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McEachern, Regina v [1967-68] PNGLR 48 (24 May 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 48 - Regina v McEachern

[1967-68] PNGLR 48

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

MCEACHERN

Port Moresby

Clarkson J

3-30 April 1967

1-24 May 1967

CRIMINAL LAW - Indictments - Objection to indictment before plea - Transfer of committal proceedings from one District Court to another - Jurisdiction of latter court to commit - Validity of indictment presented pursuant to such committal - Committal proceedings - Test to be applied in deciding whether to commit - Joinder of counts in indictment - Prosecution of single purpose - Intent to defraud - District Courts Ordinance 1963, ss. 32(1), 102(1), 107(1) - The Criminal Code, ss. 441, 488, 489, 494, 567.

Where an accused person objects to an indictment on the ground that it is a nullity he is entitled to have the objection dealt with as soon as it is raised and is not required to plead to the indictment first.

R. v. Gee, [1936] 2 All E.R. 89 and R. v. Burusep, [1963] P. & N.G.L.R. 181, referred to.

Section 32(1) of the District Courts Ordinance 1963 which, in certain circumstances, permits the transfer of proceedings from one District Court to another “at any time before judgment” applies to committal proceedings.

Where, therefore, the New Britain District Court at Rabaul had transferred part-heard committal proceedings to the Central District Court at Port Moresby constituted by the same magistrate the latter court had jurisdiction to commit the accused for trial before the Supreme Court and the indictment presented pursuant to this committal was not invalid on this account.

Ex parte Chinery [1884] UKLawRpKQB 27; (1884), 12 Q.B.D. 342, at p. 345 and Opie v. Opie (1951), 25 A.L.J. 411, at p. 413, referred to.

To decide that the evidence offered by the prosecution in committal proceedings before the District Court “is sufficient to put the defendant upon his trial” within the meaning of that phrase in s. 102(1) of the District Courts Ordinance 1963 the court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.

Likewise to decide that the evidence offered by the prosecution and the defence in committal proceedings “is sufficient to put the defendant upon his trial” within the meaning of that phrase in s. 107(1) of the Ordinance the court should apply the same test as in s. 102(1). However having formed an opinion under s. 102(1) that the evidence is sufficient the magistrate does not have to put that opinion out of his mind if the defendant goes into evidence; he would be acting properly if he were to consider to what extent the evidence of the defendant and each witness as it is given, or the sum of the evidence at any given stage, requires any modification of his previously formed opinion.

All sixteen counts in an indictment related to acts which, so the Crown alleged, had been done by the accused with the object of maintaining himself in a position of control and advantage in a certain company.

Held:

That the counts had been properly joined because they alleged offences constituted by a series of acts done in the prosecution of a single purpose within the meaning of s. 567 of The Criminal Code.

Meaning of “constituted by” in s. 567 in R. v. Rodriguez, [1939] Qd.R. 227 and R. v. Gassman, [1961] Qd.R. 381, adopted; R. v. Howarth, [1967] Q.W.N. 11, referred to.

The phrase “intent to defraud” in ss. 441 and 494 of The Criminal Code bears the same meaning as it does in the equivalent common law offences.

Vatcher v. Paull, [1915] A.C. 372; Bank of England v. Vagliano Brothers[1891] UKLawRpAC 6; , [1891] A.C. 107; Commissioners of Income Tax v. Pemsel; [1891] A.C. 531; Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56, at p. 75; Re London and Globe Finance Corporation, [1903] UKLawRpCh 47; [1903] 1 Ch. 728; R. v. Carpenter (1911), 76 J.P. 158, at p. 160; R. v. Kritz, [1950] 1 K.B. 82 and R. v. Cooper [1914] NSWStRp 66; (1914), 14 S.R. (N.S.W.) 426, at p. 427, referred to.

Motion to Quash Indictment.

Application for Separate Trials. Criminal Trial.

Leonard Francis McEachern was presented for trial at Port Moresby upon an indictment alleging various offences of forgery, uttering, the unauthorized making of documents with intent to defraud and fraudulent false accounting whilst acting in the capacity of a clerk or servant. He moved to quash the indictment on the ground that it was presented pursuant to an invalid committal and after this motion had been dismissed he applied unsuccessfully for a number of separate trials on the ground that the joinder of the various offences prejudiced him in his defence. The rulings of Clarkson J. on these applications are reported and portion of the learned trial judge’s judgment is reported also. The relevant facts and the arguments of counsel appear sufficiently from these rulings and from the portion of the judgment set out hereunder.

Counsel:

Greville Smith and Dabb, for the Crown.

Lalor and Furness, for the accused.

Cur. adv. vult.

24 May 1967

CLARKSON J: This matter came before the Supreme Court in its criminal sittings in Port Moresby on 3rd April, 1967, when the Crown Prosecutor presented an indictment containing sixteen counts against the accused.

Immediately the indictment had been presented, and before the accused had been required to plead to any count, counsel for the defence moved to quash the indictment on the grounds that the criminal proceedings and the indictment which followed were nullities.

The Crown Prosecutor objected to my entertaining the motion at that stage of the proceedings. He claimed, in effect, that the accused should be called upon under s. 594 of The Criminal Code to plead at least to the first count of the indictment, with the consequence that the trial would, under that section “be deemed to begin”. His further submission was that the motion to quash, if it did not come within the terms of s. 596 of the Code, should be raised as a plea to the jurisdiction of the Court under s. 598(7).

It seemed to me, after considering what was said and done in R. v. Gee[lxxxiii]¹ and R. v. Burusep[lxxxiv]² that whilst an accused may well be able to raise at a later stage of the proceedings the objection that the indictment is a nullity, he was entitled to have the objection dealt with as soon as it was raised. I therefore ruled that I would hear the motion to quash before the accused was called upon to plead.

I then heard argument on the motion on 3rd, 4th and 5th April.

I had before me, not only the indictment but also a notice of committal dated 12th December, 1966, a recognizance of bail on committal for trial of the same date, the magistrate’s record of proceedings in the Central District Court at Port Moresby between 27th May, 1966, and 12th December, 1966, and an order dated 13th May, 1966, made in the New Britain District Court at Rabaul. In addition, both the Crown and the accused, without objection from the other, tendered certain affidavits relating to events which occurred from the time when charges were first laid against the accused.

It appears that proceedings were commenced on 9th December, 1965, when an information and a warrant for the apprehension of the accused was issued out of New Britain District Court at Rabaul on a charge corresponding to the seventh count of the indictment. The accused was arrested in Port Moresby on the following day and was remanded by the Central District Court at Port Moresby to appear at the New Britain District Court at Rabaul on 22nd March, 1966. Prior to that latter date the accused was served with summonses issued in respect to informations alleging other counts contained in the present indictment.

The preliminary hearing in accordance with the provisions of the District Courts Ordinance commenced on 22nd March, 1966, in Rabaul before Mr. J. P. O’Shea, a stipendiary magistrate. Both the informant and the accused were represented by counsel, and by consent all seventeen charges were examined together. The hearing proceeded until 4th May, 1966, when the evidence for the informant and addresses by counsel were completed. At this stage it was necessary for the Court to consider whether the evidence offered on the part of the prosecution was sufficient to put the accused upon his trial (s. 102(1), District Courts Ordinance) and it considered that it was sufficient in respect of fourteen of the seventeen charges before the Court.

The examination then continued, the Court hearing witnesses called by the accused until 13th May. At this stage the hearing was adjourned in order that the defence might call a witness who had previously been called by the Crown but who had returned to Australia and who, for domestic reasons, was unable to leave Australia for some time after 13th May.

At this stage there occurred the first of a number of events which the defence claims has rendered subsequent proceedings void. An application was made to the Court for an adjournment and by consent an order was made purporting to stay the proceedings and to transfer them to the Central Court at Port Moresby for hearing and determination by that Court.

The order reads as follows:

“District Courts Ordinance 1963-1965

New Britain District Court,

Rabaul.

Raymond Francis Jeffery

Informant

Leonard Francis McEachern

Defendant

ORDER

On the application of Mr. G. P. M. Dabb of Counsel for the informant and with the consent of Mr. W. Glynn Connolly for the defendant it is hereby ordered that all proceedings in respect of fourteen informations charging the above-named defendant for that at Rabaul in the Territory of Papua and New Guinea he as set out in the charges numbered 1 to 3 (incl.), 5, 7 to 16 (incl.), on the sheets attached hereto be hereby stayed and transferred to the Central District Court at Port Moresby for hearing and determination by that Court for the following reasons and on the following terms:

(1) Defendant a resident of Port Moresby;

(2) Defendant wishes to call a witness, Mrs. V. B. Simmonds, a resident of Sydney in the State of New South Wales who shall be far less inconvenienced by the transfer.

(3) Defendant agrees to the transfer of proceedings to Central District Court;

(4) Defendant to be released upon his entering into a recognizance in the sum of $2,000 to appear in the Central District Court at Port Moresby at 10 a.m. on 27th May, 1966.

(5) Further evidence to be adduced by the defendant on 9th August, 1966.

(6) The informant indicates that it will consent to all further necessary remands remanding the defendant to appear on 9th August, 1966, being granted provided that the defendant shall appear voluntarily on each date to which he is remanded.

Dated this 13th day of May 1966.

By the Court

J. P. O’Shea,

Stipendiary Magistrate.”

It will be seen that at this stage of the proceedings all the evidence offered by the prosecution had been heard; the Court had formed the opinion that at that stage the evidence was sufficient to put the defendant upon his trial for fourteen of the charges and some evidence had been called by the defence. The stay of the proceedings in Rabaul and the transfer of them to Port Moresby was ordered with the consent of the defence and presumably for the convenience of the accused who ordinarily resided in Port Moresby. I assume that paragraph 6 was thought necessary to meet the requirements of s. 82 of the District Courts Ordinance.

The records of the Central District Court, Port Moresby, to which I have referred, show that the matter did come before it on 27th May, 1966, when the Court was constituted by the same stipendiary magistrate, Mr. O’Shea, who had conducted the proceedings in Rabaul. Thereafter, all proceedings in the District Court of Port Moresby were before Mr. O’Shea.

The hearing of evidence resumed on 9th August when proceedings were further adjourned. It is unnecessary to examine the reasons for the adjournment nor for those which followed. It is sufficient to say, at this stage, that the proceedings terminated on 12th December, 1966, when the magistrate committed the accused for trial on the fourteen charges to which I have referred.

The notice of committal and the magistrate’s records of proceedings both show that this committal was by the District Court at Port Moresby.

The first contention in support of the motion to quash is that the Central District Court at Port Moresby acted without jurisdiction in purporting to commit the accused for trial. It is argued that the New Britain District Court had no power to transfer the proceedings to the Central District Court, that the Central District Court had no jurisdiction to entertain the matter nor to commit, and that the committal and the subsequent indictment were, for these reasons, both void.

The second contention of the defence is that even if the Central District Court were properly seised of the matter, certain events occurred on 10th and 12th December, 1966, which demonstrated a failure by that Court to follow the statutory requirements of the District Courts Ordinance. In these circumstances it is said the proceedings before the magistrate were so defective that there was no lawful committal for trial and that therefore, the document before me is not an indictment and the accused cannot be tried on it (R. v. Gee[lxxxv]³).

This second objection requires a consideration of what occurred between 10th and 12th December and to this I will return. I deal now with the first objection.

It seems clear that when the magistrate made his order of 13th May, 1966, he purported to act under s. 32(1) of the District Courts Ordinance which provides:

“(1) Where proceedings have been commenced in a District Court, the court may at any time before judgment, either with or without an application from an interested person, in that behalf, for reasons which shall be recorded, make an order staying the proceedings and on such terms as seem to it just, transferring the proceedings for hearing and determination by some other District Court or, if the proceedings are such that they could have been instituted before the Supreme Court in the first instance, by that Court.”

The argument is that this subsection referring as it does to an order made “at any time before judgment” does not apply to committal proceedings in which no judgment can be given and that the only provisions in the Ordinance for the transfer of committal proceedings are those of ss. 122 and 123. The charges against the accused were that the offences were committed at Rabaul which clearly cannot be described in terms of s. 122 as a “place remote” from the Court before which the accused was charged, namely the New Britain District Court at Rabaul. Further, it is said, if s. 32 were construed so as to apply to committal proceedings then no purpose is served by ss. 122 and 123.

I pause here to note the results which this construction brings about.

The hearing was throughout conducted by the one stipendiary magistrate whose appointments were such that he could constitute each of the Central District Courts and the New Britain District Court. The transfer of proceedings from Rabaul to Port Moresby was to meet the convenience of a defence witness, and presumably, of the accused, who resided in Port Moresby and was made with his consent.

Either of these Courts could have conducted the examination of these charges under Pt VI of the District Courts Ordinance and if the proceedings had commenced in Port Moresby and had then been transferred to Rabaul for the same reasons for which they were transferred to Port Moresby, then the transfer could have been supported under s. 122 because Rabaul is remote from Port Moresby. But, because they were commenced before Mr. O’Shea in Rabaul and then continued before him in Port Moresby the whole proceedings and their consequences are of no effect.

If this is the result of a proper construction of the Ordinance, this Court will accept and enforce it, but nevertheless it seems a strange result that proceedings properly commenced before a magistrate in one place should be avoided because the magistrate, at the request of the parties, conducted part of the proceedings elsewhere. On the other hand it is clear that proceedings commenced in the New Britain District Court resulted in an order for committal made in the Central District Court and the real question is whether this is authorized by law.

I return to the construction of s. 32. It occurs in the Pt III of the Ordinance, “District Courts” and in the Division headed “Jurisdiction of District Courts”. One possible construction which immediately occurs is that the section is not aimed at conferring a power to transfer on the court which transfers but at giving jurisdiction to the court to which proceedings are transferred, but for reasons which will appear, I have rejected that construction.

A District Court established under the Ordinance has cognizance of a wide variety of matters. Three Parts of the Ordinance are directly relevant to the present inquiry, Pts VI, VII and VIII. I do not attempt to summarize these parts but generally, Pt VI deals with committal proceedings; Pt VII with the trial of simple offences, and Pt VIII with proceedings in a limited civil jurisdiction.

There is a territorial limit on the power of a District Court to deal with simple offences and civil matters (see ss. 128 and 129 respectively) but any District Court has power to conduct the preliminary inquiry concerning an indictable offence committed anywhere in the Territory of Papua and New Guinea (see ss. 49, 57 and 101).

Each of the three Parts to which I have referred contains a limited provision enabling the transfer of proceedings to a court other than that in which the proceedings were commenced. Where the court is investigating an indictable offence under Pt VI, s. 122 to which I have already referred, applies. When a court is dealing with a simple offence under Pt VII it may, by s. 129, adjourn the hearing to any other court which, under s. 128, may have had jurisdiction, and under s. 156 a defendant in a civil matter brought before the “wrong” court (see s. 19) may apply for the adjournment of the matter to a court before which the complaint may more conveniently and “more properly” be heard.

When this situation is appreciated, much force is lost from the defence’s argument that if s. 32 applies to proceedings under Pt VI, then s. 122 is superfluous, for it can just as well be argued that if s. 32 applies to Pt VII, s. 129 is superfluous and the same can be said of s. 156 if s. 32 applies to civil proceedings under Pt VIII.

The present Ordinance replaced earlier legislation relating to District Courts (see s. 3 and First Schedule) in which there was no equivalent to the present s. 32, but in which provision for the transfer of proceedings from one court to another was made in terms somewhat similar to 122, 128 and 156 of the present Ordinance.

I am satisfied that the purpose of s. 32 is not merely to confer jurisdiction on the court to which proceedings are transferred—a possibility mentioned earlier—because under each of the three Parts to which I have referred, the court to which the proceedings are transferred is one which would have been competent to entertain the proceedings.

This consideration leads me to the conclusion that s. 32 is intended as a general provision to extend and supplement some, or all of the particular provisions of ss. 122, 129 and 156. Which of these provisions it affects must depend on the proper construction of the Ordinance including the terms of s. 32 itself.

At this stage, the defence argues that there are two indications in the section that it does not apply to proceedings under Pt VI. Firstly, as mentioned earlier, the phrase “before judgment” and secondly the phrase “for hearing and determination”. Neither of these phrases, it is said, is apt to describe proceedings under Pt VI.

In my view there is no substance in the second point. The examination is a hearing and a committal or dismissal falls within the wide and general description of “determination”. It is only necessary to refer to s. 11 which provides:

“Subject to the powers and authority of the Supreme Court, a Magistrate is not subject to any direction whatsoever in, or in relation to, the hearing and determination of a case before him.”

I cannot accept that the fundamental protection afforded by that section does not extend to a magistrate when acting under Pt VI and I can see no good reason for giving the phrase “hearing and determination” different meanings in ss. 11 and 32.

The second objection is clearly one of substance. The term “judgment” can perhaps be applied to the result of proceedings under Pt VII, a final conviction or acquittal, and even more readily to the result of civil litigation under Pt VIII, but one would not ordinarily describe a committal or dismissal under Pt VI as a “judgment”. On the other hand, it is not a word of inflexible meaning and much depends on the context in which it is used, and there may be something to show an intention to use the word in a more extended sense (see e.g. Ex parte Chinery[lxxxvi]⁴ and Opie v. Opie[lxxxvii]⁵).

After much consideration I have reached the conclusion that in the context in which it is used in s. 32 the term “judgment” is used inelegantly and thoughtlessly to mean nothing more than the final result or completion of the proceedings referred to in the section.

The section defines the possible scope of its operation by the opening words “Where proceedings have been commenced in a District Court ....” and ss. 36 and 37 show that the laying of an information is ordinarily comprehended within this expression. The phrase “hearing and determination” is appropriate to all proceedings and the position of the section in Pt III of the Ordinance is consistent with the notion that the section has general application.

I take the view therefore that the magistrate had power under s. 32 to transfer the proceedings in the way he did.

It could be argued even if s. 32 did not authorize a transfer of the proceedings, that the purported transfer being ineffective the proceedings must be taken to have continued in the New Britain District Court, that s. 25 and notices thereunder merely ensure that a court will sit at specified places but do not prohibit its sitting elsewhere and that s. 169 would authorize the amendment of the heading of the committal notice to show that the committal was made by the New Britain District Court. However, in view of the construction I have placed on s. 32 it is unnecessary for me to express any opinion on this argument.

It then becomes necessary to consider the second objection relating to the events which occurred in Port Moresby on the last few days of the proceedings.

I have considered carefully all the affidavits filed and the many cases to which I have been referred. I do not recount the facts in detail. I am satisfied that when the magistrate on 12th December refused any further adjournment he was entitled to take the view it was unlikely that, if he adjourned, Mr. Connolly who had previously acted as counsel for the defence would be present on the following day. I am also satisfied that he gave the opportunity, perhaps in a somewhat peremptory manner, for Mrs. McEachern to be called. From the description of it, her evidence was straightforward and in the circumstances could well have been given without counsel for the defence being present.

A number of objections were taken to things said and done by the magistrate. I can only say, having considered them in the light of the authorities, that there was no departure from requirements of such a nature as would justify this Court adopting the view that the committal was of no effect.

I should refer to the submission that the magistrate adopted a wrong standard in deciding whether to commit and that he made up his mind prematurely. In my view these submissions are based on a wrong construction of the Ordinance and of what the magistrate said.

Many of the cases decided in other jurisdictions are helpful but clearly each must be considered in the light of the statutory provisions in the jurisdiction in which the decision is given.

The local Ordinance appears to me to differ from the equivalent provisions in at least some of the Australian States in two material respects. Firstly, the test to be applied by the magistrate in considering all the evidence is, whether it induces in him an opinion that the evidence is, or is not, sufficient to put the defendant upon his trial. By contrast, in both Victoria and Queensland, reference is made to the test in these words and also in the words “to raise a strong or probable presumption of guilt”.

Whatever difficulties of construction this elaboration may lead to elsewhere, they do not arise here. My conclusion is that the magistrate must bona fide form the opinion that there is a reasonable prima facie case against the accused, but this is far from saying that he must try the case, or that if someone else would have formed a different opinion the committal is avoided.

The Ordinance expressly requires the magistrate to ask himself on two separate occasions whether the evidence is sufficient for the purpose mentioned. It is unreal to suggest that the magistrate having formed an opinion under s. 102(1) that the evidence is sufficient must then put that opinion completely from his mind if the accused goes into evidence. He would be acting properly if he were to consider to what extent the evidence of each witness as it was given, or the sum of the evidence at any given stage, required any modification of the previously formed opinion and if he did this, he may well be able, at any stage of the defence’s evidence, to say what his then opinion is.

In these circumstances I can find nothing fundamentally wrong with the magistrate’s intimation on 10th December that on the then state of the evidence he would commit.

I would add a further comment. What the magistrate said on 12th December is of importance in this application and I am surprised to learn that no counsel present made notes of it. It will be seen that in some respects, where the unaided recollections of the deponents do not agree, I have preferred the recollections of counsel. I have done this not because I disbelieve the accused but because I think counsel, by reason of their training and experience, would be better able to appreciate the course of events. For instance, I think it unlikely, having read what the other deponents say, that the magistrate made the first remark attributed to him on p.4 of the accused’s affidavit.

Motion to quash indictment refused.

[The accused then applied for an order directing that there be a number of separate trials. His Honour’s reasons for his decision on this application are set out hereunder.]

CLARKSON J: This indictment contains sixteen counts.

The defence has asked for an order under s. 567 of The Criminal Code directing that a number of separate trials should be ordered.

The prosecutor maintains that the counts have, under that section, been properly joined and that there is no prejudice to the accused in all counts being heard together.

I have found a surprising lack of authority on the relevant provision. I do not obtain great assistance from the cases where a count for conspiracy to commit an offence has been joined with a count for committing that offence nor from the common law decisions because s. 567 of the Code alters the common law.

If the joinder is justified it is because it falls within the second paragraph of the section, that is, that there are here several distinct indictable offences alleged to be constituted by a series of acts done in the prosecution of a single purpose.

I cannot find any case in this jurisdiction where this section has been examined and I was referred to none. The equivalent section in Queensland is identical and that in Western Australia is significantly different.

After much consideration I have decided that I should adopt the extended meaning of “constituted by” which was adopted by the Full Court in Queensland in R. v. Rodriguez[lxxxviii]⁶ a decision which a differently constituted court refused to disturb in R. v. Gassman[lxxxix]⁷.

I am satisfied, on this construction, that counts 2-16 may properly be joined in the one indictment, the single purpose being on the facts alleged by the Crown, the maintenance by the accused unlawfully of a position of control and advantage in Cosmopolitan Hotel Limited.

I have had doubts about the propriety of the first count being joined with the others, but on reflection I have decided it is properly joined.

The allegation is that the letter which was uttered was intended to obtain for the accused from the company a substantial remuneration. Clearly this would be of little value unless the position was maintained.

If the Crown establishes on all counts what it alleges, and I take pains to point out that I deal with the matter only on that basis, then what was done was done in the prosecution of the single purpose of obtaining unlawfully a continuing benefit from the company.

Having reached this conclusion, I have then considered whether any prejudice to the accused requires a direction for separate trials. I am influenced by the facts that there is no jury and that the Crown claims, and the claim is unchallenged, that the evidence on the first count would be admissible as evidence on the trial of other counts.

In these circumstances, I can see no prejudice and refuse the application for separate trials.

Application for separate trials refused.

[After the Crown had concluded its case the defence submitted that on each of the sixteen counts in the indictment there was no case to answer. His Honour ruled that there was a case to answer on all except the 12th count. The trial then proceeded on the remaining counts and in his judgment his Honour set out particulars of the various offences and then considered the materiality and meaning of intent to defraud in relation to these offences as follows:]

CLARKSON J: It will be seen that two of the charges allege forgery contrary to s. 488 of The Criminal Code, three allege uttering a false document contrary to s. 489 of the Code; three allege unauthorized making of a document with intent to defraud contrary to s. 494 of the Code, and the remaining seven allege fraudulent false accounting whilst acting in the capacity of a clerk or servant, contrary to s. 441 of the Code. There are then ten charges in respect of which the Code expressly requires the prosecution to prove an intention to defraud. As to the remaining five neither s. 488 nor s. 489 expressly refers to an intention to defraud although counsel for the defence submitted that it was an essential element of the offence under each of these sections. On the facts as I have found them it is unnecessary to decide whether this is so, but see his Honour Judge Carter’s, Criminal Law of Queensland, 2nd ed., pp. 394 and 399, s. 485(b), (d) of the Code and R. v. Stewart[xc]⁸.

Counsel for the Crown accepted of course that the prosecution must establish an intent to defraud in those cases where such an intent is expressly mentioned in the relevant section, but he sought to maintain that such an intent could be established by showing circumstances in which in civil actions, a person having a power would be held to have acted in fraud of that power. I am firmly of the opinion this contention is wrong and that the authorities to which I was referred do not show what is meant by an intent to defraud in the sections of The Criminal Code to which I have referred. One of the authorities to which I was referred was Vatcher v. Paull[xci]⁹, where the Judicial Committee of the Privy Council considered the exercise of a power of appointment contained in a marriage settlement. The opinion given in that case is, in my view, directly against the Crown’s contention here. Speaking for their Lordships, Lord Parker of Waddington said “The term ‘fraud’ in connexion with frauds on a power does not necessarily denote any conduct on the part of the appointer amounting to fraud in the common law meaning of the term, or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose or with an intent beyond the scope of, or not justified by, the instrument creating the power”[xcii]¹⁰.

The phrase “intent to defraud” is not defined in the Code but there is good reason for attributing to it the same meaning as it bears when used in relation to equivalent common law offences (Bank of England v. Vagliano Brothers[xciii]¹¹; Pemsel’s case[xciv]¹²; Vallance’s case[xcv]¹³).

Counsel for the defence referred me to Re London and Globe Finance Corporation[xcvi]¹⁴ and other cases noted in his Honour Judge Carter’s Criminal Law of Queensland, 2nd ed., at p. 358. I have also referred to other cases including R. v. Carpenter[xcvii]¹⁵ and R. v. Kritz[xcviii]¹⁶ and in considering the charges under ss. 441 and 494 I have proceeded on the basis that the Crown must establish not merely that the accused acted in excess of whatever his power was but that he did not act honestly in the sense discussed in Carpenter’s case. I have also directed myself that in determining whether he so acted I am concerned with the state of mind of the accused and not of someone else and with his state of mind at the time of the act complained of (R. v. Cooper[xcix]¹⁷).