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Crown v Clarke

(1927) 40 CLR 227


Walsh Memorial, PerthThe case revolved around this issue of acceptance and the requirement that, to be valid, acceptance must be given in response to the offer.

In this case a monetary reward was offered for information leading to the conviction of people responsible for murdering police officers. Clarke saw this reward offer in May. Clarke was charged in connection with the crime and gave a statement (in June) which led to the conviction of others. He claimed the reward.

The Court held that in providing the information leading to conviction of others Clarke was acting to secure his own release and not in response to the offer of reward. Although performance of an act (or acts) specified in an offer as constituting acceptance may be presumed to be performed in response to an offer, this presumption may be rebutted. It was rebutted in this case by the evidence of Clarke himself. There was no agreement.

Hands behind prison bars


WA Government (Crown) offered a monetary reward for information leading to the arrest and conviction of people responsible for the murder of two police officers. Clarke was arrested in connection with the murders and made a statement to police about the murders which led to the conviction of other men. Clarke was released and subsequently claimed the reward.

Acting Chief Justice Isaacs summarised the facts as follows [at page 231]

... The information for which Clarke claims the reward was given by him when he was under arrest with Treffene on a charge of murder, and was given by him in circumstances which show that in giving the information he was not acting on or in pursuance of or in reliance upon or in return for the consideration contained in the proclamation, but exclusively in order to clear himself from a false charge of murder. In other words, he was acting with reference to a specific criminal charge against himself, and not with reference to a general request by the community for information against other persons. It is true that without his information and evidence no conviction was probable, but it is also abundantly clear that he was not acting for the sake of justice or from any impulse of conscience or because he was asked to do so, but simply and solely on his own initiative, to secure his own safety from the hand of the law and altogether irrespective of the proclamation.

Justice Higgins provided some further background, including a timeline [emphasis added]:

[page 238] ... The murders were committed towards the end of April 1926; the proclamation of reward was issued on 21st May; the information was given by Clarke on 10th June and at the trial. One of the murderers, Treffene, was arrested on 6th June, with Clarke; the other, Coulter, was arrested on 10th June; both were indicted in August and convicted in September of the murder of Walsh; there was an appeal to the Court of Criminal Appeal, which failed; and, after the failure of the appeal, Clarke, on the suggestion of Inspector Condon, for the first time thought of the reward and decided to claim it. But he had seen the proclamation in May. On 6th June, Clarke gave false information in order to screen the murderers; and, as he says, "I had no intention then of doing anything to earn the reward. ... On 10th June, I began to break down under the strain. Manning took down my statement on 10th June at my request. I had no thought whatever then of the reward that had been offered. My object was my own protection against a false [239] charge of murder. ... Up to 10th June I had no intention of doing anything to earn the reward. At the inquest" (where he gave evidence without asking to be allowed to give evidence) "I was committed for trial as an accessory. ... When I gave evidence in the Criminal Court I had no intention of claiming the reward. I first decided to claim the reward a few days after the appeal had been dealt with. Inspector Condon told me to make application. I had not intended to apply for the reward up to that date. I did not know exactly the position I was in. Up to that time I had not considered the position ... I had not given the matter consideration at all. My motive was to clear myself of the charge of murder. I gave no consideration and formed no intention with regard to the reward."

Man under arrest in handcuffs


The trial judge held that there was no contract because Clarke did not accept the Crown's offer.

Held (Supreme Court)

The majority of the Supreme Court (Full Court) held that, having fulfilled the conditions of the reward, a contract was created between Clarke and the Crown. Motive was not relevant.

Dissenting, Justice Northmore stated:

[page 121] ... the petitioner, with no intention of accepting the 'Offer of the £1,000 reward, but moved thereto by the desire to clear himself from the charge of murder, gave the information to the police, which he now claims entitles him to the reward. ...

It is elementary law that in order to create a contract between two parties there must be an offer by one party, an acceptance of that offer by the other party and a notification of the acceptance to the party making the offer. It has, however, been decided that in the case offer of a reward for information to be supplied, or upon the performance of a specified condition, the acceptance of the offer by the giving of the information or the performance of the specified condition operates as a notification of the acceptance and creates a valid contract. But in no case has it been held that the mere giving of the required information amounts to acceptance of the offer, when, as in this case, the person giving the information has at the time no intention of accepting the offer. Knowledge of the offer of the reward, prior to the giving of the information, has always been taken to be necessary to such an acceptance of the offer. When knowledge of the offer is shown, then, in the absence of evidence to the contrary, an intention to accept the offer has been presumed from the giving of the required information, but in the present case that presumption is rebutted by the evidence of the petitioner himself, who stated that when he gave the information he had no intention of claiming the reward.

Held (High Court)

Clarke gave information to secure his own release and not in response to the offer for reward (it didn't help Clarke's case that he admitted this). To be effective as an acceptance the information needed to be ‘given in exchange for the offer’.

The appeal was allowed and the judgment of the trial judge restored.

Acting Chief Justice Isaacs

Considered that Clarke had neither a 'legal nor a moral claim to the reward'. Legally, Clarke had not accepted the offer; in providing the information he was acting to secure his own release and not in response to the offer of reward.

[page 231] He has, in my opinion, neither a legal nor a moral claim to the reward. The learned Chief Justice held that [232] Clarke never accepted or intended to accept the offer in the proclamation, and, unless the mere giving of the information without such intention amounted in law to an acceptance of the offer or to performance of the condition, there was neither "acceptance" nor "performance," and therefore there was no contract.... Motive, though not to be confused with intention, is very often strong evidence of that state of mind, both in civil and criminal matters. ... [233] It is unquestionable ... that to create a contractual obligation there must be both offer and acceptance. It is the union of these which constitutes the binding tie, the obligatio. The present type of case is no exception. It is not true to say that since such an offer calls for information of a certain description, then, provided only information of that description is in fact given, the informant is entitled to the reward. That is not true unless the word "given" is interpreted as "given in exchange for the offer" - in other words, given in performance of the bargain which is contemplated by the offer and of which the offer is intended to form part. Performance in that case is the implied method of acceptance, and it simultaneously effects the double purpose of acceptance and performance. But acceptance is essential to contractual obligation, because without it there is no agreement, and in the absence of agreement, actual or imputed, there can be no contract. Lord Kinnear in Jackson v Broatch said: "It is an excellent definition of a contract that it is an agreement which produces an obligation."

... [235] The controlling principle, then, is that to establish the consensus without which no true contract can exist, acceptance is as essential as offer, even in a case of the present class where the same act is at once sufficient for both acceptance and performance. But acceptance and performance of condition, as shown by the judicial reasoning quoted, involve that the person accepting and performing must act on the offer.


Instances easily suggest themselves where precisely the same act done with reference to an offer would be performance of the condition, but done with reference to a totally distinct object would not be such a performance. An offer of £100 to any person who should swim a hundred yards in the harbour on the first day of the year, would be met by voluntarily performing the feat with reference to the offer, but would not in my opinion be satisfied by a person who was accidentally or maliciously thrown overboard on that date and swam the distance simply to save his life, without any thought of the offer. The offeror might or might not feel morally impelled to give the sum in such a case, but would be under no contractual obligation to do so.


[236] On the question of fact whether Clarke in making his statement of 10th June acted upon the offer in the proclamation, the learned [237] Chief Justice, who saw and heard him give his testimony, answered that question in the negative. ... The learned Judges of the Full Court do not appear to have thought differently on that point.

[footnotes omitted; emphasis added]

Justice Higgins

Allowed the appeal. On a policy point observed:

[238] It must be clearly understood, however, that we, as a Court, have no responsibility for the policy of the Government in resisting this claim. As the Chief Justice of the Supreme Court has said, Clarke gave evidence which was of the greatest value to the Crown in the prosecution of Coulter and Treffene, and without that evidence there would have been no case which could have been left to the jury against them. The refusal of the Crown to pay the reward in this case is likely to weaken the efficacy of such a bait when the Crown seeks information from accessories to crimes hereafter. [emphasis added]

On the legal point:

[238] Clarke cannot succeed in this action unless he can establish a contract between the Crown and himself. I think that there was no contract. ... I shall assume, at present, that Clarke strictly fulfilled all the conditions of the promise held out by the proclamation. ...

[239] [The statements of Clarke that when providing information, including by giving evidence, he did not intend to earn the reward and was motivated by a desire to clear himself of charges] show clearly that he did not intend to accept the offer of the Crown, did not give the information on the faith of, or relying on, the proclamation. He did not mentally assent to the Crown's offer; there was no moment of time at which there was, till after the information was given, as between Clarke and the Crown, a consensus of mind. Most of the cases turn on the communication of assent, from the "offeree" to the "offeror"; communication is necessary, and it may be by act as well as by words; but there can be no communication of assent until there be assent. ... The distinction should be clear between the essential mental assent, and the essential communication of that assent ...

[241] Clarke had seen the offer, indeed; but it was not present to his mind - he had forgotten it, and gave no consideration to it, in his intense excitement as to his own danger. There cannot be assent without knowledge of the offer; and ignorance of the offer is the same thing whether it is due to never hearing of it or to forgetting it after hearing. But for this candid confession of Clarke's it might fairly be presumed that Clarke, having once seen the offer, acted on the faith of it, in reliance on it; but he has himself rebutted that presumption.

[emphasis added]

Justice Starke

Agreed the appeal should be allowed - there was no contract:

[243] ... the learned Judge who tried the action ... found that he did not act on the faith of, or in reliance upon, the offer or with any intention of entering into any contract. Mutual assent or a consensus of wills is essential in English law to the formation of a contract. However, in the law of contract the offer of a reward addressed to the world at large stands in a somewhat anomalous position, and it is argued that the performance of the conditions of such an offer is an acceptance of it. ... In Carlill v Carbolic Smoke Ball Co it is said that the general offer of a reward is an offer made to any person who acts upon the faith of or in reliance upon that offer and performs the conditions specified in it. ... Such an offer is capable of acceptance by a number of persons but the person entitled to the reward depends upon the terms and nature of the offer .... And previous communication of its acceptance is not required (Carlill v. Carbolic Smoke Ball Co.). ...[244] ... In my opinion the true principle applicable to this type of case is that unless a person performs the conditions of the offer, acting upon its faith or in reliance upon it, he does not accept the offer and the offeror is not bound to him. As a matter of proof any person knowing of the offer who performs its conditions establishes prima facie an acceptance of that offer .... And probably ... the performance of some of the conditions required by the offer also establishes prima facie an acceptance of that offer, but does not of course establish the right of the person so performing some of the conditions of the offer to the reward until he has completely performed them all according to the proper construction of the offer. From such facts an acceptance is probable but it is not, as was urged, "an absolute proposition of law" that one, who, having the offer before him, acts as one would naturally be induced to act, is deemed to have acted on the faith of or in reliance upon that offer. It is an inference of fact and may be excluded by evidence .... The statements or conduct of the party himself uncommunicated to the other party, or the circumstances of the case, may supply that evidence. ... the statements or conduct of the party himself uncommunicated to the other party are admissible to show the circumstances under which an act, seemingly within the terms of the offer, was done and the inducement which [245] led to the act. In the present case the statements of the petitioner himself satisfied the Chief Justice that he did not act on the faith of or in reliance upon the offer and we are unable to disturb that finding....

[footnotes omitted; emphasis added]