R v Regos
(1947) 74 CLR 613[1947] ALR 308
(1947) 21 ALJ 110
(Judgment by: Latham CJ)
R
vRegos
Judges:
Latham CJRich J
Starke J
Mctiernan J
Legislative References:
Judiciary Act 1903-46 - s 72
Black Marketing Act 1942-46 - The Act
National Security Act 1939 - The Act
Defence (Transitional Provisions) Act 1946 - The Act
Acts Interpretation Act 1901-1941, s 48 - The Act
National Security Act 1939-1943 - The Act
Case References:
R v Edmundson - (1859) 28 LJ MC 213
Anderson v Anderson - (1895) 1 QB 749
Thorman v Dowgate Steamship Co Ltd - (1910) 1 KB 410
Thames
&
Mersey Marine Insurance Co Ltd v Hamilton, Fraser
&
Co - (1887) 12 App Cas 484
Tillmanns
&
Co v SS Knutsford Ltd - (1908) 2 KB 385
Mudie
&
Co v Strick - (1909) 100 LT 701
SS Magnhild v McIntyre Bros
&
Co - (1920) 3 KB 321
Kempley v R - [1944] ALR 249
Judgment date: 9 June 1947
Judgment by:
Latham CJ
These are two cases stated pursuant to s 72 of the Judiciary Act 1903-46, upon the application of persons who were accused of offences against the Black Marketing Act 1942-46. The proceedings in which the cases are stated were prosecutions upon indictments in the High Court.
In the proceedings in which the first case is stated the indictment contained eight counts. There were three accused persons, Neal, Regos and Morgan. They pleaded not guilty. Neal was acquitted on all counts. Regos and Morgan were found guilty on the eighth count and not guilty on the other counts. The eighth count was a count for omitting to keep proper books and accounts as required by reg 49 of the National Security (Prices) Regulations. It was objected that an omission to comply with reg 49 had not validly been made an offence under the Black Marketing Act.
The Black Marketing Act, s 3, provides that for the purposes of the Act "black marketing" means certain acts or omissions specified in paras (a) to (i). These paragraphs relate to selling & c. goods at a greater price than the maximum price fixed under regulations made under the National Security Act, and various other contraventions of those regulations. Some of the paragraphs relate to commercial dealing in goods, but they relate to many other acts or omissions; for example para (b) relates to services; para (c) includes services as well as goods; para (d) relates not only to selling & c. goods, but also to taking into possession or parting with the possession of goods; para (e) is concerned with the delivery of goods; para (f) relates to the production, manufacture or treatment of goods; para (g) includes moving goods vested in the Commonwealth under the regulations; para (h) relates to dealing with any licence, ration ticket, ration document or ration coupon; and para (i) relates to making or uttering counterfeit or forged licences & c.
S 3 provides that, for the purposes of the Act, "black marketing" means any of the acts or omissions specified in paras (a) to (i) (all of which involve contravention of the regulations) "and includes any other act or thing done, or ommitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing; and 'the Regulations' means any regulations made (whether before or after the commencement of this Act) under the National Security Act 1939 or under that Act as subsequently amended, and includes any orders made under any such regulations." The Defence (Transitional Provisions) Act 1946 amended the concluding words so that they now are as follows -- " ' the Regulations' means any regulations in force by virtue of the Defence (Transitional Provisions) Act 1946 and includes any orders in force by virtue of that Act or made under any such regulations." The National Security (Prices) Regulations were continued in force until 31st December 1947 by the Defence (Transitional Provisions) Act, s 6.
Thus s 3 adds to the specific offences mentioned in paras (a) to (i) other acts or things done or omitted to be done and any other conduct in contravention of the regulations if declared by regulations made under the Act to be black marketing.
S 17 of the Act provides that "the Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to this Act, and, in particular, for" (inter alia) "(a) declaring any act or thing done or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing."
By the Black Marketing Regulations, Statutory Rules 1943 No 274, as amended by Statutory Rules 1945 No 114, reg 3, it was provided: "It is hereby declared to be black marketing for any person, in contravention of reg 49 of the National Security (Prices) Regulations, to omit to do any act which the person is required by that regulation to do or to fail to comply with any direction given under that regulation."
Reg 49 of the National Security (Prices) Regulations requires that "every person who in the course of, or for the purposes of, or in connexion with, or as incidental to, any business carried on by him(a) produces, manufactures, sells or supplies any goods whatsoever; or (b) supplies or carries on any service whatsoever, shall, for the purposes of these regulations keep proper books and accounts."
The accused were charged with an offence against this provision as an offence under the Black Marketing Act by virtue of the declaration contained in the Black Marketing Regulations.
The first question in the first case stated is -- "Did the provisions of the Black Marketing Act . . . authorize the making by the Governor-General in Council of reg 3 of the Black Marketing Regulations?"
It was contended for the accused that reg 3 of the Black Marketing Regulations was invalid because it was not authorized by the Black Marketing Act, s 3. This argument was based upon the contention that the ejusdem-generis rule should be applied to the following words in s 3 -- "any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing." It was argued that these words should be restricted so as to be limited to acts or things of the same nature or kind as those specified in paras (a) to (i) of s 3.
S 3 provides an example of a list of specific acts or omissions followed by general words. All the specified acts or omissions are contraventions of the regulations and the general words add such other contraventions of the regulations as may be declared. It is argued that the general words should be regarded as applying only to acts and omissions of the same nature or kind as previously specified acts, ie, that they should not be construed as covering any contravention of the regulations which might be declared but as limited to some particular class or genus of such contraventions.
The ejusdem-generis rule is sometimes stated in very broad terms as, for example, by Lord Campbell in R v Edmundson (1859) 28 LJ MC 213, at p 215 -- "Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified." But in more recent cases a very different view has been taken of the rule as, for example, in Anderson v Anderson (1895) 1 QB 749, where it was said in the Court of Appeal that "prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before" (1895) 1 QB, at p 753. The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v Dowgate Steamship Co Ltd (1910) 1 KB 410, at p 419).
The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co Ltd v Hamilton, Fraser & Co (1887) 12 App Cas 484, at p 490). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co v SS Knutsford Ltd (1908) 2 KB 385, it was pointed out that "Unless you can find a category there is no room for the application of the ejusdem-generis doctrine" -- per Farwell LJ (1908) 2 KB, at p 403: see also per Vaughan Williams LJ (1908) 2 KB, at p 395 and per Kennedy LJ (1908) 2 KB, at p 409. In Mudie & Co v Strick (1909) 100 LT 701, Pickford J said: "You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then...you must read all the particular words separately, and take the general words separately also" (1909) 100 LT, at p 703. In SS Magnhild v McIntyre Bros & Co (1920) 3 KB 321, there is a full discussion of the rule by McCardie J in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things "possess some common and dominant feature" so that they can be described as constituting a genus distinguished by that feature.
Counsel for the accused were, it appeared to me, in considerable difficulty in endeavouring to specify the genus constituted by paras (a) to (i) of s 3 of the Black Marketing Act. Those paragraphs relate to acts and omissions of very different kinds, ranging from buying and selling of goods, supply of services, wrongful dealings in goods to which restrictions apply, to the production, manufacture and treatment of goods, the unlawful delivery of goods, the removal of goods acquired by the Commonwealth and misuse of ration tickets, of coupons, and forging such documents. All the acts and omissions mentioned possess the common characteristic of being contraventions of the National Security Regulations, but it is difficult to see what other "common and dominant feature" they possess. Counsel for the accused argued in the court below that all the acts and omissions mentioned could be subsumed under at least two categories; first, certain acts and omissions which involve "marketing," and secondly, matters incidental to the effective enforcement of regulations relating to marketing. In the reasons which he gave for his decision over-ruling the objection to the validity of the regulation in question, Dixon J said that, even if this argument were adopted, Black Marketing reg 3, introducing a breach of reg 49 of the Prices Regulations as a black marketing offence, was authorized by the general words of s 3 of the Black Marketing Act, because such a provision requiring the keeping of proper books and accounts was a provision incidental to the effective enforcement of the Prices Regulations. I agree with this decision.
The authorities to which I have referred show that the ejusdemgeneris rule can be applied only where there is a genus to which all the acts or things specifically mentioned can be assigned. It is not sufficient to show that there are two or more such genera -- and that is all that can be shown in the present case. In my opinion no single relevant genus has been or can be defined in the present case, and for this reason the argument on behalf of the accused fails.
But, further, in my opinion the terms of the Black Marketing Act show that it was the intention of the legislature to give to the Executive Government the fullest power of extending by regulations (which Parliament could disallow if it thought proper) the category of black-marketing offences within the limits, but only within the limits, of offences created by National Security Regulations. This intention appears in the first place from the very wide generality of the words which follow paras (a) to (i). The words are not only "any other act or thing done, or omitted to be done," but also "any conduct, in contravention of the Regulations." These words appear to me to be specially devised for the purpose of making a wide possible addition to the heterogeneous, and not homogeneous, list contained in paras (a) to (i) of s 3 of the Act.
There is another provision in the Act which, in my opinion, strongly supports the conclusion which I have stated. S 17 not only provides in the ordinary form that the Governor-General may make regulations not inconsistent with the Act for giving effect to the Act, but also that the Governor-General may make regulations "in particular, for -- (a) declaring any act or thing done or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing." By this section a particular power is given to declare any contravention of the regulations to be black marketing. The words conferring this power do not follow any list of specific matters and there is no room for the application of any ejusdemgeneris rule to them. There is no reason for depriving these words of their full natural effect. Thus the Governor-General may under s 17 declare any contravention of the regulations to be black marketing, and thereupon such a contravention becomes an offence against the Act under s 3.
Finally, the general words of s 3 are not words which merely add some vague undetermined class of acts to the acts which have been specifically defined in the early part of the section. The acts which may become black marketing by reason of the general words are only such contraventions of the regulations as are declared by regulations to be black marketing. Thus Parliament has expressly left it to the discretion of the Executive to determine whether any other contraventions of the regulations than those specified in s 3 should be dealt with under the Black Marketing Act so as to become subject to the special penalties prescribed in s 4 and other sections of the Act. It was evidently the view of Parliament when the Act was passed in October 1942 that an occasion might arise when prompt action would be required to deal with some particular contravention of the National Security Regulations which might be dangerous to the national safety. Parliament trusted the Executive Government to act reasonably in the exercise of the extensive powers conferred upon it by the Act. It was suggested in argument that it would be unreasonable for Parliament to confer a power upon the Executive Government so wide that it could be exercised in cases to which it would be unreasonable to apply it. But, when legislation is within power, it is entirely for the legislative body to determine whether a particular provision is reasonable or not, and it is not for any court to say that, because the Executive might exercise the power conferred by the Act in an unreasonable manner, the court should find some means of limiting the power by construction. This Court has no general power of supervising legislation on the ground that it disagrees with the opinion of the legislature that a particular provision is reasonable. It may be observed that Parliament took the precaution of enacting that declarations of offences under National Security Regulations as black-marketing offences should be made by regulations, not by proclamations. Thus the declarations could be disallowed by Parliament if it disagreed with them (Acts Interpretation Act 1901-1941, s 48). A further safeguard against unreasonable action is to be found in the provisions of s 4(4) requiring not only the consent of the Attorney-General to any prosecution under the Act, but also the report and advice of a committee of responsible officers.
In my opinion the first question in the first case, which inquires whether the provisions of the Black Marketing Act authorised the making by the Governor-General in Council of reg 3 of the Black Marketing Regulations should be answered, Yes.
The second question in the case refers to the admission of evidence of interviews between the accused and Commonwealth officers who were making investigations into dealings which were suspected of being offences against the Black marketing Act. The question as to the admissibility of evidence of these interviews arises under two regulations - reg 17 of the National Security (Prices) Regulations, and reg 19 of the National Security (Evidence) Regulations.
Reg 17 of the Prices Regulations provides that - "The Commissioner, a Deputy Commissioner or an authorised officer may require any person (a) to furnish him with such information as he requires; or (b) to answer any question put to him, in relation to any goods or services, whether declared or not, or to any other matter arising under these Regulations . . ." Para (2) of the regulation makes it an offence to refuse or fail to furnish information or to make answers. Para (3) of the regulation is as follows: "A person shall not be obliged to answer orally any question or questions unless he has first been informed by the Commissioner, or the Deputy Commissioner, or the authorised officer asking the question or questions that he is required and is obliged to answer by virtue of this regulation." Under this provision a person becomes a person obliged to answer a question when, but not until, he has been informed by either the Commissioner, the Deputy Commissioner or an authorised officer asking the question that he is required and is obliged to answer by virtue of this particular regulation.
After the making of this regulation questions arose as to whether statements made in answer to questions which a person was required to answer under penalty were admissible in a prosecution of that person upon a criminal charge. It was held in Kempley v R [1944] ALR 249 that such answers were admissible. After that decision, reg 19 of the National Security (Evidence) Regulations was made. It provided, so far as relevant, as follows: "Where a person is obliged to answer questions orally by virtue of any regulation under the National Security Act 1939-1943, or of any order, rule or by-law under any such regulation or of any requirement under any such regulation, order, rule or by-law, he shall not refuse to answer any question on the ground that the answer might tend to incriminate him or make him liable to any penalty, but the answers given by him shall not be admissible in evidence in any proceedings against him other than proceedings in respect of the falsity of the answers or in respect of the refusal or failure to answer any question."
Thus, if the accused persons with whom the interviews took place were informed by the authorised officer who questioned him that they were required and obliged to answer questions by virtue of reg 17 of the Prices Regulations, the answers made would not be admissible in evidence in the proceedings against those persons for a breach of the Black Marketing Act in failing to comply with reg 49 of the Prices Regulations.
In order to determine the question of the admissibility of the reports of the interviews had with the accused, the learned trial Judge took evidence upon the voir dire. Certain statements made by the accused persons were excluded from evidence because His Honour reached the conclusion that as to these statements the investigating officer, Senior Const Craig, had referred to reg 17 of the Prices Regulations in such a way that it would be quite a natural thing for the person who was being interviewed to believe that he was being informed that he was bound to answer the questions by reason of that regulation.
Morgan had been interviewed by the officer on 13th February 1946 and he had been told that he was not bound to answer any questions. In his case three subsequent statements are in question. They were made to the investigating officer, Senior Const Craig, on 13th March 1946, 6th April 1946, and 23rd July 1946. In the case of the two earlier statements no reference whatever was made to reg 17, and nothing was said which suggested that Morgan was bound to answer questions by virtue of such a regulation or otherwise. Therefore, prima facie, evidence of the interviews was not excluded by the National Security (Evidence) Reg 19. But it was contended that there were certain circumstances which in effect brought about the result that Morgan had been informed, though indirectly, by an authorised officer, namely, Craig, that he was bound to answer questions by virtue of reg 17 of the Prices Regulations. The evidence which was relied upon for this purpose was to the effect that Craig was, on 13th February 1946 engaged in interrogating one Jack Neal, an employee of Morgan. While the interview was taking place James Regos (another employee) came in and said to Neal that he was not bound to answer any questions. Craig thereupon made a reference to reg 17 of the Prices Regulations, and asked Regos to read it. His Honour did not make an express finding upon the point whether Craig did or did not inform Regos and Neal that he was not invoking the regulation, but because he had not clearly informed them that he was not using his power under reg 17 His Honour excluded the evidence of the interview of 13th February.
Regos saw Morgan on 13th February, and told him what had happened between Craig, Regos and himself. It is argued that this communication by Regos to Morgan of what happened as between Craig, Regos and Neal amounted to a communication by an authorised officer within the meaning of reg 17 of the Prices Regulations, and that it therefore produced the effect that the answers to the questions asked of Morgan by Craig were inadmissible in these proceedings. There was, however, no evidence that the statement made by Craig to Neal was made for communication to Morgan. It was a statement which related only to the questioning which was then actually in progress, namely the questioning of Neal. In my opinion His Honour's finding that the statement made by Craig to Neal in the presence of Regos should not be regarded as a communication by an authorised officer to Morgan was fully justified by the evidence.
The third interview with Morgan took place on 23rd July. At the outset of this interview he was told by Craig that he was not compelled to answer any questions, but that anything he did say would be taken down in writing and might be used in evidence. This statement made it quite clear that Morgan was not being required to answer any questions.
In the case of Regos, the interview took place on 22nd July 1946. This interview was prefaced by the same statement as that which I have already quoted as being made to Morgan on 23rd July, that is that Regos was not obliged to answer any questions unless he desired to do so. Plainly, Regos was not required to answer any questions by virtue of reg 17 of the Prices Regulations so far as this interview is concerned.
Accordingly, in my opinion the second question in the case, which inquires whether the evidence of the four interviews ought to have been rejected, should be answered, No.
The learned trial Judge postponed judgment. This Court should, in my opinion, answer the questions in the manner stated, and remit the case with those answers to the learned Judge.