "taken in context, can in neither case lead to the conclusion that the offence charged is not that contemplated by the Minister's consent" (p. 49). Whilst the prescribed officer may give such a consent in general terms, he may also choose to confine the consent in narrow terms. If he does so, then the prosecution is confined to that narrow ambit. "If the consent is, in terms, limited to the institution of proceedings for one particular offence, it will not operate as a consent to proceedings for a different offence. If the consent particularises conduct in respect of which a prosecution may be instituted, it will not operate as a consent to the institution of a prosecution in -- 29 of 37 -- 12 respect of quite different conduct. Where there is variance between any description or particulars of the offence contained in the consent and the description or particulars contained in the information and summons, a question will arise whether it can properly be said that, in the light of the variance, the proceedings which have been instituted are proceedings to the institution of which the Minister has consented". (Traveland (above) p. 48). A question of that kind does not arise here. The consent was in its terms perfectly appropriate to cover the proceedings as they were originally instituted. The true point raised here is whether the amendment effected a sufficient variance to take it outside the terms of the relevant consent, so that in substance they became proceedings for which the Commissioner's consent had not been obtained. WHETHER THE AMENDMENT WENT BEYOND THE TERMS OF THE CONSENT In Gilmore v. Midways Sprinqwood Ptv. Ltd. (1980) 49 F.L.R. 36, application was made to amend informations in order to bring them into conformity with the consent given by the Minister. The consent was for a prosecution for representations in connection with "the supply of goods" whereas the information alleged representations in connection with "the promotion ... of the supply of goods". Brennan J. said:- "But if the amendments would have the effect of alleging offences different from those which are presently alleged in the information, the application must be refused, for the time limited for the commencement of the prosecution of the offences contained in the proposed amendments has now expired ." Although the offence proposed by the amendment axose out of the same facts, it was a different offence, and His Honour considered that the defendant's immunity from prosecution -- 30 of 37 -- under the limitation provision should not be circumvented by the exercise of the power to amend. In R . v . Bacon and Cox (above) a similar problem arose. The court observed "Where proceedings originate in an information which results in a committal, the committal can only be in respect of those offences the prosecution of which has been approved. If the Crown wishes to include further charges in the indictment, it may do so only if it has obtained approval to proceedings in respect of those further charges, for the original approval would only authorize the inclusion in the indictment of charges originally approved. Moreover, an approval in respect of a particular charge will not authorize an amendment of the charge if the amended charge is substantially different from the charge originally approved: R . v ♦ Moore (1947) 64 W.N.(N.S.W. ) 133." In the present case there can be no doubt that the prosecution to which the Commissioner consented was the one which was instituted; and that the amended charge on which the appellant was convicted was based upon the same facts and particulars as those of the charge initially framed. The amendment was in truth a misguided superficiality. It should also be remembered that "if the words 'on or about' the date are used in an indictment, then provided that the offence is shown to have been committed within some period that has a reasonable approximation to the date mentioned in the indictment, then the fact that the date is not correctly stated does not preclude a valid verdict of guilty" ( R. v. Hartley (1972) 2 Q.B. 1, 7). The proper approach to the present matter is that stated in Traveland (above) at p. 53. "Once proceedings have been validly instituted, the ordinary power of the court to allow amendments to the information and summons is available. The only restriction upon that power resulting from the requirement of the Minister's consent is that an amendment cannot properly be made which would have the effect of converting proceedings which had been -- 31 of 37 -- 14 instituted with his consent into proceedings instituted without his consent (cf. John Robertson & Go. Ltd, v. Ferguson Transformers Ptv. Ltd. (1973) 129 C.L.R. 65, at p. 98)." In my view the amendment did not have the effect of converting proceedings instituted with the consent of the Commissioner into proceedings instituted without that consent. SUMMARY As matters of this nature appear to arise not infrequently, I shall summarise the propositions that I think emerge from the authorities dealing with a prosecution when a statute forbids its institution without an official's consent. (1) Unless the defence raises the point, it is not necessary that evidence of the consent be placed before the court . In the absence of any issue in relation to it it will be presumed, or at least its absence will not stand in the way of a conviction. (2) The defence may raise the point at any time, and it is not limited to doing so before the prosecution closes its case. (3) Once the issue is raised, the prosecution bears the onus of showing compliance with the statutory requirement. (4) If at the end of the day it emerges that no consent exists, or that the consent is defective in the sense that the actual prosecution does not conform to it, the prosecution fails. (5) If the point is raised after the close of the prosecution case the court has a discretion, but leave will ordinarily be granted to reopen the case to prove the consent. -- 32 of 37 -- 15 (6) Amendments may be permitted but not to such extent as will convert a non-conforming prosecution into a conforming one , or a conforming prosecution into a non-conforming one. The extent of non-conformity in each case involves a question of degree . The question is really one of identity of the particular prosecution as the one to which the official has consented. It must be able to be seen as the same creature even though some of its features are differently described. Gilmore (above) is a helpful example of a variance creating a different creature and Traveland (above) of variances that did not. PENALTY The appeal also raises the ground that the penalty was manifestly excessive. The Stipendiary Magistrate imposed a fine of $2,000.00 and ordered the appellant to pay costs fixed at $1,936.00, allowing one month to pay. The maximum penalty (prescribed in penalty units) translates into a maximum penalty of $24,000.00 (s. 94(3)). It was not suggested that it was inappropriate to order costs or that the quantum of the costs was unfairly assessed. However the incidence of the costs order needs to be kept in mind in considering the question whether the fine is unduly oppressive or inappropriate ( Walden v. Heusler (1987) 163 C.L.R. 561). It was recognised that the appellant had not read the advertisement that was sent to the newspaper, but it is difficult to infer that it would necessarily have been very different if he had. It was common ground that he authorised it and his record of interview indicates that he wanted people -- 33 of 37 -- 16 from those professions to call in response to the advertisement. The Magistrate inferred that he knew that the advertisement was targeted at such people. I do not propose to recite the facts in detail. The conduct was misleading and it falsely raised the hopes of unemployed people. It in effect gulled people (two of whom were called to give evidence) into applying, and was calculated to raise false hopes in a wide range of people. A penalty of one-twelfth the maximum was not in my view manifestly excessive for this conduct and I do not consider that this ground of appeal has been made out. The appeal should be dismissed with costs. -- 34 of 37 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 3 of 1991 Before the Full Court Mr Justice McPherson A.C.J. Mr Justice Thomas Mr Justice Byrne GLEN FRANCIS DEVER v. DONALD JOHN CREEVEY Ex parte: DONALD JOHN CREEVEY JUDGMENT — BYRNE J . Delivered the 13th day of September 1991 Counsel: R. Gotterson Q.C. and M. Stewart for appellant W. Sofronoff Q.C. and M. Bland for respondent Solicitors: ' Henderson Trout for appellant Crown Solicitor for respondent Hearing dates: 19 and 20 August 1991 -- 35 of 37 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 3 of 1991 GLEN FRANCIS DEVER v. DONALD JOHN CREEVEY Ex parte : DONALD JOHN CREEVEY — BYRNE J. Delivered the 13th day of September 1991 The proviso to s. 213(1) of the Justices Act 1886 is in these terms: "Provided that notwithstanding that the Court may be of opinion that any point raised by the order to review might be decided in favour of the applicant the Court . . . may discharge the order if it considers that no substantial miscarriage of justice has occurred ..." The document relied on as the "consent" of the Commissioner for Consumer Affairs pursuant to s. 94(6) of the Fair Trading Act 1989 is before us. It was not adduced in evidence before the magistrate, which it should have been had leave to do so to prove this matter of procedure been sought: R. v. O'Connell [1981] 2 N.Z.L.R. 192, 196-197. However, on the return of an order nisi to review, this Court may receive additional evidence; and, by the concession of the parties, the relevant document is now available "for all purposes". If it is the consent to the institution of the proceedings required by s. 94(6), then, if the order to review might otherwise have been decided in the applicant's favour, it would be appropriate to apply the proviso because the only -- 36 of 37 -- 2 suggested impediment to conviction is an absence of consent. A similar view was adopted by the Full Court of Victoria in R. v. Cullen [1951] V.L.R. 335; see also R . v . Harkins [1958] V.R. 543. I agree with the analysis of both my brothers concerning the meaning and effect of the document. It was such a consent as s. 94(6) called for. I agree also with their reasons concerning the penalty imposed. The order nisi should be discharged with costs. -- 37 of 37 --