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Bromley and Manton Pty Ltd v Andrew [1978] PGLawRp 565; [1978] PNGLR 498 (29 December 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 498 - Bromley and Manton Pty Ltd v Eremas Andrew�

[1978] PNGLR 498

N177

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BROMLEY AND MANTON PTY. LTD.

V

EREMAS ANDREW

Lae & Waigani

Pritchard J

15 March 1978

29 December 1978

CRIMINAL LAW - Criminal liability - Company - Liability to prosecution for acts of employees - Delegation of authority - Scope of employment - Whether acts independent of company�s �will�- Company as legal �person� not identical with �natural person�- Criminal Code s. 23.

STATUTES - Interpretation - Constitution s. 109(4) - Prices Regulation Act 1949, s. 62 - Liability of employer deemed absolute in regulatory legislation.

Section 62 of the Prices Regulation Act 1949, makes it an offence, inter alia, for any person to fail to comply with the provisions of any Order made under that Act or with any requirement made under any such Order. A Prices Order was made under the Act fixing maximum retail prices for a number of commodities and requiring that these retail prices be displayed in various ways.

The appellant company was charged with and convicted of 29 offences in contravention of s. 62 of the Prices Regulation Act 1949, and it appeared that the particular store manager where the offences occurred had been served with warning notices prior to the charges being laid and had been fully instructed in relation to marking prices on goods displayed for sale in order to comply with the Prices Order.

On appeal against the convictions on the ground that s. 23 of the Criminal Code had been incorrectly applied:

Held

N1>(1)����� Companies, though recognized as legal �persons�, (see Interpretation (Interim Provisions) Act 1975) do not acquire all human attributes of thought and decision making.

N1>(2)����� The requirement to display prices under the Prices Regulation Act 1949 is an absolute one.

In Re Reference No. 1 of 1976 (P) and Rakatani Peter v. South Pacific Brewery Ltd. [1976] P.N.G.L.R. 537 at pp. 557-559 and Heduru Transport Pty. Ltd. v. Gairo Vegoli (Unreported) Judgment N. 99 of 24th June, 1977 referred to.

N1>(3)����� Section 23 of the Criminal Code was not available to the appellant company because:

N2>(a)����� the Prices Regulation Act 1949 being a law for the protection of the people, s. 109(4) of the Constitution requires that s. 23 of the Criminal Code cannot be used to evade prosecution on the basis that the company�s �corporate mind� is elsewhere or alternatively because it had instructed its employees to display prices;

N2>(b)����� where the company has delegated the responsibility of the conduct of its business to an employee, the �will� of that employee is the �will� of the company; and

H. L. Bolton (Engineering) Co. Ltd. v. T. J Graham and Sons Ltd. [1957] 1 Q.B. 159 at p. 172; John Henshall (Quarries) Ltd. v. Harvey [1965] 2 Q.B. 233 at p. 241; and Grain Sorghum Marketing Board v. Supastok Pty. Ltd. [1964] Qd. R. 98 per Jeffries J at p. 105 followed.

N2>(c)����� knowing the law to have been broken by its employee through receipt of the warning notices, it permitted that situation to continue, and the offences could not be said to have occurred �independently of the will� of the appellant.

N1>(4)����� Accordingly the appeal should be dismissed.

Appeals

These were appeals against 29 convictions for offences contravening s. 62 of the Prices Regulation Act 1949, in failing to comply with the provisions of an Order made under that Act or with any requirement made under any such Order. The ground of appeal in each case was that the learned magistrate had erred in law because he failed to apply s. 23 of the Criminal Code correctly to each of the matters.

Counsel

G. R. Rissen, for the appellant.

J L. Cagney, for the respondent.

Cur. adv. vult.

29 December 1978

PRITCHARD J: This is an appeal against 29 convictions by the Senior District Magistrate at Lae for contravention of s. 62 of the Prices Regulation Act 1949 (as amended) which makes it an offence, inter alia, for any person to fail to comply with the provisions of any Order made under that Act or with any requirement made under any such Order. Under s. 22 of the Act the Prices Controller is given, amongst many other powers, the power to declare maximum prices for the sale of declared goods. Under s. 56 of the Act the Controller may by Order require any person who has for sale any declared goods the maximum price of which has been fixed, to display such prices in such manner as he thinks fit.

In Prices Order No. 118 published in Government Gazette No. 73 of 28th October, 1974 the Controller fixed maximum retail prices for a number of commodities and in par. 8 of the Order required that their retail prices as fixed in the Schedule to the Order be displayed in various ways.

All 29 informations alleged contravention of s. 62 of the Act in that the appellant on 12th April, 1977 in its trade-store at Gumine in the Chimbu Province failed to display prices on goods offered for sale in compliance with the requirement of par. 8. The appellant pleaded not guilty in each instance but was convicted and fined K10 in each case. Section 62 carries a maximum fine of K600 and a maximum gaol sentence of 6 months when prosecuted summarily. The offences may also be prosecuted on indictment with much heavier penalties.

All 29 matters were heard together in the District Court and this appeal relates to them all. Technically this is a shortcut, but a sensible one to which no one has taken exception and nor do I. There is only one ground of appeal against each conviction relied on, namely that the learned Magistrate erred in law in convicting the appellant because he failed to apply s. 23 of the Criminal Code correctly to each of the matters before him. The section is identical to that in the Queensland Criminal Code and is as follows:

N2>�23.��� INTENTION: MOTIVE

Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.�

Before considering the submissions made by counsel I will summarize the evidence and the Magistrate�s findings.

The appellant company, incorporated in this country, has its principal place of business at Mt. Hagen. It operates some four trade-stores in the Highlands including the one at Gumine. On 17th February, 1977 an inspection was carried out at this store and some 20 items were found displayed for sale without prices being displayed as required by Prices Order 118. As a result of this inspection two warning notices dated 24th March, 1977 were sent by mail to the appellant at its office at Mt. Hagen by the Consumer Affairs Bureau at Goroka on or about that date. The Bureau administers the Prices Regulation Act. Although the letter from the Bureau enclosing the warning notices was not produced it is clear from the Magistrate�s findings, as I will later discuss, that this letter was dated 25th March, 1977 and the learned Magistrate found that it had been received, together with the two warning notices shortly after that date. I should say here that it was put by counsel for the appellant that the warning notices had no particular legal consequences and this was not contested by counsel for the respondent. I therefore view them only as letters drawing to the appellant�s attention that it was alleged that the Prices Regulation Act was not being complied with at its Gumine Store.

There was no reply to the Bureau before the inspection of the store on 12th April, 1977 which led to the prosecutions the subject of this appeal. On that day a Mr. Ekonia, a District Officer who was empowered to conduct inspections under the Act, conducted the inspection, detected the breaches complained of and handed the storekeeper, one John Kaupa, copies of the original warning notices dated 24th March. Ekonia, who was familiar with the store, claimed that Kaupa was the man in charge. The Managing Director of the appellant, Mr. Bromley, said this was not so. He said that the store was in three sections, grocery, drapery and hardware, Kaupa being the storeman responsible for the grocery section but under the actual control of one Herama, who was manager of the hardware section but responsible for the actual management of the store as a whole. Mr. Bromley said that employees were taught to mark prices in the appellant�s main store for some two weeks before being posted out to one of the trade-stores. He said also that they were instructed that they had to mark prices and that there was a notice in the store to this effect. He also said that about every three months a storemanager was dismissed for frequent failure to obey these instructions. Mr. Bromley stated that he inspected the subject store for stocktake and other purposes at periods varying �between eight and twenty-one days�.

The learned Magistrate accepted Mr. Bromley in this regard, namely that he specifically found that the appellant�s employees had been instructed that they must mark prices on goods displayed for sale in order to comply with the Prices Order. However with the rest of his evidence the Magistrate seemed singularly unimpressed. Mr. Bromley said that he visited the store some days after the inspection by Mr. Ekonia to do a stocktake, and at this time was handed the copies of the original warning notices by Kaupa, which, as I said, had been given to him by Ekonia at the inspection on 12th April. Mr. Bromley said that he did not remember seeing any other copies of the warning notices until Kaupa handed him these. Kaupa, he said, was then transferred to the bulk store at Mt. Hagen. Although Ekonia in evidence said that Kaupa told him the staff had been instructed to mark prices, the company had not supplied him with a marking pen for that purpose. Mr. Bromley said that Kaupa did not tell him this but gave as his excuse that he had been too busy. Kaupa�s story to Mr. Ekonia seems a fairly lame excuse and I attach no importance to it. To me, in the long run, whether Kaupa had a marking pen or not, whether he was too busy or whether he was an incompetent and unreliable employee, does not really matter.

On Mr. Bromley�s return to Mt. Hagen the appellant wrote a letter to the Bureau on 18th April. Mr. Bromley signed it and it in fact acknowledged receipt of the Bureau�s letter of 25th March. It went on to say that �the storekeeper responsible has been sacked as we are endeavouring to conform with your requirements�.

In view of the fact that it was Kaupa who was dismissed, it is perfectly obvious that he was the one in charge of the grocery section of the store, no action being taken it appears, against the man Herema. Furthermore, as the appellant�s letter of 18th April acknowledged receipt of the Bureau�s letter of 25th March containing the two original warning notices, and in view of Mr. Bromley�s evidence that he was the only person who opened the mail and he had no recollection of seeing the two originals, the learned Magistrate, somewhat politely I feel, said, �the best possible inference to be drawn from the defendant�s point of view was that the defendant�s managing director has a short memory�.

In other words, the Magistrate did not accept Mr. Bromley. This is even more understandable when Mr. Bromley, in attempting to evade the obvious inference to be drawn from the acknowledgement of receipt of the Bureau�s letter of 25th March, suggested that the company�s reply could have been written for his signature by another company employee, possibly an accountant, one Rose. His evidence is clearly unsatisfactory in this regard.

As the learned Magistrate said:

�It was not until the managing director learnt of the 12th April inspection that he saw fit to acknowledge receipt of the earlier warning notices and indicate that the offending storekeeper had been dismissed.�

He went on to say:

�Whilst I accepted the defendant�s employees had been instructed to comply with the Prices Order, I was not satisfied that the management of the Company had undertaken sufficient supervision to ensure that the company was complying with the law.�

The final portion of the Magistrate�s reasons for decision is as follows:

�The managing director had apparently not taken any action after being notified of non-compliance (Inspection 17/2/77) and accordingly the company was not in my opinion entitled to rely on Section 23.

I would add that in my opinion a defendant company seeking to rely upon Section 23 must, where the breach alleged is an omission of a servant and not a positive act, show that all reasonable precautions were taken to ensure that the breach did not occur. Indeed, all the cases discussed by learned counsel, related to acts done and not omissions. Although it is not necessary for me to consider this point on the facts of this case, I am of the opinion that Section 23 ought not to be interpreted to allow a Defendant Company to escape liability for the omission of an action by an employee which can be said to be within the scope of his employment. I consider generally that in cases of omissions, Section 23 should be read down, and the legislation on which the prosecutions is based upon should be read so as to make the liability of the employer absolute.

In support of this contention, I refer to the decision of Atkin J in Mousell Bros. v. London and North-Western Railway Co. [1917] 2 K.B. 836:

�I think that the authorities ... make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.� �

I will return to this reasoning of the learned Magistrate after discussing the submissions of counsel on the appeal before me.

Mr. Rissen, who appeared for the appellant submitted that the Magistrate could not go behind s. 23 and in support of his argument relied on the following authorities: Hunt v. Maloney[dcxci]¹, Grain Sorghum Marketing Board v. Supastok Pty. Ltd.[dcxcii]²�and Kehoe v. Dacol Motors Pty. Ltd.[dcxciii]³�and in particular the judgment of Andrews J in that case. He then went on to discuss Tesco Supermarkets Ltd. v. Nattrass[dcxciv]⁴�and to submit that the general conclusions in that case concerning the statutory responsibility of a defendant company for the acts of its servants under the English common law were irrelevant to a consideration of the application of s. 23 of the Criminal Code as laid down in the three Queensland decisions. Mr. Rissen then went on to submit that the warning notices sent to the appellant were of no legal effect and his submission here was based on the argument that the appellant company could not be made criminally liable because it may have been made aware of something which had happened in the past.

N1>Mr. Rissen then referred to a statement made by the learned Magistrate in his reasons for decision that, �I was left with the overall impression that justice would not be done if the defendant was allowed to hide behind Section 23.� He submitted that a court is not allowed to apply an abstract criterion of justice, it must be a concrete application of the law. He then referred to the Magistrate�s opinion expressed in the last portion of his reasons for decision quoted above that a defendant company had the onus of showing, where an omission was alleged, that all reasonable precautions were taken to ensure that the breach did not occur. He submitted here that s. 23 did not differentiate between �acts� and �omissions� and such a distinction relating to the onus of proof was an erroneous one to draw.

N1>Mr. Cagney, who appeared for the respondent, submitted that both Hunt�s case[dcxcv]⁵�and Supastok[dcxcvi]⁶�could, as the learned Magistrate suggested, be distinguished from the case the subject of this appeal, firstly because in each of those cases the prosecution relied on �acts� as opposed to �omissions� and secondly because in each of them there was a finding that the defendant had taken all available steps to ensure compliance with the law each was being prosecuted for having disobeyed. In the subject case, Mr. Cagney submits, the findings of the Magistrate were specifically that such steps were not taken, or rather that no effective steps were taken. Mr. Cagney then submitted that s. 63 of the Prices Regulation Act gives rise to a necessary implication in the case of corporate bodies and in particular where the offence arises from an �omission� as opposed to an �act� that s. 23 has been excluded from prosecutions under the Act. Section 63 provides that where a corporation has committed an offence, its directors and officers are also guilty of an offence unless they can prove they had no knowledge of it or used all due diligence to prevent the commission of the offence. Mr. Rissen�s reply to this argument is that s. 63 relates only to the liability to conviction of the company�s officers and the defences open to them in the event of the company being convicted and that this does not affect the defences open to the company itself, in other words despite this section, the company is entitled to rely on s. 23, even though the defences of its directors and officers are limited. Mr. Cagney, having advanced this argument, went on to submit that the appellant�s liability to conviction in this case is an absolute one, and he adopted the learned Magistrate�s reasons in this regard and that section of the judgment in Mousell Bros. v. London and North Western Rail Co.[dcxcvii]⁷�set out in the final part of the Magistrate�s reasons for decision set out above.

Before discussing the submissions put to me on this appeal I would make some general observations. The first is that companies have become recognized as legal �persons�. In Papua New Guinea this is spelt out clearly in the definition of �person� in the Interpretation (Interim Provisions) Act 1975. However to my mind the fact that a company is a �person� in the eyes of the law does not mean that it acquires all human attributes of thought and decision making. Secondly I believe that a distinction can be validly drawn between minor offences of a regulatory kind where no criminal intent is an ingredient and other offences where it is. In other words, I believe that in Papua New Guinea it is appropriate to strengthen the concept of strict responsibility. Thirdly I believe that in a number of cases undue weight has been given to instructions issued by companies to employees that they should obey particular laws or carry out their duties in such a manner which will not breach such laws. Stress has been placed on such instructions to negate knowledge of the commission of offences by employees and to negate mens rea. To my mind, if responsibility has been delegated to an employee by a company which involves day to day compliance with particular laws, the requirement of those laws to be obeyed lies clearly within the scope of his employment and his failure is that of his employer. After all, it is somewhat unreal for a company, simply because it has instructed its employees to obey a particular law, to escape liability to prosecution by blaming its employees. If that were to be the law it would enable employers to employ incompetent, lazy, disobedient people with impunity. The issuing of such instructions goes to mitigation of penalty, and not avoidance of liability for breach of the law.

I deal firstly with Mr. Cagney�s submission that the requirements of the Prices Regulation Act are absolute. It was not referred to in argument before me but s. 109(4) of the Constitution is most relevant to this submission. It reads:

N2>�(4)��� Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, ...�

The section first received judicial attention when Prentice Deputy C.J (as he then was) discussed it in In re Reference No. 1 of 1976 (P) and Rakatani Peter v. South Pacific Brewery Limited[dcxcviii]⁸. Its first application to the criminal law and indeed to a statutory offence much akin to the one in this appeal was by Frost C.J in Heduru Transport Pty. Ltd. v. Gairo Vegoli[dcxcix]⁹�where his Honour was considering an appeal by the appellant company against a conviction under the Police Offences (Rubbish Dumping) Act 1969 for the act of one of its employee truck-drivers. His Honour at p. 10 of the judgment referred to the statement in the report of the Constitutional Planning Committee which brought our Constitution (in draft) into being, �We cannot afford to have our Courts take a narrowly legalistic approach if the law is to be justly applied.� On p. 11 of the judgment his Honour said, �As a matter of statutory construction therefore, and to ensure the attainment of the objects of the statute, I would thus uphold the submission for the respondent that there is an implied exclusion of s. 23 of the Criminal Code. Accordingly the Act creates an absolute offence, and it is no defence that the act of dumping was committed by a servant on behalf of the appellant without the knowledge of the company.�

N1>Up to this point his Honour had reviewed a number of authorities including those put to me on this appeal. I will not go into detail on his Honour�s approach to the matter except to say that I agree with his reasoning in reaching the conclusion I have just quoted. Thereafter his Honour goes on to deal with other matters which led to the conviction the subject of that appeal being set aside, but they are irrelevant here.

N1>I therefore, adopting such reasoning, hold that the requirement to display prices under the Prices Regulation Act is an absolute one. The appellant on the day these offences were committed was a �person� which had goods displayed for sale in the store owned and conducted by it at Gumine and no prices were displayed in contravention of Prices Order 118. In my view if the object of Parliament�s law is the protection of the people, and the Prices Regulation Act is surely such a law, then the provisions of s. 109(4) of the Constitution require me to hold that the appellant cannot rely on s. 23 of the Criminal Code to evade prosecution, on the basis that its �corporate mind� is elsewhere or alternatively because it had instructed its employees to display prices. It delegated to Kaupa the responsibility of complying with the company�s obligation to obey the law and his default is its own.

N1>The second reason I would dismiss this appeal is because in my view, apart from s. 109(4) of the Constitution, the appellant cannot on the facts of this case rely on s. 23 because it had delegated the responsibility of the conduct of its business to Kaupa as I have said, and his �will�, in the circumstances, was the �will� of the appellant.

N1>In England the criminal responsibility of companies for the acts of their servants or agents has turned on the principles of the extent of delegation of authority and scope of employment. Examples are D.P.P. v. Kent and Sussex Contractors, Ltd. & Anor.[dcc]¹⁰, R. v. I.C.R. Haulage, Ltd.[dcci]¹¹�and Moore v. I. Bresler, Ltd.[dccii]¹². In several of those cases the authority relied on by the learned Magistrate in the case now before me, Moussell Bros. v. London and North-Western Railway Co. (supra)[dcciii]¹³�was considered.

N1>In 1956 Denning L.J in H.L. Bolton (Engineering) Co. Ltd. v. T. J Graham and Sons Ltd.[dcciv]¹⁴�said at p. 172:

�A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane�s speech in Lennard�s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company itself guilty. That is shown by R. v. I.C.R. Haulage Ltd., to which we were referred and in which the court said: �Whether in any particular case there is evidence to go to a jury that the criminal act of an agent, including his state of mind, intention, knowledge or belief is the act of the company ... must depend on the nature of the charge, the relative position of the officer or agent, and the other relevant facts and circumstances of the case.� �

This passage was later expressly approved by Lord Parker C.J in John Henshall (Quarries) Ltd. v. Harvey[dccv]¹⁵�where having done so his Lordship at p. 241 went on to say:

�I should have added this, that as is shown by the case of Vane in the House of Lords, there can be cases in which a master is fixed with the knowledge of his servant, where there has been what is referred to as true delegation. If a master completely hands over the effective management of a business to somebody else, then as it is often said he cannot get out of his responsibility by such delegation. In those circumstances he is fixed with the knowledge of his delegate.�

In Queensland, because of s. 23 of that State�s Criminal Code, the decisions have to a large extent departed from the English cases for as the judges there have pointed out, the Code to a large extent replaced the common law.

In Hunt v. Maloney[dccvi]¹⁶�which was an appeal from a conviction of an employer publican for the act of one of his employees in serving a glass of beer in an unwashed glass contrary to the Queensland Health Acts, it was decided that s. 23 of the Code could only be excluded from operation by express enactment of the Legislature or by language in a later statute so clear and unequivocal in its meaning that it must necessarily be concluded that it should be so excluded. The relevant legislation it was decided should not be so construed. The question of aiding and abetting was considered and it was also decided that the Health Acts did not extend the provisions of s. 7 of the Code in that regard.

N1>This view of s. 23 was reflected in Grain Sorghum Marketing Board v. Supastok Pty. Ltd.[dccvii]¹⁷�and it was held there that it applied equally to companies as it does to natural persons. However, in a dissenting judgment, Jeffries J, relying on the English authorities set out above, found that despite the fact that instructions from the general manager had been disobeyed, the act of the employee whose action led to the prosecution was by virtue of the scope of his authority acting on behalf of the company, the act of the company itself. His Honour said at p. 105:

�Furthermore there appears to be no reason why the knowledge, mind or will of the company should be limited to the knowledge, mind or will of the general manager Brown. It does not follow that a company has as many minds or wills as it has managers. The question is what was the mind or will of the company in doing the particular act?�

I agree with his Honour�s views. In looking at the judgments of the two judges in majority firstly Stable J at p. 110 said this, after quoting Denning L.J in H. L. Bolton (Engineering) Co. Ltd. v. T. J Graham and Sons Ltd.[dccviii]¹⁸:

�The magistrate, accepting Brown, could well regard Downie as a mere tool without power to move save in accordance with orders. The argument must go so far as to assert that if the publican in Hunt v. Maloney had been a company then the will of the disobedient servant would have been its will, for he was the company�s agent for the purpose of serving glasses of beer, and the company must have been convicted and punished for his disobedient omission. That would be going a long way to holding that a company can seldom or never have the protection of that part of s. 23 of the Criminal Code which refers to acts or omissions occurring independently of the exercise of the will. I do not accept this.�

His Honour then went on to hold that Hunt v. Maloney[dccix]¹⁹�applied to companies and said that it was implicit in the magistrate�s decision that it applied to the facts of that case.

N1>With all due respect to his Honour, the possibility of restriction on the right a company may have to claim the protection of s. 23 does not necessitate it being treated as a natural person in every way. If indeed, a company has less right to claim such protection, it surely springs from the very nature of its corporate being. A company does not give life to itself, it is created by human beings, and normally for a purpose advantageous to them. If, as a consequence, certain disadvantages flow, that in my mind, is irrelevant.

N1>I also distinguish in part the judgment of Gibbs J at p. 112 where his Honour discusses the question of general instructions given by the general manager which were disregarded by the company�s branch manager at Warwick where the offence took place. It is my view that s. 23 must be related to the offence charged, not general instructions concerning complying with the law. In relation to the offence charged it was the branch manager who had the relevant knowledge and if it was within the delegated authority he had as branch manager to exercise his mind in relation to the manner of purchasing on the company�s behalf, I believe his was the will of the company for the purpose of this particular offence. The general�s manager�s instructions in my view, went to mitigation of penalty only.

N1>The last Queensland case referred to was Kehoe v. Dacol Motors Pty. Ltd.[dccx]²⁰�a case concerning a false representation as to the condition of a truck sold by the defendant company. I do not think this case takes the law any further. Amongst other things, the decision turned on the failure of the prosecution to prove beyond reasonable doubt that a mistake had not been made, and in fact to identify who it was who actually made the representation complained of which in turn led to a presumption that that person could have been an entirely innocent agent. Although the Judges discussed generally the protection companies enjoy by virtue of s. 23 of the Code, it may well be that one day cases such as this will be held to be inappropriate to the circumstances of Papua New Guinea in accordance with Sch. 2.2(1)(b) of the Constitution. Being Queensland cases, they are persuasive only, but they are important as our Code was inherited from there. However, I hope we can develop our law in Papua New Guinea in such a fashion as will avoid one having to say what Andrew J said at p. 81 of Kehoe�s case[dccxi]²¹:

�This result may be regarded as unfortunate. It is clear that some person has performed work on the subject vehicle which results in the perpetration of a rather disgraceful fraud on the youth Cloherty.�

In the circumstances of this case, on the evidence before the Magistrate, I am satisfied that the man Kaupa was on the day of these offences, to use Lord Parker�s words quoted above in control of the �effective management� of the appellant�s business at Gumine and s. 23 cannot be relied on.

There is a third reason why this appeal must fail. The appellant had been warned that the Prices Regulation Act was being disobeyed at its Gumine store. It chose to ignore the warning. Knowing the law was being broken by its employee, it permitted that situation to continue. In the light of the findings of the Magistrate in this regard it cannot be said that these offences occurred �independently of the will� of the appellant.

In all the circumstances I do not propose to differentiate between �acts� and �omissions� as the learned Magistrate did. He did so in an attempt to do justice, but such a differentiation involves complexities which may better be left for later decision in another case.

For the above reasons the appeal will be dismissed and the convictions and penalties imposed by the learned Magistrate confirmed.

Appeal dismissed.

Solicitors for the appellant: G. R. Rissen & Co.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.