Gunning, Patrick --- "David v Murray" [1994] PrivLawPRpr 83; (1994) 1(6) Privacy Law & Policy Reporter 110

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DAVIS v MURRAY

Supreme Court of Western Australia, Owen J, 23 December 1993

Spent convictions - whether untrue representation made in relation to convictions - Crimes Act 1914 (Cth) s85ZM

D made an application to the Commonwealth Department of Immigration (the Department) to become a registered migration agent. To do so he filled in a form which contained the following question: ''Are you the subject of any criminal charges or have you ever been the subject of a conviction, finding of guilt or pecuniary penalty before a court that is not spent (see note on page 4)?'

The note on page 4 read:

SPENT CONVICTIONS: s85ZM of the Crimes Act provides that if you have been pardoned or sentenced to imprisonment for less than 30 months, and you have served the appropriate waiting period, then you may not have to disclose that offence on this form. If so the offence cannot be taken into account by the Registration Board. If you have any doubts about your liability to disclose details of offences, you should seek legal advice.

D answered the question in relation to convictions by ticking the box alongside the word ''No'. In the form D also authorised the Australian Federal Police to provide any information held by it or other police forces to the Department. It was discovered that D had a large number of convictions recorded against him between 1978 and 1982. In respect of these convictions he was either not sentenced to a term of imprisonment or was sentenced to a term of imprisonment less that 30 months. Between 1983 and 1989, D was subject to a number of further convictions, with the most severe punishment imposed being a six month suspended sentence. In 1992, six months prior to lodging the application with the Department, D was convicted of five charges of imposition against the Commonwealth. D was charged with an offence under s29B of the Crimes Act 1914 (Cth) imposing upon the Commonwealth by an untrue representation made with a view to obtaining advantage for his answer to the question regarding his previous convictions. D argued that he had made an honest and reasonable mistake of fact and that he did not know that his statement was untrue.

A magistrate rejected these defences, convicted D and imposed a fine of $3,000. D appealed (by way of orders nisi to review the magistrate's decision) to the Supreme Court.

Held, dismissing the appeal:

1. Although the terms of the note on page 4 was inaccurate as to the meaning of what constituted a spent conviction, any mistake to which the mistake gives rise was a mistake of law and as such could not give rise to an honest and reasonable mistake of fact. (Ianella v French [1968] HCA 14; (1976) 119 CLR 84, followed.
2. D had not demonstrated that the magistrate failed to appreciate the proper test to be applied in determining whether D knew that his statement was untrue.

Comment

D sought leave to appeal from the decision of Owen J to the Full Court. However, the Full Court held (in Davis v DPP (Cth), 21 April 1994) that D had not established that Owen J was clearly wrong or that his decision was attended by sufficient doubt to justify the grant of leave to appeal.

Perhaps the most important matter to arise from this case is the inadequate explanation of the nature of the spent convictions legislation. Both Owen J and the Full Court criticised the misleading tendency of the explanatory note appearing on the form. Due to the complexity of the spent convictions provisions it is impossible to succinctly describe their full effect. However, it would seem to be essential to specify the length of the ''waiting period' (generally ten years) in any overview of the regime. Perhaps the Privacy Commissioner should bring this example to the attention of all affected Commonwealth agencies and provide them with a more accurate overview of the spent convictions legislation for inclusion in appropriate documentation.

Patrick Gunning