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HIGH COURT OF AUSTRALIA

JACKSON v R

BARWICK CJMcTiernan, Mason, JACOBS and Murphy   JJ

10 February, 7 April 1976 -

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Murphy   J    This is an application for special leave to appeal from the decision of the Court of Criminal Appeal of the Supreme Court of Queensland on a case stated by a trial judge under s 668B of the Criminal Code of Queensland. The trial judge reserved four questions of law for the Court of Criminal Appeal as follows: -

   " (1) In view of the findings of the jury to the questions asked of them, has this Court jurisdiction to proceed to judgment as for a breach of s 441(b) of The Criminal Code having regard to the provisions of the Crimes Act 1914-1973 (Com) s 5 and the Income Tax Assessment Act 1936-1973 (Com) s 231 ?

   " (2) Was I right in law in directing the jury that the effect in law of their answers to the questions asked of them was that all the elements of the charge which had to be proved had been proved?

   " (3) Was I right in law in the procedure I adopted in obtaining the verdict of the jury on each count in the indictment?

   

" (4) Should I have directed the jury to return a verdict of Not Guilty on each count in the indictment? "

   The Court of Criminal Appeal answered " Yes " to the first three questions and " No " to the fourth question.

   The application for special leave was based on the following grounds: -

   (1) The decision of the Court of Criminal Appeal involves the question as to whether the Income Tax Assessment Act 1936-1973 (Com) covers the field.

   (2) The decision of the Court of Criminal Appeal involves the question as to how far, if at all, the Criminal Law of various states applies in circumstances where offences under the Income Tax Assessment Act 1936-1973 (Com) are involved.

   (3) The decision of the Court of Criminal Appeal involves the proper procedure to be applied by a Trial Judge in directing a jury after a jury has returned a special verdict and involves consideration of the principles discussed in R v Brown and Brian [1949] VLR 177 .

   The first two grounds arise from the contention that s 441 of the Criminal Code, under which the applicant was charged, is invalid (see s 109 of the Constitution) because it is inconsistent with s 231 of the Income Tax Assessment Act 1936, as amended (either alone or together with s 5 of the Crimes Act 1914-1973 (Com)).

   Section 441 of the Criminal Code states: -

   

" Any person who, being a clerk or servant, or being employed or acting in the capacity of a clerk or servant, does any of the acts following with intent to defraud, that is to say, -

 

(a) Destroys, alters, mutilates, or falsifies, any book, document, valuable security, or account, which belongs to or is in the possession of his employer, or has been received by him on account of his employer, or any entry in any such book, document, or account, or is privy to any such act; or

 

(b) Makes or is privy to making any false entry in any such book, document, or account; or

 

(c) Omits or is privy to omitting any material particular from any such book, document, or account;

 

is guilty of a crime, and is liable to imprisonment with hard labour for seven years. "

   Section 231 of the Income Tax Assessment Act states: -

   

" (1) Any person who, or any company on whose behalf the public officer, or a director, servant or agent of the company, by any wilful act, default or neglect, or by any fraud, act or contrivance whatever, avoids or attempts to avoid assessment or taxation shall be guilty of an offence.

 

Penalty: Not less than Fifty dollars, or more than One thousand dollars and, in addition, the Court may order the person to pay to the Commissioner a sum not exceeding double the amount of tax that has been avoided or attempted to be avoided. "

   Section 5 of the Crimes Act states: -

   

" Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth or of a Territory, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly. "

   In my opinion, there is no inconsistency between these three sections. There are indications in s 441 of the Criminal Code, read in its context, that the section is restricted to conduct committed with intent to defraud the employer. Even if s 441 is not read in this restricted way, there is no inconsistency with the provisions of s 231 of the Income Tax Assessment Act. On this aspect, I agree with the reasons of Jacobs   J.

   The third ground for special leave concerns the procedure adopted by the trial judge in his directions relating to the verdict. He asked the jury to answer the following questions: -

   

" On the first count do you find -

 

(1) that on 26 January 1972 George Norman Jackson was the servant of Welch Bros (Qld) Pty Ltd;

 

(2) that on that date he made a false entry in Order Form 0541 dated 26 January 1972;

 

(3) that that Order Form belonged to Welch Bros (Qld) Pty Ltd;

 

(4) that in making the false entry he had an intention thereby then to defraud;

 

(5) if the answer to question (4) is ' Yes ' , was the intention to defraud -

 

(a) Welch Bros (Qld) Pty Ltd; or (b) the Taxation Commissioner; or (c) Welch Bros (Qld) Pty Ltd or the Taxation Commissioner , but unable to say which? "

   The jury answered " Yes " to the first four questions and to 5(c). The trial judge then directed them in these terms: -

   

" Well I direct you that the effect in law of your answers is that all the elements of the charge which have to be proved have been proved. I will now ask you how do you find George Norman Jackson on the first count? Do you find him Guilty or Not Guilty? "

   The questions were put to the jury in accordance with s 624 of the Criminal Code which provides: -

   

" Special verdict . - In any case in which it appears to the Court that the question whether an accused person ought or ought not to be convicted of an offence may depend upon some specific fact, or that the proper punishment to be awarded upon conviction may depend upon some specific fact, the Court may require the jury to find that fact specially. "

   Special findings by the jury in answer to questions propounded by the judge do not amount to a special verdict at common law although the heading of s 624 is " Special Verdict " . " A special verdict " , as defined by Barry   J in R v Brown and Brian [1949] VLR 177 at 183, is: " … a finding by the jury of particular facts which raise a question of law, accompanied by a statement by the jury of their verdict in the light of the determination by the Court of the question of law. "

   A verdict returned by a jury, whether general or special, incorporates the jury ' s conclusion on guilt (although in the case of a special verdict it is conditional upon the court ' s opinion on a question which it has been requested by the jury to determine).

   The applicant contended that the procedure was irregular because the trial judge had directed the jury to convict.

   The Crown submitted that the trial judge did not in fact direct the jury to return a verdict of guilty, but that a judge was entitled to direct a jury to return a verdict of guilty even where the jury had not found any facts or issues specially, as it did in this case. The Crown relied upon the cases of R v Eastwood [1961] Crim LR 414 ; R v Larkin [1943] 1 All ER 217 ; R v Healey [1965] 1 All ER 365 ; R v Draper [1962] Crim LR 107 and Gorman v R (1944) 45 WALR 80 .

   This submission bears out the prediction of Lord Devlin: " [T]here has … begun the slow unfolding of a doctrine which might blossom into what to defenders of trial by jury would be a noxious flower. " (Trial by Jury (1966) Preface).

   This doctrine, " the genesis [of which] will be found in R v Larkin " , is that " a judge, who is taking a general verdict, can in any circumstances direct a jury that as a matter of law they must return a verdict of guilty " (Trial by Jury p   186). The extent to which judges in England are now interfering by withdrawing issues from juries and directing them on findings of fact or issues of guilt may be seen in Directions to Convict - a Reply by M   J McConville [1973] Crim LR 164.

   In my opinion, the trial judge did not direct the jury to return a verdict of guilty. He left them the option of acquitting the accused. If this option were merely formal and if there were a possibility that the jury were left with the impression (by this or a previous direction) that they must convict, this would have been an irregularity so great that the trial would have miscarried.

   A judge is never entitled to direct a jury to return a verdict of guilty. This is so, whether or not facts have been found specially. If the judge does so direct, the jury are entitled to refuse to follow his direction. The jury system is the means by which the people participate in the administration of justice. Its history shows that the task of a jury is not a mechanical one of fitting the law (as the judge states it) to the facts (as the jury find them). Here and in England, juries have often refused to convict where there was oppression in the law or its administration, despite overwhelming evidence of guilt. A famous example is the consistent refusal of juries over many years to convict of treason, whatever the evidence when the penalty was hanging, drawing and quartering. When the law was altered to reduce the barbarities, juries began to convict again.

   Another example concerns the early history of Australia. Juries in England consistently refused to return a verdict carrying the death penalty when imprisonment was the penalty for stealing to the value of less than 40 shillings (this was often converted later to transportation to the colonies) and death was the penalty for stealing to the value of 40 shillings or more. Verdicts such as " guilty of stealing 100 gold sovereigns to the value of 39 shillings " became a passport to the penal colonies of Australia.

   

" … The common practice of the juries of eliminating capital charges by understating the value of stolen property was largely responsible for the virtual suspension of the operation of many capital statutes. "

(L Radzinowicz, A History of English Criminal Law vol 1(1948) p   95 ).

   This was followed after a time by judges, even the more severe ones, such as Lord Mansfield who, according to Campbell (The Lives of the Chief Justices of England, 3rd ed (1874) vol 3 p   320), " did not allow the guilty much chance of escaping, and, for the sake of examples … was somewhat severe in the punishments he inflicted. " Lord Mansfield advised a jury to find a gold trinket, the subject of a charge of stealing in a dwelling-house to the value of 40 shillings, to be of less value. The prosecutor exclaimed, with indignation, " Under 40 shillings, my Lord! Why the fashion, alone, cost me more than double the sum. " Lord Mansfield calmly observed, " God, forbid, gentlemen, we should hang a man for fashion ' s sake! " (Campbell vol 4 pp 21-2 ). (See Radzinowicz p   94).

   Anyone acquainted with the modern operation of the system of criminal justice will be aware that juries do invoke their traditional power to acquit for reasons which are extraneous to the strict legal issues, for example, where the charge is trivial or stale or there has been serious misconduct by the prosecution. The independence of juries must not be eroded by judges directing them to convict.

   The grounds advanced do not justify the granting of special leave to appeal. I express no view on whether the answers given by the Full Court to questions 2 and 4 were incorrect for other reasons than the suggested inconsistency.

   Special leave to appeal should be refused.