Commonwealth Director of Public Prosecutions v Jovanovic
[2013] SASCFC 33
•1 May 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v JOVANOVIC
[2013] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Peek)
1 May 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application by the Commonwealth Director of Public Prosecutions for permission to appeal to the Full Court in private - appeal against judgment of a Supreme Court Judge allowing the respondent to withdraw her pleas of guilty in the Magistrates Court in respect of counts 1 and 2, charges of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth) - the Director argues that the Judge erred in granting permission to the respondent to withdraw her pleas of guilty to counts 1 and 2.
Held: permission to appeal to the Full Court granted - the Director's grounds are reasonably arguable.
Criminal Code (Cth) s 135.2; Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) s 66A, referred to.
Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243; Jones v Commonwealth Services Delivery Agency [2012] SASC 106; Jovanovic v The Commonwealth Director of Public Prosecutions; Jovanovic v Police [2012] SASC 194, considered.
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v JOVANOVIC
[2013] SASCFC 33Full Court: Kourakis CJ, White and Peek JJ
THE COURT: The respondent Ms Jovanovic pleaded guilty on 8 June 2007 in the Magistrates Court to two counts of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth). The actus reus of the offences charged was, in each case, the omission to inform the Commonwealth of the income she had earned in the relevant period for which a parenting payment was made.
At the time the respondent entered her pleas of guilty she was advised, in accordance with a commonly held view, that recipients of Commonwealth welfare benefits were under a legal duty to inform the Commonwealth agencies of income earned by them which might affect their entitlement to benefits.
The respondent was sentenced to a term of imprisonment for those offences, and for another offence which is presently not of material concern but was released forthwith on a bond. The appellant subsequently breached that bond by the commission of State dishonesty offences. By the time the application for the enforcement of the bond was brought on for hearing the High Court had held in Director of Public Prosecutions (Cth) v Poniatowska that recipients of Commonwealth welfare benefits were not duty bound to inform the Commonwealth of their earnings.[1] However, even before the High Court handed down its decision in Poniatowska, the Commonwealth Parliament enacted the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) which imposed that duty.
[1] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
In Jones v Commonwealth Services Delivery Agency[2] Gray J held that the amendment validly and effectively imposed a retrospective obligation on recipients to inform the Commonwealth of their earnings.
[2] [2012] SASC 106.
In the decision below on this matter Gray J summarised his conclusions in Jones as follows:[3]
Section 66A sets out a statutory duty to perform an act. It places a requirement upon aperson to inform Centrelink of the occurrence of an event or change of circumstances that might affect the receipt of that person’s social security payment. Section 3 of Schedule 1 of the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) provides that section 66A applies in relation to an event or change of circumstances that occurs on or after 20 March 2000.
In Jones v Commonwealth Services Delivery Agency, I reached the conclusion that section 66A of the Social Security (Administration) Act has retroactive application. The retroactivity extends to matters occurring on or after 20 March 2000. In that decision, I set out a detailed review of the legislation and of extrinsic materials relevant to its interpretation. On the question of the extent of retroactivity, I reviewed relevant legal authority, including the recent High Court decision of Australian Education Union v General Manager of Fair Work Australia & Ors. By way of reference, I incorporate in these reasons that detailed review of legislation and legal authority.
(citations omitted)
[3] Jovanovic v The Commonwealth Director of Public Prosecutions; Jovanovic v Police [2012] SASC 194 at [30]-[31].
As to an argument that the respondent could not have voluntarily failed to provide information which she was not, at the time, obliged to provide, Gray J explained:[4]
In my view, the defendant’s contentions in respect of the issue of voluntariness confuse fact and law. The defendant admitted that she failed to inform Centrelink of her income during the specified period. That is a matter of fact. As a matter of law, namely the decision in Poniatowska, that factual failure to inform could not amount to a physical element of the section 135.2(1) offence within the meaning of section 4.3(a) of the Criminal Code as there was no legal obligation on the defendant to do so. It also could not amount to a physical element of the section 135.2(1) offence within the meaning of section 4.3(b) of the Criminal Code as there was no statutory duty as that section requires. However, that does not detract from the fact that the defendant failed to inform Centrelink. The defendant has admitted that she knew or believed that she was not eligible to receive the financial advantage that she obtained. Her failure to inform Centrelink was a voluntary act having regard to the retroactive operation of section 66A.
(citation omitted)
[4] Jovanovic v The Commonwealth Director of Public Prosecutions; Jovanovic v Police [2012] SASC 194 at [38].
Nonetheless Gray J permitted the respondent to withdraw her guilty pleas for the following reasons:[5]
The unusual feature of the present proceedings is that the pleas of guilty were entered with the Magistrate, the prosecution and the defence all under a misapprehension as to the state of the law. All had considered that the elements of the offence had been made out when, at the time of the pleas, that was not the case. As is evident from my reasons in Jones v Commonwealth Services Agency, the law has been amended retroactively to create the obligation on the defendant to have informed Centrelink of her change of circumstances.
In my view, the defendant has not had the opportunity of entering a plea to counts 1 and 2 on the compliant with a full understanding of the elements of the offence. She should have that opportunity. Accordingly, the defendant should be given permission to withdraw her plea to counts 1 and 2 and the convictions entered in consequence of that plea should be set aside.
(citation omitted)
[5] Jovanovic v The Commonwealth Director of Public Prosecutions; Jovanovic v Police [2012] SASC 194 at [39]-[40].
His Honour remitted the matter to the Magistrates Court.
The Commonwealth Director of Public Prosecutions (the Director) seeks permission to appeal against the orders of Gray J. The Director’s grounds are reasonably arguable. Permission to appeal is granted.
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