Department of Immigration and Citizenship v Anni Katawidjaja
[2015] VMC 44
•3 FEBRUARY 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. D12177289
DONNA ROWE Informant v ANNI KATAWIDJAJA Accused
MAGISTRATE: MAGISTRATE MACCALLUM WHERE HELD: MELBOURNE DATES OF HEARING: 11, 12, 13 AUGUST AND 27 OCTOBER 2014 DATE OF DECISION: 3 FEBRUARY 2015 CASE MAY BE CITED AS: DEPARTMENT OF IMMIGRATION AND CITIZENSHIP V ANNI KATAWIDJAJA MEDIUM NEUTRAL CITATION: [2015] VMC044 REASONS FOR DECISION
APPEARANCES:
Counsel Solicitors For the Prosecution Mr Lincoln K Crowley Commonwealth Director of Public Prosecutions
For the Accused Mr Gregory J Barns Mr Gabriel Kuek, Access Law HER HONOUR:
1. I am assisted by the detailed submissions by Counsel for the Prosecution[1] and the Defence[2] in preparing these reasons.
[1] Prosecution written submissions, 26 September 2014.
[2] Defence written submissions, 12 September 2014, and Defence Reply, 10 October 2014.
2. In these reasons, I refer to the defined term `Relevant Corporate Entities’. By that term, and I am referring to the various corporate entities described in the company search extracts dated 18 July 2011 and the summary of those extracts tendered as Exhibit “PDR3” by the Informant, Ms Donna Rowe during the hearing, and discussed at paragraphs 60 to 70 below.
QUESTIONS FOR DETERMINATION AND SUMMARY OF FINDINGS
3. Two principal questions arise for determination in this proceeding:
Question 1: Is the Prosecution able to rely on section 11.2 of the Criminal Code Act 1995 (Cth) (the Criminal Code) as an alternative basis of liability, when that alternative basis has not been pleaded in the charges alleging 111 breaches of section 245AC of the Migration Act 1958 (Cth) (the Migration Act)?
Question 2:Does the evidence disclose that the Accused aided and abetted the Relevant Corporate Entities in 111 breaches of section 245AC of the Migration Act?
4. The answer to the above questions is as follows:
a.Case law establishes that the Prosecution is entitled to rely on section 11.2 of the Criminal Code as an alternative basis of liability, when that alternative basis has not been pleaded in the charges.
b.The absence of particulars of the charges specifying the alternative basis of liability under section 11.2 of the Criminal Code did not result in the Accused failing to understand the case that she has to meet.
c.The evidence discloses that the Accused aided and abetted the Relevant Corporate Entities in the 111 breaches of section 245AC of the Migration Act.
d.The Accused has a case to answer, and her no case submission is dismissed.
e.I find the 111 breaches of section 245AC of the Migration Act proven beyond reasonable doubt.
THE CHARGES
The principal offence – section 245AC of the Migration Act
5. The Accused, Anni Katawidjaja, is charged with 111 instances of allowing, or continuing to allow, a non-citizen to work in breach of a visa condition restricting the work that the non-citizen is permitted to perform whilst in Australia, under section 245AC of the Migration Act 1958. Section 245AC of the Migration Act provides:
245AC Allowing a non‑citizen to work in breach of a visa condition
1.A person commits an offence if:
(a) the person allows, or continues to allow, a person (the worker) to work; and
(b) the worker is a non‑citizen and the person knows of, or is reckless as to, that circumstance; and
(c) the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and
(d) the worker is in breach of the condition and the person knows of, or is reckless as to, that circumstance.
2.An offence against subsection (1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless as to, that circumstance.
3.An offence against this section is punishable on conviction by whichever of the following applies:
(a) in the case of an aggravated offence - imprisonment for 5 years;
(b) in any other case - imprisonment for 2 years.
6. Section 245 AG(2)(a) of the Migration Act governs the meaning of ‘work’ and deals with the employee-employer relationship in contrast to subsection (2)(b) which deals with contractors. It provides:
245AG Meaning of work and allows to work
(1) In this Subdivision:
work means any work, whether for reward or otherwise.
(2) In this Subdivision, a person allows a person to work if, and only if:
(a) the first person employs the second person under a contract of service; or
(b) the first person engages the second person, other than in a domestic context, under a contract for services; or
(c) the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or
(d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services.
7. The Prosecution relies in this case on section 245AG(1) which provides that `work’ means any work, whether for reward or otherwise, as well as 245AG(2)(a) which provides that `a person allows a person to work if, and only if, the first person employs the second person under a contract of service.’
8. The 111 charges relate to 21 overseas students who were granted a student visa by the Department of Immigration and Border Protection, formerly known as the Department of Immigration and Citizenship (DIAC) who commenced a course of study in Australia, and who are alleged to have breached their visa conditions by working under contracts of service in excess of the permitted 20 hours per week during school term. The students’ names and the relevant charge numbers are set out in the first two columns of Attachment A to these reasons.
9. Student visa holders studying in Australia are able to work unlimited hours during the scheduled course breaks. The Prosecution alleges that on each of the occasions to which the charges relate, the nominated non-citizen worked more than 20 hours in a particular week during which their course of study was in session, thereby breaching a condition of their visa. All 111 charges are in respect of breaches of section 245AC and therefore the elements are the same for all charges.
10. The Prosecution alleges that on each occasion, the international students worked at either Chaddy Mart convenience stores or Nando’s restaurant stores, and that these stores were businesses of which the Accused was the owner, proprietor, manager, agent or person responsible for the business.[3]
[3] Prosecution submissions, page 2.
11. The maximum penalty in the summary jurisdiction of the Magistrates’ Court for this offence is 12 months imprisonment and a fine not exceeding 60 penalty units ($6,600[4]) (section 4J (3)(a) of the Crimes Act 1914 (Cth) (Crimes Act).
[4] Crimes Act 1914 (Cth), section 4AA(1) ‘In the law of the Commonwealth or a Territory ordinance, unless the contrary intention appears: penalty unit means $110’.
Crimes Act 1914 – Section 4J
Certain indictable offences may be dealt with summarily
(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the Accused, by a court of summary jurisdiction.
(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:
(a)where the offence is punishable by imprisonment for a period not exceeding 5 years--a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or
(b)where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):
(a)a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;
(b)a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or
(c)both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7) This section does not apply to an offence against:
(a) section 24AA or 24AB or subsection 79(2) or (5) of this Act; or
(b) Division 80 or section 91.1 of the Criminal Code
12. Section 4B of the Crimes Act specifies how pecuniary penalties are to apply to bodies corporate.
4B Pecuniary penalties—natural persons and bodies corporate
(1) A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.
(2) Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
Term of Imprisonment x 5
where:
Term of Imprisonment is the maximum term of imprisonment, expressed in months, by which the offence is punishable.
(2A)Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.
(3) Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.
(3A)Where an Act (whether enacted before or after the commencement of this subsection) confers power to make an instrument (including rules, regulations or by‑laws but not including a law of a Territory) and specifies the maximum pecuniary penalty that can be imposed for offences created by such an instrument, then:
(a)unless the contrary intention appears, the specified penalty is taken to be the maximum penalty that the instrument can prescribe for such offences by natural persons; and
(b)where a body corporate is convicted of such an offence—the specifying of that penalty is not to be treated as an indication of a contrary intention for the purposes of applying subsection (3).
(4) Where under a law of the Commonwealth any forfeiture, penalty or reparation is paid to a person aggrieved, it is payable to a body corporate where the body corporate is the person aggrieved.
Alternative bases of prosecution
13. The Prosecution initially presented its case on two alternative bases. The first was that the Accused was liable for allowing or continuing to allow the workers to work in breach of the visa conditions on the basis that she was the principal offender, as she in her personal capacity had employed the non-citizen workers. The second basis was that she was liable for the offences on the basis that she aided, abetted, counselled or procured the commission of the offences by the principal or principals. The principal or principals in the alternative submission are the Relevant Corporate Entities which ran the various Nando’s and Chaddy Mart stores. The Prosecution alleges it was the Relevant Corporate Entities that actually employed the non-citizen workers.
14. In its opening submission, the Prosecution stated that there was a legal issue about who was the employer of the workers. It presented its case on the alternative basis, as it was unable to say precisely who was the employer of the non-citizen workers, but it asserted that the employer was either the Accused or one of the Relevant Corporate Entities, the precise identification of which was unknown. The second basis of alleged criminal responsibility relies on the extended form of criminal responsibility in section 11.2 of the Criminal Code. Section 11.2 of the Criminal Code extends criminal responsibility to a person who aids or abets the commission of an offence. It was asserted by the Prosecution that the Accused was criminally liable for aiding, abetting, counselling or procuring the offences committed by the corporate entities which employed the non-citizen workers. Section 11.2 provides:
11.2Complicity and common purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) that the other person in fact committed.
(3A)Subsection (3) has effect subject to subsection (6).
(4)A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6)Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7)If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a)is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b)is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence (emphasis added).
15. At the end of the hearing, in light of the evidence that had been adduced, the Prosecution stated that it would withdraw the first alleged basis of criminal responsibility, and the case would proceed solely on the alterative basis that the Accused had aided, abetted, counselled or procured the commission of an offence by the Relevant Corporate Entities in each instance.
Corporate basis of liability
16. The Prosecution further relies on section 493 of the Migration Act as providing a statutory basis for enabling a corporate entity to be prosecuted for an alleged offence under the Act. Section 493 provides that:
493 Conduct of directors, servants and agents
(1)Where in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)that the director, servant or agent had the state of mind.
(2)Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
(3)Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a)that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and
(b)that the servant or agent had the state of mind.
(4)Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5)Where:
(a)a person other than a body corporate is convicted of an offence; and
(b)the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
(6)A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a)the knowledge, intention, opinion, belief or purpose of the person; and
(b)the person's reasons for the intention, opinion, belief or purpose.
(7)A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
(8)A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
17. In summary, section 493(1) provides that in proceedings for an offence against the Act, to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show that:
a.the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
b.that the director, servant or agent had the state of mind.
18. Section 493(2) of the Migration Act provides that any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. The Prosecution asserts that the conduct engaged in by the Accused in allowing or continuing to allow, the student non-citizen workers to work in breach of their visa conditions, is conduct that should be imputed to the Relevant Corporate Entities pursuant to section 493.
19. The Prosecution says further that irrespective of which corporate entity within the Accused’s corporate `conglomeration’ was the particular legal employer of a particular student:
…the evidence which establishes criminal responsibility on the part of the body corporate and the means by which corporate criminal responsibility arises are identifiable and remain the same regardless of the precise identity of the company employer (i.e. requisite conduct/ physical and state of mind/ fault elements of the Accused are deemed/ imputed to the employer pursuant to section 493 of the Migration Act).[5]
[5] Prosecution submissions, page 18.
20. The Prosecution submits that pursuant to section 493(1), the state of mind of the Accused acting as a director, servant or agent of the Relevant Corporate Entities, where she has acted in breach of the Migration Act, in this case section 245AC, is to be attributed to the Relevant Corporate Entities. The Prosecution relies on, in fulfilment of the fault element of the offence, the Accused’s state of mind at the times when she allowed, or continued to allow, the non-citizen students to work in breach of their visa conditions.
Requisite conduct/ physical and state of mind/ fault elements (imputed to the Relevant Corporate Entities pursuant to section 493 of the Migration Act)
21. The Criminal Code provides that an offence consists of physical elements and fault elements.[6] The physical elements are set out in section 4.1:
[6] Section 3.1(a).
4.1 Physical elements
(1) A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
(2) In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
22. Division 5 of the Criminal Code sets out the fault elements.
5.1 Fault elements
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
5.3 Knowledge
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
SUMMARY OF MATTERS TO BE PROVEN BY THE PROSECUTION
22. In summary, in order to establish the criminal liability of the Accused, the Prosecution must prove the following matters beyond reasonable doubt:
a. that the body corporate employer, that is, the principal offender, committed an offence contrary to section 245AC of the Migration Act. In this case, the body corporate employer is one or more of the Relevant Corporate Entities;
b. that the Accused engaged in conduct that in fact aided, abetted, counselled or procured the commission of the offence committed by the principal offender; and
c. that when engaging in that conduct the Accused intended that her conduct would aid, abet, counsel or procure the commission of the offence, or an offence of the type, committed by the principal offender.
Elements of sections 245AC and 493 of the Migration Act
23. Section 245AC of the Migration Act contains the physical and fault elements that must be proven to establish that an offence was committed by the Relevant Corporate Entities in relation to each of the charges.
24. The first element is that the person allows, or continues to allow a person, in this case the non-citizen student, to work. The physical element is the conduct in doing so, and the fault element is intention (section 245AC(1)(a)).
25. The second element is that the worker is a non-citizen. The physical element is the circumstances of the worker being a non-citizen, and the fault element is knowledge of or recklessness as to this fact (section 245AC(1)(b)).
26. The third element is that the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia. The physical element is the circumstance of the visa holder being subject to the visa restriction. The fault element is knowledge of or recklessness as to this fact (section 245AC(1)(c)).
27. The fourth element is that the worker is in breach of the visa condition restricting the work that the worker may do in Australia. The physical element is the circumstance of the breach, and the fault element is knowledge of or recklessness as to this fact (section 245AC(1)(d).
28. The meanings of `work’ and `allows to work’ are set out in section 245AG, referred to above.
29. The Prosecution argues that criminal responsibility is imputed to the Relevant Corporate Entity through the conduct of the relevant director, servant or agent of these corporate entities pursuant to section 493 of the Migration Act. The Prosecution must prove beyond reasonable doubt that:
a. The Accused was a director, servant or agent of a particular body corporate and that the Accused acted within the scope of her actual or apparent authority (section 493(1)(a) of the Migration Act);
b. That the Accused acting as director, servant or agent `had the state of mind’ (section 493(1)(b) of the Migration Act).
30. With respect to the principal charge under sections 245AC and 493 of the Migration Act, in relation to the Relevant Corporate Entities, the Prosecution must prove beyond reasonable doubt the following matters:
Element 1 - persons were allowed to work or continued to work
a. The first physical element of the offence, that the body corporate allowed the non-citizens to work, or continue to work. The Prosecution asserts that this is established by the evidence of the Accused’s conduct engaged in as a director, servant or agent of the body corporate acting within the scope of her actual or apparent authority in allowing the students to work or continue to work.
b. The fault element of this offence is the intention in respect of this conduct on the part of the body corporate. The Prosecution asserts that this element is established by the evidence of the Accused’s state of mind, as a director, servant or agent of the relevant body corporate, when she allowed the students to work or to continue to work, which is taken to be conduct engaged in by the company. The Prosecution asserts that the only possible inference that arises from the evidence is that the Accused engaged in the relevant conduct intentionally.
Element 2 – the persons were non-citizens
a.The second physical element of the offence, that each person was a non-citizen.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of this aspect of the offence, recklessness on the part of the body corporate, is established by the evidence of the Accused’s state of mind as a director, servant or agent of the body corporate, when she engaged in the relevant conduct, which is taken to be engaged in by the company. The Prosecution submits that the only possible inference that arises from the evidence is that the Accused was reckless as to the fact that the persons were non-citizens, and that this state of mind is to be imputed to the Relevant Corporate Entities.
Element 3 - the non-citizens held visas with a work restrictions
a.The third physical element of the offence is that the non-citizens held a student visa that contained a condition limiting the work that they could do to no more than 20 hours per week in any week during which their course of study was in session. This element of the offence was not disputed by the Defence. In any event, the evidence adduced by the Prosecution and referred to in detail below, establishes this fact.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of recklessness on the part of the body corporate is established by evidence of the Accused’s state of mind as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct, which is to be imputed to the Relevant Corporate Entities. The Prosecution asserts that the only possible inference that arises is that the Accused was reckless as to the fact that the persons held visas restricting the number of hours that they could work during periods when their course of study was in session.
Element 4 - the students worked in breach of their visa conditions
a.The fourth physical element that the students worked in breach of their visa conditions. The Prosecution asserts that this element is established by the following unchallenged evidence. First, that the students were enrolled in relevant course of study which was in session at the relevant times the subject of each charge. Second, that they worked in the Accused’s Nando’s and Chaddy Mart stores for more than 20 hours in a given week during the relevant times that are the subject of the charges.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of recklessness on the part of the body corporate is established by the evidence of the Accused’s state of mind, as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct, which is to be imputed to the Relevant Corporate Entities. The Prosecution alleges that the only possible inference that arises is that the Accused was reckless as to the fact that the students were working in breach of their visa conditions.
Elements of section 11.2 of the Criminal Code
31. For the Accused to be found guilty of an offence under section 11.2(1) of the Criminal Code, the Prosecution must prove beyond reasonable doubt that:
a. through the deemed or imputed conduct and state of mind of the Accused as director, servant or agent, the Relevant Corporate Entities committed the principal offence under section 245AC of the Migration Act (the elements for the commission of the offence are referred to above);
b. the conduct of the Accused in fact aided, abetted, counselled or procured the commission of the principal offence (section 11.2(2)(a) of the Criminal Code);
c. the offence was committed by the Relevant Corporate Entities (section 11.2(2)(b) of the Criminal Code); and
d. the Accused intended that her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) or an offence of that type, committed by the Relevant Corporate Entities (section 11.2(3)(a) and (b) of the Criminal Code).
32. Section 11.2 of the Criminal Code does not create a separate offence. Its function is to extend criminal responsibility for offences against the Criminal Code or other laws and to describe a person’s mode of participation in the offence.[7] Further, section 11.2(5) provides that a person may be found guilt of aiding, abetting, counselling or procuring the commission of an office even if the other person has not been prosecuted or found guilty. Thus, the Accused may be found guilty of these charges without the Relevant Corporate Entities being prosecuted for the offences.
[7] R v Kaldor (2004) 150 A Crim R 271 at 79.
NO CASE SUBMISSION
33. The Accused pleads not guilty to each of the 111 charges. The Accused submits that she was at the relevant times only the director of one Chaddy Mart store. In relation to the other corporate entities, she says that she was merely the spouse of the director, Flavianus Djung. She concedes that she had some involvement in the businesses, such as store layout, and that she visited the premises, she denies that she was in effective control of the day to day operations of the Relevant Corporate Entities, and says that she was not the `hands-on’ or `controlling’ manager of the corporate structure as is alleged by the Prosecution.
34. The Accused argues that she was not the employer of the students. She says that various corporate entities employed the students. She argues that there is compelling evidence that she was not the person who actively rostered the students, and that the day to day manager was Sophie Lim (also known as Sophie Mewati), the Regional Manager of the Nando’s stores who created the rosters and informed the Accused of their content after she created them, and courtesy-copied the Accused into emails attaching the rosters. The Defence describes the email communications that were put in evidence by the Prosecution and which are examined in detail below as `ambiguous’ with respect to the roles played by the Accused and Sophie Lim. It argues that the evidence is far from clear and requests the Court to determine, based on the evidence, whether the Prosecution has established beyond reasonable doubt that each of the students were employed by one of the Relevant Corporate Entities and that the Accused aided and abetted the Relevant Corporate Entities in their breaches of the Migration Act. Specifically in relation to the emails entitled `Anni’s staff’, the Defence argues that this is a reference to groups of students that the Accused was housing, not her employees, as the Prosecution argues. The Defence says that even if the Court found that there was no doubt that the Accused was referred to in particular emails, the Court needs to assess whether the mere mention of the Accused by ‘cc’ is enough to amount to aiding and abetting.
35. The Defence argues further that the Prosecution must prove in relation to each individual charge which corporate entity it alleges committed the offence, identify the relationship of the Accused to that corporate entity and prove beyond reasonable doubt that the Accused aided and abetted that particular corporate entity. It says that it is not possible for the Accused or the Court to state which of the eight corporate entities, referred to by the Prosecution, is the principal in respect of each of the charges.[8] It argues that there is no evidence before the Court of the interaction between the Relevant Corporate Entities and the Accused.[9]
[8] Defence Reply, page 4.
[9] Defence Written Submissions, page 9, paragraph 44.
36. The charges allege that the Accused committed the offences as the principal offender. At the commencement of the hearing, the Defence put in issue whether the Prosecution was entitled to rely on section 11.2 of the Criminal Code to extend criminal responsibility to the Accused. It argued that the Accused was the wrong person charged as she was not the employer of the people named in the charges. As such, the Defence argues that the Accused cannot be liable for aiding, abetting, counselling or procuring the Relevant Corporate Entities as no offence has been committed by the Relevant Corporate Entities as the principal offender.
37. At the conclusion of the Prosecution case, Counsel for the Accused made a submission to the Court that there was no case for the Accused to answer. The Accused makes its no case submission pursuant to section 66(a) of the Criminal Procedure Act 2009 (Vic) (the Criminal Procedure Act). The test for a no case submission is set out in R v Galbraith[10] and applied by the High Court in Doney v R[11] and provides that “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty”.[12] The test for no case submissions applies equally to cases heard by a Magistrate or Judge alone. The Court must examine a no case submission by taking the Prosecution case at its highest and by drawing all inferences that are the most favourable to the Prosecution case that are reasonably open (Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323.
[10] [1981] 2 All ER 1060
[11] (1990) 171 CLR 207
[12] Ibid, p.214 – 215.
38. The no case submission is based on several arguments. The Accused argues that as a result of the defects in the Prosecution case, she has never understood the specific offence alleged against her, offending the principle in Johnson v Miller[13], per Dixon J that `a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.’[14]
[13] (1937) 59 CLR 467
[14] Ibid, p.489.
The form of the charge
39. The Defence argues that the Prosecution case is fatally flawed because all of the evidence in the Prosecution’s case points to the workers being employed by the Relevant Corporate Entities. It says that the charges, which were pleaded on the basis that the Accused was the principal, were at no stage amended to charge the Relevant Corporate Entities as the principal offenders. Furthermore, none of the charges set out the essential elements of the offences for which the Prosecution seeks conviction, such as the identity of the corporate entities that were the principal offenders, nor do they set out that the Accused was an aider and abettor of the corporate entities that employed the workers. The Defence relies on R v Pong Su (21) (2005) VSC 96 [20] (Pong Su) as authority for the proposition that as the summons in this case only specified the Accused as a principal, not as an aider and abetter, the summons is deficient and therefore the Prosecution case must fail.
40. I disagree with the argument raised by the Defence for the following reasons., The Prosecution’s interpretation of Pong Su is accurate and is to be preferred over the Defence interpretation which omits reference to the surrounding paragraphs [7]-[20]. In paragraph 12 of the Judgment, Kellam J’s reasoning on the issue is that:
Notwithstanding the fact that it is clearly permissible to charge an accused person who is an accessory with the substantive offence, rather than allege the nature of the complicity upon which the charge is based, there are cases where courts, both in England and Australia, have expressed the view that in some cases it is preferable to charge a secondary participant in a manner which specifies his participation in the offence as an accessory.
41. The Prosecution also relies on the authority in Vartuli v Ferns; Millington v Ferns [2012] ATSC 13 at [7]-[27], per Burns J, where the Supreme Court of the ACT held that (at paragraph 11):
At common law it is not necessary to frame a charge alleging the commission of an offence as principle in the second degree by using the words “aid and abet”, or either of them, in the charge, although for clarity it may be desirable to do so.
42. The ACT Supreme Court went on to state that (at paragraphs 22 to 23):
“The form of a criminal charge alleging culpability as an aider and/or abettor is a matter of procedure or practice. I see nothing in s 45, or in the Code generally, that indicates a legislative intention that it is to govern matters of criminal procedure. This is consistent with the contents of the Explanatory Memorandum to the Criminal Code 2002 (ACT), which says in relation to Chapter 2 (including s 45):
“Chapter 2 of the Bill sets out general principles of criminal responsibility, which will eventually apply to all ACT offences”.
Chapter 2 of the Code deals with matters of criminal responsibility, not criminal procedure. Section 45 does not purport to govern the appropriate form of a charge sought to be proved by virtue of its provisions. Common law practices and procedures, as developed by the courts, still govern this issue. As such, the prosecution may charge an accused with an offence, relying on the provisions of s 45, without referring to the particulars of proof set out in s 45 itself. Whether it is wise or appropriate to do so is debateable. Undoubtedly the Crown can be called upon to make clear the way in which it alleges the accused has committed the offence by the provision of particulars prior to any trial, or as part of its opening at trial. Criminal lawyers have long been aware of the need to establish the basis of the Crown case through particulars, a practice which unhappily appears to have fallen into desuetude in this Territory”.
43. The Prosecution relies on R v Serratore[15] as further support for their argument that it is appropriate and permissible to plead the commission of the substantive offence, but to put the case on two alternative bases, as either principal or accessory to the principal offender without specifying the alternative basis in the charge. In R v Serratorre, there was circumstantial evidence that the accused had killed his girlfriend, but there was also evidence that he had arranged to have her killed by another person. The only evidence against the accused was circumstantial. The Prosecution was not required by the trial Judge to plead the alternative methods of murder in two alternative counts, one charging him as a principal and one charging him as a principal in the second degree or an accessory before the fact. The trial Judge allowed the Prosecution to put its case, over the objection of the Defence, that either the Accused had killed his girlfriend, or had procured another person to do so and the jury was not required to say on which basis it found the accused guilty.[16] In Serratorre, it was contended by the Accused that it was not only technically inappropriate as a matter of pleading, but that liability as an accessory is incompatible with liability as a principal and that for the Prosecution `to proceed on both bases, there should have been two, and that the alternatives should not have been permitted to have been left to one count’ (at paragraph 160). After reviewing the authorities on this point, James J held at paragraph 222 that:
There is nothing in the legislation, practice or authorities which would prevent such a charge as this or the Crown proceeding as they did. It would be entirely strange that only one sub-class of those complicit in a crime should have to be separately charged or that doubt as to the degree of complicity should produce an acquittal where all degrees would not in law be equally liable.
[15] [1999] NSWCA 377 at [154]-[247]
[16] Serratorre, paragraph 2.
44. Based on the above authorities, I accept the Prosecution argument that case law permits the Crown to allege that a person has aided, abetted, counselled or procured the commission of an offence by another unknown person who committed the principal offence without specifically pleading the alternative basis of liability. I also accept that a person may aid, abet, counsel or procure an unknown principal offender, provided that the Court is satisfied that the principal offence was committed by someone and that the accessory aided, abetted, counselled or procured the commission of the offence by the principal.
The failure to provide particulars
45. The question then becomes, as was foreshadowed in Pong Su and R v Kaldor (above), whether this was a case in which it was preferable that the charges specify the alternative basis of liability, and whether in not doing so, the Accused has not been able to fairly and properly understand the case that she has to meet. The Accused alleges that as a consequence of the failure of the Prosecution to adequately particularise the case, she has at no stage understood the case she has to answer. There was discussion both in the written and the closing oral submissions about whether the Accused was `surprised’ by the Prosecution relying on the alternative accessorial form of liability. In closing, Counsel for Defence clarified that the Accused does not say that she is surprised by the reliance of the Prosecution on the accessorial form of liability, but she complains that despite having requested on several occasions further and better particulars in relation to the offences as pleaded, the requests have been denied, and as a result, the Accused has never been in a position to know the true case against her.
46 The Defendant’s Submissions at paragraph 12(b) state that there have been numerous requests on behalf of the Accused by her legal representatives seeking further and better particulars of the charges, none of which were responded to. The Accused argues that even if the charges were capable in law, of being `morphed’ into a different charge,[17] they were lacking in particularity, the effect of which is that she is not informed of the case that she has to meet. It is argued that it is impossible to understand from the charge sheet who was aided and abetted and in what way the aiding and abetting took place.
[17] Defendant’s Written Submissions 12 September 2014, p. 7.
47 I do not agree that the Accused has been placed in a position where by the absence of particulars in the charges she has not been able to understand the case that she has had to meet, for the following reasons. Firstly, the Prosecution made it clear at the outset of the hearing, before any evidence was lead in relation to any of the charges, that there were two alternative bases of liability. The Prosecution and the Defence have both submitted that prior to the hearing there has been ongoing discussion in relation to the particulars. The Prosecution has submitted that verbal particulars were provided in the course of a discussion between Counsel more that six months prior to commencement of the hearing, and subsequently confirmed in written correspondence.[18] The Defence admits that these verbal particulars were provided.[19] Moreover, the Defence did not raise any issue about the failure of the Prosecution to particularise the offences during the hearing. Further, the Prosecution states and I accept, that it has been unable to give greater particularity in relation to the charges, as the corporate entities that employed the students were unknown.
[18] Prosecution’s Written Submissions, 26 September 2014, p. 6.
[19] Defendant’s Reply, paragraph 6, page 2.
48 The wording of the charges to which the other co-accused pleaded guilty is an irrelevant consideration, as is the asserted subject of the investigation of the Accused by DIAC as principal rather than aider or abetter. Furthermore, I do not accept the Defence submission that the Prosecution has at all material times considered the Accused to be the principal. The Prosecution stated both in its opening, prior to the leading of any evidence, and in its written submissions that it deliberately did not specify the alternative basis of liability in the charges, as it was unable to precisely identify who was the employer of the non-citizen students. I specifically inquired of Counsel for the Defence during the opening on the first day of the hearing whether the Accused was suggesting that she was prejudiced or surprised by the Prosecution proceeding on the basis of two alternative forms of liability.[20] Whilst Counsel for the Defence noted that the issue of particulars had been ‘flagged’, no request for an adjournment was made.
[20] Transcript, Day 1, p-21.
49 The Defence submits in support of its argument regarding the inadequacy of the charges, that section 245AC creates two separate offences, the first concerning natural persons and the other concerning bodies corporate. The provision clearly states that there is one offence, with different penalties applying to individuals and corporations, and that breaches of the provision by corporate entities are to be treated in accordance with section 4B of the Crimes Act which specifies how pecuniary penalties are to apply to bodies corporate (see above).
50 For these reasons, I find that the charges are not deficient, and the Prosecution is not precluded from relying on the alternative basis of accessorial criminal responsibility in section 11.2 of the Criminal Code.
Corporate liability
51 The Defence contends that where a body corporate is guilty of an offence, the liability of the natural person whose conduct is relied on to constitute the elements of the offence committed by the body corporate, depends partly on the relevant statutory provisions creating the offence, and also partly on whether the natural person was acting as director, manager or agent of the body corporate. It says that the Prosecution has led no evidence in respect of the corporate entities that employed the workers, and as such, it is impossible for the Court to decide the physical elements and the fault elements pertaining to each of the Relevant Corporate Entities.[21]
[21] Defence Submissions, pages 8,9 and 12.
52 The Defence argues, therefore, that if the Court cannot be satisfied that the corporate entities were guilty of the principal offences under section 245AC of the Migration Act, it cannot convict the Accused of aiding and abetting the commission of the offences. The Defence argues further that there is no evidence before the Court of the interaction between each corporate entity in question and the Accused.
53 This argument is linked to the Defence’s argument that there is insufficient evidence before the Court for it to identify the facts that constitute the necessary elements of the offences. The Defence argues that:
a.it is not clear which corporate entity employed each of the workers at the relevant times;
b.there is no evidence of the physical or fault element of each of the corporate entities that employed the workers so as to permit the Court to conclude that they are guilty of the principal offences;
c.there is no evidence of agency, delegation, authority etc. between the corporate entities and the Accused; and
d.the seized materials were business records for the corporate entities but they were not the Accused’s business records. While they might be relevant to, and admissible in a Prosecution against the corporate entities, the Prosecution has to satisfy the Court that they are also relevant to and admissible in a prosecution against the Accused.[22]
[22] Defence Written Submissions, p.12
54. The Prosecution argues that the evidence adduced at the hearing establishes unquestionably that the Accused was the owner, manager, proprietor, director, servant, agent or person responsible for the operation of the Relevant Corporate Entities that employed the non-citizen workers. The Prosecution argues further that a number of the Relevant Corporate Entities were involved with the running and operation of the Nando’s and Chaddy Mart stores which employed the students, and that those entities comprised an ‘amorphous corporate structure’ in respect of which the Accused was clearly the person who had overall authority, responsibility and management.[23]
[23] Prosecution Written Submissions, pages 10-11.
55. The Prosecution submitted that it was unable, because of the elaborate corporate structure[24] to identify a particular employer in respect of a particular charge.[25] Furthermore, the Prosecution submitted that the various Nando’s and Chaddy Mart stores were operated with fluidity and informality, whereby an employee might be working for one store, and paid by another entity.[26] Nevertheless the Prosecution argues that:
…the evidence adduced at the hearing proves with absolute certainty that, irrespective of which corporate entity was the legal employer of a particular worker, the employer must necessarily have been a company within a corporate structure in respect of which the Defendant was a relevant director, servant or agent, acting within the scope of her actual or apparent authority as the person who had the overall management of all of the Nando’s and Chaddy mart stores. Consequently, any alleged inability on the part of the Prosecution to be able to identify the particular corporate entity employer is specious argument without substance. The Prosecution is able to identify the corporate entity employer with certainty, viz. it was at least one of the identifiable companies within the amorphous corporate conglomeration controlled by the Defendant.
Irrespective of which corporate entity within the Defendant’s conglomeration was the particular legal employer in respect of a particular worker for a particular charge, the evidence which establishes criminal responsibility on the part of the body corporate and the means by which corporate criminal responsibility arises are identifiable and the same regardless of the precise identity of the company employer (i.e. requisite conduct/ physical and state of mind/ fault elements of the Defendant are deemed/ imputed to the employer pursuant to section 493 of the Migration Act). Given that the Defendant was a Director, servant or agent of all of the companies within that structure, the Defendant cannot seek to avoid criminal responsibility for aiding, abetting, counselling or procuring any of those companies to commit an offence contrary to section 245AC by submitting that the Prosecution is unable to identify the particular legal entity which employed a particular subject worker.
[24] Submitted by the Prosecution at the request of the Court, as an aide to the Court.
[25] Prosecution submissions, paragraph 54.
[26] Prosecution submissions, paragraph 54, footnote 19.
56. I disagree with the arguments raised by the Defence on this point. Section 493 of the Migration Act provides a statutory basis for enabling a corporate entity to be prosecuted for an alleged offence under the Act. Section 493(2) provides that any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution of an offence, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
57. Section 11.2(1) of the Criminal Code provides that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
58. Therefore, on a plain reading of the two relevant provisions, section 245AC of the Migration Act allows for a corporate entity to be directly criminally liable for offences under the Migration Act as the principal where it can be shown that that a director, servant or agent of the body corporate acted within the scope of his or her actual or apparent authority, and that state of mind is imputed to that of the company, and section 11.2 of the Criminal Code extends the criminal liability of a corporate offender to an individual person who aids, abets, counsels or procures the commission of the offence by the principal.
The Relevant Corporate Entities
59. The Prosecution case is that the Relevant Corporate Entities which operated the stores that employed the students committed the 111 breaches of the Migration Act, and the Accused aided and abetted the commission of the relevant breaches of section 245AC of the Migration Act. The Prosecution argues that the evidence adduced at trial unquestionably establishes that the Accused was a director, servant or agent of the Relevant Corporate Entities that employed the non-citizen workers, whatever their precise identity might be. The evidence before the Court with respect to the identity of the Relevant Corporate Entities that employed the students is as follows.
60. The Prosecution tendered evidence through Ms Donna Rowe[27], the Informant, of company searches and extracts dated 18 July 2011, together with a summary of those extracts created by the Informant regarding the Relevant Corporate Entities that it alleges were involved in the running and operation of the various Nando’s and Chaddy Mart stores, and which it alleges were under the effective control of the Accused.
[27] Exhibit PDR3.
61. Those searches and extracts dated 18 July 2011 show the position in and shares held by the Accused and the Accused’s husband in the ‘Relevant Corporate Entities’. They show that the Accused was at the relevant times:
a.the sole director of Multivic Pty Ltd, and joint shareholder of Multivic Pty Ltd with her husband;
b.the sole director of Chaddy Mart Pty Ltd, with Multivic Pty Ltd being the sole shareholder of Chaddy Mart Pty Ltd;
c.the co-director of Djung Holdings Pty Ltd, together with her husband, and joint shareholder of Djung Holdings Pty Ltd with her husband;
d.the sole director and shareholder of Funnai Investments Pty Ltd. The summary states that this company no longer exists, but in its place there is a company by the name of The Trustee for Funnai Investments Trust, trading as Nando’s Hughesdale.
62. The company extracts show that there were at the relevant times six additional companies under the control of Flavianus Djung, the Accused’s husband as director or co-director (with a person other than the Accused). These companies are Multiline Distributors Pty Ltd (sole director), Riben Training and Consulting Pty Ltd, Ozan Venture Pty Ltd, Benandos Pty Ltd (with the Accused being one of the shareholders in this company), Nathandos Pty Ltd (with the Accused being co-owner of the shares with her husband), Ozan Quatro Pty Ltd (with the Accused being a shareholder), Shasandos Pty Ltd (with the Accused being co-owner of the shares with her husband), and Juliandos Pty Ltd (with the Accused being co-owner of the shares with her husband). The Prosecution submits that each of the companies listed above, of which the Accused’s husband was director or co-director, were trading as various Nando’s stores, with the Accused being the person in effective control of all of the companies.
63. The Prosecution asserts in its written submissions[28] that Multiline Distributors Pty Ltd acted as trustee for various unit trusts with the Accused’s husband as sole director, and the unit trusts traded as various Nando’s stores. No corporate extracts or other documentation was provided to the Court in relation to the unit trusts, their link to the Nando’s stores or to Multiline Distributions Pty Ltd. Included in the summary of corporate entities provided by the Informant by way of tender[29] are the names of the unit trusts and trading names of the various Nando’s businesses.[30] This summary was not objected to by the Defence and in the absence of any specific dispute as to this information, I have accepted its content.
[28] Paragraphs 81(4) and (5) and 82.
[29] See Exhibit PDR3.
[30] Transcript, p.192.
64. Whilst the company extracts tendered by the informant do not reveal the trading names of these companies nor details about the unit trusts, it is clear from the evidence of the witnesses, that the entities referred to in the company extracts tendered by the Informant were operating the Nando’s and Chaddy Mart stores. Adina Atmaja gave evidence that there were about 13-14 Nando’s stores[31] and Muliani Thedja said that there were around 13 Nando’s stores.[32] Indri Sutanti gave evidence when shown the Employee Collective Agreement 2007[33] that each of the businesses described in that agreement had the name Nando’s and that Multiline represented some of the Nando’s businesses `joined together.’ She said that some of the Nando’s stores were `separate’ (for example Nando’s Clayton and Nando’s Lysterfield) but that most were `joined’ under Multiline Distributors.[34] Ms Sutanti gave evidence that Ozan Quatro was Nando’s Clayton, Ozan Venture was Nando’s Lysterfield, Bernandos Pty Ltd was Nando’s Narre Warren and Multiline Distributors was `all other Nando’s.[35]
[31] Transcript, p.58.
[32] Transcript, p. 211.
[33] P3AS1 and PGH1, Transcript, p.181.
[34] Transcript, p.180.
[35] Transcript. p.181.
65. The MYOB and Excel pay records for each of the students, including the Payroll Activity Summaries which are contained in the revised materials from Exhibits P1 and P2 demonstrate that the students were variously employed by the Relevant Corporate Entities.
66. With respect to the stores operated by Chaddy Mart Pty Ltd, Mr Gunawan Haranto gave evidence that there were six Chaddy Mart stores, and five of these stores were situated in Chadstone, Burwood, Clayton, Mulgrave and Box Hill.[36] He also said that Multivic Pty Ltd was the head office and the warehouse for Chaddy Mart goods and products.[37] Muliani Thedja gave evidence that Multivic Pty Ltd was the head office for all Nando’s and Chaddy Mart stores[38] and that there were around 5 Chaddy Mart stores, but that they have all since been closed.[39]
[36] Transcript, p.77
[37] Transcript, p.78.
[38] Transcript, p.210.
[39] Transcript, p.211.
67. It is clear on the face of the company searches that the Accused is the sole director of Chaddy Mart Pty Ltd and Multivic Pty Ltd. According to the evidence given by the witnesses at hearing, which is set out in detail below, Multivic Pty Ltd played a key operational role in respect of the employment of all of the non-citizen workers who are the subject of these charges as Multivic Pty Ltd was the head office and pay roll for all of the Nando’s and Chaddy Mart stores. There is evidence that Chaddy Mart Pty Ltd was the employer of students as the name of the company appeared on pay advice of the students (see below). The Accused as director of these companies was clearly in operational control and responsibility, and the evidence of the witnesses summarised below confirms this.
68. The evidence of each of the witnesses established that it was not the Accused who had personally employed each of the students, but that the students had entered into contracts of employment with various corporate entities within the structure all of which were controlled by the Accused. For example:
a.Selvia Louw acknowledged that her pay slip stated that she had been paid by Chaddy Mart Pty Ltd.[40]
[40] Transcript, p.51.
b.Adina Atmaja stated that she had signed an employment agreement with Multivic Pty Ltd. She said that there was a further workplace agreement that she was aware of, and that agreement was for her to work for Nando’s Chadstone, which was owned by Multivic Pty Ltd.[41]
[41] Transcript, p. 65.
c.Gunawan Hartanto, the General Manager of the Chaddy Mart stores, stated that all employees had to sign a contract of employment with Chaddy Mart Pty Ltd as employer.[42] That contract outlined the roles, responsibilities and duties of the employee and the rate of pay.[43] An Employee Collective Agreement 2007 was tendered during Mr Hartanto’s testimony,[44] stating the parties to the agreement were Multiline Distributors Pty Ltd, Ozan Quatro Pty Ltd, Ozan Venture Pty Ltd, Bernandos Pty Ltd (as the `Employer Company’) and `Employees’. Mr Hartanto said in cross-examination that he had not seen this document before as it related to Nando’s stores, and that there was no similar industrial agreement for the Chaddy Mart stores, but that all Chaddy Mart employees had signed a simple and short form contract, and the parties to that contract were the employee and Chaddy Mart Pty Ltd as the employer.[45]
[42] Transcript, p.104.
[43] Transcript, p.109.
[44] Exhibit, PGH1.
[45] Transcript, p.108.
d.Anshuman Sohal stated that in 2006 an Australian Workplace Agreement was signed by all employees. Mr Sohal identified Exhibit P3AS1,[46] headed `Offer of Employment under the Multiline Distributors Pty Ltd A/T/F Shashandos Unit Trust Australian Workplace Agreement’, dated 30 September 2006, as the contract that he had signed on accepting employment and the attached Australian Workplace Agreement as the same agreement that all employees had signed at a staff meeting regarding the Australian Workplace Agreement at Nando’s Warrugal. The employer under that agreement is described as Multiline Distributors Pty Ltd A/T/F Shashandos Unit Trust trading as Nando’s Fern Tree Gully. The Accused has signed that agreement on behalf of the Employee company, stating her position as `Manager.’ Mr Sohal confirmed in cross-examination that Multiline Distributors Pty Ltd employed him and the other worker’s at the Nando’s stores at which he worked.[47] Mr Sohal also identified the Employee Collective Agreement 2007, stating that he saw the document when he was first interviewed by Sophie Lim for the job. He said that he thought that it was the agreement that they had prior to the Australian Workplace Agreement referred to above.[48] Mr Sohal noted that the employer named in both agreements is Multiline Distributors Pty Ltd of 74 Railway Place, Chadstone, and stated that it was his understanding that Multiline Distributors Pty Ltd was the employer of the Nando’s staff, together with the other companies named in the Employee Collective Agreement 2007 being Ozan Quatro Pty Ltd, Ozan Venture Pty Ltd, and Bernandos Pty Ltd .[49]
[46] Transcript, pp.113, 134
[47] Transcript, p.134.
[48] PGH1, Transcript p.135.
[49] Transcript. p.137.
e.The evidence of Indri Sutanti has been summarised in paragraph 64 above. Ms Sutanti also confirmed that staff whose wages were paid by cheque, were paid by the company responsible for employing the staff and the company name was written on the cheque. She said that the staff working for Ozan Quatro and Ozan Venture were paid by cheque.[50]
[50] Transcript, p.183.
f.The Informant, Donna Rowe, confirmed in cross-examination her understanding that Multiline Distributors Pty Ltd was the employer of the employees at the various Nando’s enterprises.[51] She said in relation to each of the 21 students, the employer was the company stated on the contracts of employment with each of those students.[52]
g.Muliani Thedger said that she works for Multivic Pty Ltd.[53] She said that the pay slips for the staff had written on them the company that was making the payment, for example Multiline Distributors Pty Ltd[54] or the PAYG summary for Ms Selvia Louw stating that she worked for Chaddy Mart Pty Ltd.[55] She said that in all cases in the period between 2008 and 2010, the payer’s name on the PAYG payment summaries would be a company name.[56]
[51] Transcript, p.203.
[52] Transcript, p.204.
[53] Transcript, p.205.
[54] Transcript, p.249.
[55] Transcript, p.252.
[56] Transcript, p.252.
69. Contrary to the Defence submissions, there is sufficient evidence before the Court in respect of the identity of the Relevant Corporate Entities that employed the students. Although it is not possible for the Prosecution to precisely identify the particular legal entity that employed a student, the evidence before the Court clearly establishes that the employer of each of the students must have been one of the Relevant Corporate Entities. Furthermore, the authorities examined above demonstrate that it is not necessary for the Prosecution to precisely identify which student was employed by which entity in order to satisfy the criminal standard of proof.[57] However, in this case, the Relevant Corporate Entities are not entirely unknown in the sense that the employer or employers of the students must necessarily have been one of the companies within the corporate structure. The evidence of the witnesses adduced during the hearing, and summarised below, clearly shows the Accused’s relationship to the Relevant Corporate Entities, and that she was in effective control of the entire corporate operation that ran the various Nando’s and Chaddy Mart stores.
[57] See discussion above of R v Serratore.
70. In respect of the Relevant Corporate Entities that were running the various Nando’s and Chaddy Mart stores, I find for the detailed reasons set out above and below, that the evidence adduced by the Prosecution at the hearing is relevant and admissible in this Prosecution against the Accused and that it clearly establishes that the Accused had overall responsibility and authority with respect to the management and running of the Relevant Corporate Entities which operated the various Nando’s and Chaddy Mart stores, and that the Relevant Corporate Entities employed each of the non-citizen students at the relevant times.
Accessorial liability
71. The Accused argues that the liability of the natural person upon whose conduct a case is brought against a body corporate by way of prosecution as an accessory, depends on whether the conduct relied on is identical to that relied on to bring a case against a natural person.[58] The Defence relies on the statement of Dixon J in Mallan v Lee (1949) 80 CLR 198 at 216, re Wright & Ors v Wheeler Grace & Ors [1988] FCA 129 and Yorke v Lucas (1985) 61 ALR 307) that it is an ‘inversion of concepts’ for the Prosecution, having presented its case on the basis that the Accused is principal, to also contend that she was the aider and abettor of the corporate offenders.
`It would be an inversions of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.”
[58] Defence Written Submissions, page 9.
72. These authorities do not reflect current principles of law, which have been clearly set out in the Queensland Court of Appeal decision in R v Jo [2012] QCA 356. In this case, a company director charged with tax evasion was alleged to be criminally responsible for aiding and abetting his company. His Honour Fraser JA, with whom the other members of the Court of Appeal agreed, reviewed the relevant authorities and concluded that the company director could, when acting in that capacity, be guilty both as principal and as an accessory and that therefore, the Prosecution was entitled to rely on section 11.2 of the Criminal Code to extend criminal responsibility to the company director. The Court of Appeal held that the word ‘aids’ in 11.2(1) of the Criminal Code bears the same meaning that was found applicable in the authorities discussed in the following paragraphs [36 to 42].
`The $800,000 payment by Sacos was made by a number of smaller payments. The Crown case upon aiding was based upon evidence that the appellant instructed Oertel to draw cheques to make the payments, the appellant signed cheques authorising the payments, and the appellant arranged for the payments to be deposited into Auspac’s account. The appellant’s argument commenced with the uncontroversial proposition that, because the appellant was the guiding mind and controller of Sacos, the appellant’s acts in making the payments were the acts of Sacos, so that Sacos’ liability for its offence was direct rather than vicarious: Hamilton v Whitehead. From that premise the appellant argued that the appellant’s acts could not constitute aiding because, as a matter of law, aiding necessarily involves the commission of an act which facilitates and is different from the act that constitutes the principal offence.
That legal proposition cannot stand with Bray CJ’s analysis in R v Goodall. In that case the accused and another man were directors of a company. The accused was charged with an offence that, being entrusted with certain cheques in order that he should apply part of the proceeds of the cheques for specified company purposes and refund to the subscribers certain amounts, fraudulently converted part of the proceeds of the cheques to the use or benefit of the company. Certain points raised on the part of the accused at the commencement of a criminal trial were referred to the Full Court of the Supreme Court of South Australia. One of the points was whether the Crown could rely upon the several acts of the accused and his co-director and upon the acts of both those persons to show that the accused was aiding and abetting the company to commit the offences. Bray CJ, with whose reasons Jacobs J agreed, observed that if the legal existence of the company as a juristic person separate from the legal personality of its members was strictly insisted upon, and if that involved “some sort of metaphysical bifurcation or duplication of one act by one man so that it is in law both the act of a company and the separate act of himself as an individual” then “so be it”. Bray CJ concluded that “my view is that the logical consequence of Salomon’s Case is that the company, being a legal entity apart from its members, is also a legal person apart from the legal personality of the individual controller of the company, and that he in his personal capacity can aid and abet what the company speaking through his mouth or acting through his hand may have done.” Similarly, Sangster J concluded that, “[t]he company has its own separate artificial legal entity and the accused his own separate natural legal entity, but they are nonetheless separate legal entities, either of which is legally capable of aiding and abetting the other.” In Hamilton v Whitehead the High Court (Mason CJ, Wilson and Toohey JJ) expressed agreement with Bray CJ’s view.
The appellant argued that Bray CJ’s analysis was not necessary for the decision in R v Goodall but although Bray CJ referred to the question as “abstract”, his analysis, and Sangster J’s similar reasons on this point, formed the substantial ground for the Full Court’s affirmative answer to the relevant question. The appellant also sought to distinguish R v Goodall on the ground that it concerned the several actions of two directors whereas the present case concerns only the actions of one director. That is not a ground upon which the present case may be distinguished. Bray CJ focussed upon the liability as an aider or abetter of an offence by a company of “the individual controller of the company” and concluded that “the controller of a company can aid and abet the company in the commission of a crime and that his own acts can constitute both the commission of the crime by the company and the aiding and abetting of it by himself as an individual.”
The appellant argued that Hamilton v Whitehead was distinguishable because the charge against the accused in that case was not one of aiding or abetting the company of which he was a director but rather of being knowingly concerned in the commission of the offences alleged against the company. However, the High Court’s approval of Bray CJ’s analysis in R v Goodall formed an essential aspect of the High Court’s rationale for rejecting an argument, based upon a passage in Dixon J’s judgment in Mallan v Lee, that the accused managing director could not, when acting in that capacity, be guilty both as a principal offender and as an accessory.
There is no reason to think that “aids” in s 11.2(1) of the Code bears a different meaning in this respect from that which was found to be applicable in R v Goodall and Hamilton v Whitehead. Whether or not Bray CJ’s analysis was strictly necessary for the decision in R v Goodall, and whether or not it and Hamilton v Whitehead are factually distinguishable on any ground, the persuasive force of Bray CJ’s reasons and the High Court’s considered approval of them are reasons enough to reject the appellant’s argument.
The appellant referred to O’Connors Management Pty Ltd v Curry; Smith v Curry in which a company and its manager, Smith, were convicted of an offence against health legislation of using a public building to accommodate a number of persons in excess of numbers specified in the relevant certificate. Walsh J referred to provisions of liquor licensing legislation which made the conduct of the relevant business the responsibility of the appellant’s licensee and a person appointed as manager or permitted by the licensee to manage the business. After referring to Hamilton v Whitehead, R v Goodall, and other cases, Walsh J held that under the relevant statutory regimes “the actions of Smith should be viewed solely as the acts of the Company and do not give rise to the aiding and abetting of the offence by Smith personally.” That decision may be explained by Walsh J’s construction of the applicable legislative provisions. It could not in any event justify the Court in not applying the High Court’s approval in Hamilton v Whitehead of Bray CJ’s analysis in R v Goodall (authorities omitted).
73. Furthermore, in Hamilton v Whitehead[59] the High Court confines and distinguishes the authorities in Mallon v Lee on the basis that the outcome of that decision was a result of the statutory construction of the relevant provision. The High Court held that “the offence of the company consisted only in its vicarious responsibility for the act of Mallan undertaken on its behalf.”[60] In contrast to the statutory provision the subject of interpretation in Mallan v Lee, in Hamilton’s case the relevant provision spoke ‘directly to the company.’ That is, it was not a matter of vicarious liability for the acts of a servant on behalf of the company, the liability imposed upon it was direct.
” In contrast to the statutory provision under consideration in Mallan v. Lee, s.169 of the Code speaks directly to the company. It is not a case of a company being made liable for an act performed by a servant of the company on its behalf. The liability imposed is direct, not vicarious. The distinction was drawn by Viscount Haldane LC. in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (1915) AC 705, at p 713. Its significance is explained by Lord Reid in Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153, at p 170:
"I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."
149.Ms Thedja was shown a spreadsheet of rental properties that was also shown to Indri Sutanti, dated July 2010. She said she would receive this spreadsheet as part of her job in accounts, and that it was her role to make deductions from wages in relation to rent, and that the Accused instructed her to make this and other deductions for costs such as phone bills. She said that all of the 21 students were living in the rental properties, which were legally owned by either Multivic Pty Ltd, Nando’s Pty Ltd or the Accused and her husband.
150.Ms Thedja was shown the email dated 13 October 2008 that was also shown to Ms Sutanti, from Sophie Lim to Anshuman Sohal, the Nando’s Narre Warren store manager. She confirmed that she recognised the email and that she was courtesy copied into it, together with the Accused and Ms Sutanti. She was referred to the portion of the email written by Sophie Lim that states:
`I would make his shift permanent, but deleting some of them out of the roster to make up only 20 hours reflecting in the roster.’
151.Ms Thedja explained that Sophie Lim was giving this instruction to make it legal, so that the student was not working more than 20 hours per week. She said that there may be an Immigration Department check, so the roster should be amended so as not to show that the student worked more than 20 hours. She identified that person, Charles Chandra, as being on the list of 21 students who are the subject of the charges (Attachment B).
152.Ms Thedja said that she never discussed the hours that the students worked with the Accused, as that was an `operational’ matter, and her role was simply to process the pay. However, she said that separate calculations were done for the students which had worked more than 20 hours, and that these calculations were kept in an Excel spreadsheet.
153.She said that she needed to record only 20 hours in MYOB using the rate in the Collective Agreement, and she had to tell the Accused how much extra that she had to pay the staff. She said that in the beginning the students were paid in cash by the Accused. After recording the hours into Excel, she would submit the records to the Accused at the beginning in hard copy, and then later by email. Hard copies of the MYOB documents were kept in a folder in the Multivic Pty Ltd head office, and stored electronically in the computer. The Excel spreadsheets were also printed and kept in a folder in the Multivic Pty Ltd head office.
154.Ms Thedja was then shown an email dated 27 October 2008 headed `Chadstone next week roster’. She confirmed that the email is to the Accused from Sophie Lim, and she was courtesy copied into that email along with Ms Sutanti. She confirmed that this email refers to an email from Azman, the store manager at Nando’s Chadstone, and it attaches the Chadstone roster. The email states:
`Please find an attachment file for Chadstone next week roster. Just to let you know that some of Annie staff is working more than 20 hours because they don’t have enough staff for Melbourne cup.’
155.Ms Thedja confirmed that `Annie staff’ refers to the Accused and the 21 students who are the subject of these charges.
156.Ms Thedja then gave specific evidence in relation to the payment methods she used at the direction of the Accused for the students subject to these charges. Other evidence regarding the payment methods of the various students were tendered by the Prosecution as the revised material from exhibits P1 and P2.
1. Andri Andriyanto
157.Ms Thedja was shown an Excel spreadsheet dated 15 August 2009 for Andri Andriyanto. She confirmed that it was a similar type of document that was used for recording in Excel the total hours and the amounts to be recorded in MYOB, and that this type of record was used for all of the 21 students, and that it showed the hours above 20 hours that they worked during semester. She said she was advised by the Accused to record the hours in this way. That table includes the statement `Extra hrs not yet paid and will be paid on next holiday’. She confirmed that this was a reference to the `holiday pay method’ she had referred to earlier. It also refers to deductions for rental and heat.
158.She said that she never discussed the cash payment method, or the holiday pay method, but that the Accused had directed her to pay the students in this manner and she just accepted what she was told to do by the Accused.
2. Mira J Canggih
159.Ms Thedja was shown an Excel spreadsheet for the pay period 31 May 2010, for Mira J Canggih. The table states `savings hours, not yet’. Ms Thedja explained that this refers to the excess hours, so in this case, from the 51 hours that the student worked, she only processed 43.25 hours (being the pro rata allowance that the student was permitted to work over the 52 weeks in a year). The additional hours would be paid on the school holidays.
3. Charles Chandra
160.Ms Thedja was shown another spreadsheet in relation to Charles Chandra, for the pay period 29 February 2008. It states the `balance will be paid by cash by ce anni’. Ms Thedja confirmed that this note relates to the Accused and that it meant that the Accused would give the cash to Charles. Ms Thedja was shown a payslip from MYOB for Charles Chandra which is dated 29 February 2008 and relates to this previous record. It states that Charles Chandra is being paid by Ozan Quatro Pty Ltd trading as Nando's Clayton. She said that the Accused had asked for the pay to be calculated at a higher rate, namely $20.10, so that the hours that the student had actually worked could be shown as being no more than 20 hours per week. She said that the Accused had told her to calculate Charles Chandra’s pay using this method.
161.Ms Thedja was shown one of the time sheet summaries prepared by the store manager at Nando’s Warrigal for the period 1-15 April 2008 that she said would be routinely sent to her. She would use these time sheet summaries to input the students hours. Next to specific students names (Charles Chandra, Fery Gunatriyaningrum, Yierstef Clefanny and Christian Robby), there is a specific notation (a circle with a dot). Ms Thedja said that these people, being students referred to on the list (Attachment B) and the subject of these charges, had to be paid using one of the different methods of payment that she had outlined previously.
162.Ms Thedja was shown an Excel record for Charles Chandra dated 31 May 2008. It states `balance will be paid by cash by ce anni’, which she said was a reference to the Accused paying Charles Chandra for the balance of his pay by cash.
163.Ms Thedja was shown a memorandum that she (`Fang’) had written to the Accused (`cece’), entitled `Cash Payment pay 31/5/8. It states in Indonesian: `Dear cece, this is the list of staff that need to be paid by cash.’ She said that she had prepared this document, and that the amounts referred to in the table for the payment of 15 students, were to be paid to them in cash by the Accused. She said that this was the manner in which she would record the cash to be paid to the students by the Accused, and it was done for all 21 students who are the subject of these charges.
164.Ms Thedja was shown a memorandum dated 3 November 2007, signed by Charles Chandra, certifying that he had `received $400…as per Fang-Fang’s instruction.’ Ms Thedja said that this reflected part of the cash payment in respect of hours that are outside the allowable working hours, and that at one time the managers were asked to give the students the cash instead of the Accused.
4. Sigit Dwinanato
165.Exhibit P3MT7 shows the pay records for Sigit Dwinanato, another of the students the subject of these charges. Sigit’s name appears on a memorandum dated 15 April 2008 from Ms Thedger (Fang) to the Accused (cece) stipulating that she is to be paid in cash the amount of $248. The pay record for the period 31 May 2008 shows the same splitting of pay between `normal hours’ (80 hours) and `over time’ to be paid at $10/h. Also, it shows that wages are to be deducted for costs including rent and heat. The pay record shows that the student is to be paid for 30 hours at the rate of $20.10, with the statement `balance will be paid by cash’ , to be paid by the Accused.
5. Olivia Fei Fei
166.Exhibit P3MT8 shows Olivia Fei Fei’s pay records as recorded in MYOB and Excel with the total hours in the pay period of 31 August 2009 being 98.25, with 40 hours recorded as being paid at the industrial rate of $16.56 with a note stipulating that the extra hours, not yet paid, are to be paid on 30 September 2009 - that is to say, by the `holiday pay method’ of concealing the actual hours that she worked.
6. Fery Gunatriyaningrum
167.Exhibit P3MT9 shows the pay records for Fery Gunatriyaningrum for the period 31 August 2010. It shows the total of `actual hours’ worked as 106.75, with the `normal’ hours worked as 43.25. The pay slip for the period ending 15 August 2010 shows that the pay has been calculated at the rate of $45 but only 42.65 hours are shown as having been worked by the student. It also shows that the student is employed by Chaddy Mart Pty Ltd.
7.Abednego Chandra Hartanto (`Nick Hartanto’)
168.Exhibit P3MT10 shows the pay records for Nick Hartanto, a student who worked at Chaddy Mart, during the period ending 15 May 2008 as requiring the balance of additional hours worked to be paid by the Accused to the student in cash in the amount of $95.80.
8.Safura Intan Herlusia
169.Exhibit P3MT11 shows the pay records for Safura Intan Herlusia, a student that worked at Chaddy Mart for the pay period ending 15 April 2008 as having worked 40 hours at the rate of $12.06, when the actual hours worked were 113 hours, with the balance to be paid by cash by the Accused in the amount of $642.05. The record states that this student was paid under the Multivic payroll. An email from Mr Gunnawan Hartanto to the Accused dated 21 August 2008, attaching the Chaddy Mart roster for that week, notes Safura’s hours and requests input from the Accused. It states that:
`Safura has 50 hours and 1 closing shift at Nandos, and it cannot be reduced because if it is, I am concerned that CM will not be well organised. Cece, if you have anything to add, please email me, so I can make changes. Tomorrow I will email the stores.’
9. Melanie Juliana
170.Ms Thedja was shown another Excel spreadsheet for `Melanie’ for the pay period 31 August 2009. She said that it shows the normal hours as 80 hours paid at $13 per hour, with a rate of $10 for the excess hours deferred for payment as holiday pay. The related pay slip for Melanie shows that she was paid at an inflated rate of $20.10 for thirty hours, to conceal that she had worked in excess of the 20 hour limit. The record states that the student is paid under the Multivic payroll.
171.An email from Gunnawan Hartanto at head office dated 29 August 2008 to the Accused (`Cece Anni’) states:
`Ce,
Please find attached the roster for next week. Melanie & Safura have more that (sic) 60 hours. Lenny and Feri have just over 40 hours. Nyoto only has Friday 08.00-15.00. I have Karen the most because now her rate is the best at $10 ph, and she also is able to work long hours.
Armyn, asked for more shifts, his rate is $14 ph, it is up to you what you want to do. Now Armyn has 17 hrs. Thank you.
Gunn’
10. Yobel Limanto
172.Ms Thedja was shown an Excel spreadsheet for Yobel Limanto. That record shows that the student worked 98.5 hours and was paid $16.56 for 40 hours as per the Workplace Agreement, but that he was to be paid for the excess hours at a rate of $10 per hour in the holiday period.
173.An email from Sofie Lim to Yulistine Potts of Nando’s Wareca dated 27 August 2008, to which the Accused is copied, states:
`Pelase (sic) record Wang Wang and Yobel maximum 20 hours and use other name for any additional hours.’
11. Selvia Louw
174.Ms Thedja was shown a further Excel spread sheet for Selvia Louw, showing the hours that she had worked over various pay periods in 2007. Ms Louw’s hours are recorded at the rate of $20.10 for thirty hours, being the same method of payment described earlier by Ms Thedja in relation to the other students, in order to inflate the rate paid and to conceal the actual hours worked by the student. The rate of $10 per hour for overtime was paid to Ms Louw as per the Accused’s instructions and Ms Thedja said that this rate of $10 per hour was the first method of payment used by the Accused which she had described earlier.
175.Ms Thedja was shown a further document related to Ms Louw’s pay related to the pay period of 15 July 2008, which states `rate from 16/7/8’. Ms Thedja said that from 16 July 2008, for the first 80 hours the students were paid $13 per hour, and for above 80 hours, the rate was $10 per hour. All entries were made in MYOB and a net figure was entered including all expenses (e.g. for heat, rent, laundry payment and phone bills) and she was told by the Accused to use this rate to calculate the hours worked by the students. It was all recorded in MYOB as a $26 casual rate, which was the $13 hour rate, doubled. She said that this document was a note to herself, summarising the instruction that she was given by the Accused to record the finances in this way so she did not forget. From that time onwards, she said that she was using the `80 hours, $13 method’ to record the students working hours.
12. Oscar Suseno Lukito
176.Ms Thedja was shown an Excel spreadsheet for Oscar Lukito, for the pay period 31 July 2009. She confirmed that it recorded the extra hours not yet paid, but to be paid in the holiday period. This student attended another institution, by the name of Ozford.[67]
[67] See section 50 summary prepared by the Informant.
13. Lenny (Maria Macdeleni)
177.Ms Thedja was shown an Excel spreadsheet for Lenny, dated 15 May 2008. She said Lenny worked at Chaddy Mart. Ms Sutanti had previously said in relation to this document that `Maria’ went by the name of Lenny. It also records that the normal rate of pay is $12.50 per hour, with overtime at $10 per hour, but that this would be converted into 30 hours at the inflated casual rate of $20.10 per hour, and that the balance was to be paid in cash.
14. Nyoto Hartawan Njoo
178.Ms Thedja was shown an extract from an Excel spreadsheet headed `1/9/9 rent share with Nyoto $433.33/mth’. She confirmed it was one of the Excel spreadsheets kept at Multivic Pty Ltd and that it contained a notation for the rent details for Andri Andriyanto, one of the students the subject of the charges. She confirmed that it referred to the pay period dated 31 August 2009, and that the shop names listed in the spreadsheet were Nando’s stores.
179.Ms Thedja further confirmed that the spreadsheet contained a rate for `normal’ pay being $16.56 for 40 hours per fortnight, and said that only these hours would be processed in MYOB. The rate of $16.56 was the rate referred to in the Collective Agreement, and it applied to all of the staff in the Nando’s stores. She said that there was a different rate for the Chaddy Mart stores. She said that this particular entry had been recorded against the Chaddy Mart accounts in MYOB. The rent reduction referred to was also recorded in MYOB.
180.With respect to the row in the second table of the spreadsheet that states, `Extra hrs not yet paid and will be paid on 30/9/9’, Ms Thedja said that this was a reference to the excess hours that the staff had worked. She said for instance that this student actually worked 52.25 hours in the fortnight, but she would process 40 hours through MYOB and the balance of the excess hours worked would later be paid separately at a rate of $10 per hour.
181.Ms Thedja said that there were several methods of later payment for hours worked in excess of the visa limit. At the beginning, the students were paid for the excess by cash, but later, they processed the payment during the school holidays as holiday pay. The payment would then show in MYOB as holiday pay. She said that the Accused had told her to record the information in this way.
182.Ms Thedja was shown an Excel spreadsheet in relation to Nyoto for the pay period, 1 March 2010. It shows that hours worked over the permitted 20 hour limit were to be deferred for payment in the holiday period. A related Excel record of the same date was tendered showing that only 40 hours worked were recorded in MYOB.
15. Agung Rianta
183.The revised materials from Exhibits P1 and P2 tendered by the Prosecution showed that the same methods of pay that were being used in relation to the other students where being used for Agung Rianta. For example, the pay record for the period 15 June 2008 stated that he had worked a total of 103 hours, with 80 `normal’ hours to be paid at the rate of $12.50 per hour and 23 hours `overtime’ to be paid at the rate of $10 per hour, with the balance less expenses including rent to be paid as cash in the amount of $399.
16. Mira Purnama Sari
184.The revised materials from Exhibits P1 and P2 tendered by the Prosecution show in relation to Mira Purnama Sari similar methods of pay that were being used in relation to the other students. For example, the record for the pay period ending 31 July 2009 states that she worked a total of 71.75 hours, but that the total hours recorded in MYOB was 40 hours, with the extra hours not yet paid to be paid in the holiday period at a lower rate of $10 per hour. Those records also show that the student was paid for the excess hours in cash by the Accused.
17. Michael Christopher Setiawan
185.Ms Thedja was shown an Excel spreadsheet relating to Michael Setiawan for the pay period 30 April 2010. She confirmed that it records that the pro rata permitted hours were recorded in MYOB with the excess payments to be deferred for payment in the holiday periods.
18.Christian Robi Siriman
186.The revised materials from Exhibits P1 and P2 tendered by the Prosecution show this student’s name appearing on a memo dated 15 April 2008 described by Ms Thedger as marked by a circle with a dot in it, to remind her that he was to be paid differently from the other staff, and that in that pay period he had worked 67 hours. A similar note appears for this student in a document entitled `notes’, dated 16-30 April 2008, and again under documents entitled `Time sheet summary Nando’s Warrigal’, dated 16-30 April 2008 and 1-15 May 2008.
187.Pay records for this student show similar methods of payment to conceal excess hours worked. For example, for the period 31 July 2009, the record shows his `normal’ hours as 40 hours, but his actual hours as 55 hours, with a note saying `extra hrs not yet paid and will be paid on next holiday.’ Another record for the period 31 May 2008 shows that he is to be paid at the rate of $20.10 for 30 hours in order to conceal that he had in fact worked 115.91 hours and received $12.50 for 80 of those hours, and $10 per hour for the balance of 35.91 hours. This record indicates that the balance will be paid to him in cash.
19. Florida Vonce Siriman
188.Ms Thedja was shown an Excel spreadsheet relating to Florida Vonce Siriman, for the pay period 31 August 2009. It records the total hours worked with deferred hours for payment in the holiday period. Another record tendered in the revised materials in Exhibits P1 and P2 shows that the cash balance is to be paid to the student by `cece’, the Accused.[68]
[68] See page 3054, revised materials from Exhibits P1 and P2.
20. Prima Yoga Sukmana
189.Revised materials in Exhibits P1 and P2 in relation to this student demonstrate that he was paid according to the cash method in order to conceal his excess hours. For example, the record for the pay period 15 February 2008 states that he is to be paid under the Multivic payroll for 40 hours in the amount of $12.06, with the balance for excess hours worked to be paid by cash.
21. William Handy Wiono
190.Ms Thedja was shown an Excel spreadsheet relating to William Handy Wiono. It shows that he was paid a casual rate of $19.28, which she said was a special rate that this student was paid. A related excel spreadsheet for this student records the extra hours that this student worked, and says that they are payable at a deferred date.
Email to the Accused
191.Ms Thedja was shown an email dated 21 August 2008 to the Accused (`Cece Anni) from Gunawan Hartanto, stating:
“Ce, this is the CM roster for next week.
Armyn, Karen and Fiona have minimum hours.
Nyoto has been given 36.5 hours, but that has resulted in Lenny and Mbak Feri dropping to 40 hours. Melanie will stay on 46 hours for the moment. Safura has 50 hours and 1 closing shift at Nandos, and it cannot be reduced because if it is, I am concerned that CM will not be well organised.
Cece, if you have anything to add, please email me, so I can make changes. Tomorrow I will email to the stores.
Thank you,
Gunn.”
192.She confirmed that `Cece’ was the Accused and the email address belonged to the Accused.
193.Ms Thedja said that after the search warrants were executed, these methods of recording the students’ working hours and payments stopped. She said she had been told to stop the payments by the Accused, who had said to her words to the effect of `We all know it’s wrong’ and she was instructed that they would no longer be allowing these people to work more than 20 hours. She said that the Accused, for the time that she had been working there, is the person who was responsible for the overall management of the Nandos and Chaddy Mart stores.
Evidence of Donna Rowe, the Informant
194.The Prosecution relies on a large volume of documents which were seized under search warrant from Multivic Pty Ltd and also the home of the Accused pursuant to an investigation by the DIAC that took place on 18 November 2010 with the assistance of Federal Police.
195.Ms Donna Rowe, the Informant, gave evidence, that after the search warrant was executed in relation to the records held at Multivic Pty Ltd and also at the home of the Accused, she consulted the integrated system environment and from those records, she was able to determine the conditions of the visa for each of the 21 students. She also made inquiries with the educational institutions attended by the students and tendered a document showing the semester periods for the Hales Institute from 2008-2010, seized from the Multivic Pty Ltd administration office (Attachment C).
196.Ms Rowe confirmed through her inquiries that each of the students were overseas students studying at the Hales Institute and that they held a subclass 572 or 573 visa, being the visa issued for international students. The visa conditions, which are referred to as 8101, 8104 and 8105 were tendered by the Informant. The Informant obtained copies of the students’ visa applications. Each of the student visas contained a condition that when their course of study was in session, they were not permitted to work more than 20 hours per week.
197.The Informant also made inquiries of the Australian Securities and Investments Commission database records to obtain company extracts in relation to searches of company names, and director and shareholder information, as well as details with respect to the principal place of business. The results of these searches were tendered and have been analysed above.
198.The Accused was interviewed by Ms Rowe, and a copy of the transcript of the recorded conversation was tendered.
199.The Defence argues that the seized materials were business records for the corporate entities but they were not the Accused’s business records. It is argued that while the documents might be relevant to, and admissible in a prosecution against the corporate entities, the Prosecution has to satisfy the Court that they are also relevant to and admissible in the prosecution against the Accused.
200.At the beginning of the hearing, by the agreement of Counsel for the Accused, the documents marked as exhibits P1 and P2 ‘Materials Seized Under Warrant’ and P3 `Specific exhibits for witnesses’, seized under the DIAC warrant, were provisionally tendered. Those documents were again tendered with the agreement of Counsel for the Defence, with a summary of the evidence relied on by the Prosecution and prepared by the Informant, in relation to each student, pursuant to section 50 of the Evidence Act 2008 (Vic) which provides as follows:
50 Proof of voluminous or complex documents
(1)The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
(2)The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has—
(a)served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and
(b)given each other party a reasonable opportunity to examine or copy the documents in question.
(3)The opinion rule does not apply to evidence adduced in accordance with a direction under this section.
201.The section 50 summaries prepared by the Prosecution are supported by the documents tendered as Exhibits in the hearing. The summaries for each student show their work history, stipulating: the pay period; the hours worked by the student; the exhibit number and page number; the visa condition of the student limiting their working hours and the institutional term periods and breaks.
202.I have checked these summaries against the supporting documents. Attachment A to these reasons sets out: the charge number; the name of the student; the dates of the offences; the relevant pay period; and the number of hours worked and the term duration. The vast majority of this evidence was not contested at the hearing. I find that the authenticity and provenance of the documents tendered in evidence and relied on by the Prosecution is demonstrated by the Prosecution for the reasons set out in paragraph 63, page 21 of the Prosecution submissions. Further, for the reasons given by the Prosecution as set out in paragraphs 54(d), 58 and 62 to 75 of its submissions, I find that the documents are admissible and relevant to this prosecution.
203.I also find, on the basis of the evidence given by the witnesses at the hearing and summarised above and the documents supporting the information summarised in the Attachment A in respect of each of the 111 charges:
a.that the named non-citizen students worked in excess of 20 hours per week while their courses were in session, and in doing so, they were in breach of their international student visa conditions;
b.that the named non-citizen students worked at the Nando’s and Chaddy Mart stores;
c.that the Nando’s and Chaddy Mart stores were operated by the Relevant Corporate Entities that employed the students, although it is not clear which corporate entity employed which student in each of the periods the subject of the charges.
Elements of section 245AC of the Migration Act
204.With respect to the principal charges under sections 245AC and 493 of the Migration Act, in relation to the Relevant Corporate Entities, I refer to the elements of the offence set out in paragraph 30 above and make the following findings:
Element 1 - persons were allowed to work or continued to work
a. The first physical element of the offence, that the body corporate allowed the non-citizens to work, or continue to work. Based on the above evidence, I find this element proven beyond reasonable doubt. It is not possible to say on the evidence before the Court precisely which entity employed which student, but I find that the Relevant Corporate Entities were the employers of each of the students who worked in the Nando’s and Chaddy Mart stores during the times the subject of these charges;
b. The fault element of intention in respect of this conduct on the part of the body corporate. The Prosecution asserts that the only possible inference that arises from the evidence is that the Accused engaged in the relevant conduct intentionally. Based on the above evidence, I find this fault element proven beyond reasonable doubt and I agree that the evidence unequivocally establishes that the Accused intentionally allowed the students to work and to continue to work and that her state of mind as director, servant or agent is to be imputed to the Relevant Corporate Entities, which employed the students;
Element 2 – the persons were non-citizens
a. The second physical element of the offence, that each person was a non-citizen. As stated above, this matter has been proven by the evidence of the Informant;
b. The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the element of recklessness on the part of the relevant body corporate is established by the evidence of the Accused’s state of mind as a director, servant or agent of the relevant body corporate when she engaged in the conduct, which is taken to be engaged in by the Relevant Corporate Entities. The Prosecution submits that the only possible inference that arises from the evidence is that the Accused as a director, servant or agent of the Relevant Corporate Entities was reckless as to the fact that the persons were non-citizens. I agree that, based on the above evidence, the Prosecution has established beyond reasonable doubt that the Accused was reckless as to the citizenship status of each of the students, and that her state of mind as director, servant or agent is to be imputed to the Relevant Corporate Entities who employed the students;
Element 3 - the non-citizens held visas with work restrictions
a. The third physical element of the offence is that the non-citizens held a student visa that contained a condition limiting the work that they could do to no more than 20 hours per week in any week during which their course of study was in session. This element of the offence was not disputed by the Defence. In any event, the evidence adduced by the Prosecution and referred to in detail above, establishes this fact beyond reasonable doubt;
b. The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the element of recklessness is established by the evidence of the Accused’s state of mind as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct, which is to be imputed to the Relevant Corporate Entities. On the basis of the evidence as summarised above, I find beyond reasonable doubt that the Accused as a director, servant or agent of the Relevant Corporate Entities was reckless as to the fact that the students held visas with a 20 hour per week work limitation while their courses were in session, and that this state of mind is to be imputed to the Relevant Corporate Entities that employed the students.
Element 4 - the students worked in breach of their visa conditions
a. The fourth physical element that the students worked in breach of their visa conditions. On the basis of the evidence as summarised above, I find this element proven beyond reasonable doubt;
b. The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of recklessness is established by the evidence of the Accused’s state of mind, as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct which is to be imputed to the Relevant Corporate Entities. The Prosecution alleges that the only possible inference that arises is that the Accused was reckless as to the fact that the students were working in breach of their visa conditions. I agree with the Prosecution, and I find on the basis of the evidence summarised above this element is proven beyond reasonable doubt.
Elements of section 11.2 of the Criminal Code
205.As stated above, for the Accused to be found guilty of an offence under section 11.2(1) of the Criminal Code, the Prosecution must prove beyond reasonable doubt that:
a. Through the deemed or imputed conduct or state of mind of the Accused as director, servant or agent, the body corporate committed the principal offence (refer to findings above);
b. The conduct of the Accused in fact aided, abetted, counselled or procured the commission of the principal offence (section 11.2(2)(a) of the Criminal Code);
c. That the offence was committed by the Relevant Corporate Entities (section 11.2(2)(b) of the Criminal Code) (refer to findings above); and
d. The Accused intended that her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) or an offence of that type, committed by the body corporate (section 11.2(3)(a)and (b) of the Criminal Code).
206.As stated above, section 5.2 of the Criminal Code provides that:
5.2 Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
207.There is an abundance of clear and compelling evidence in this Prosecution that the Accused in fact aided and abetted the Relevant Corporate Entities in the commission of the principal offences, and that she intentionally aided and abetted the commission of the principal offences by the Relevant Corporate Entities (elements (b) and (d) above). In addition to the evidence summarised in these reasons, the Prosecution has listed in paragraph 106 of its submissions an accurate summary of the evidence specifically supporting the allegation of aiding and abetting, namely that the Accused knew that the workers were non-citizens each of whom held visas prohibiting them from working more than 20 hours per week during the times when their courses were in session, and that they were breaching those conditions by working in the Nando’s and Chaddy Mart stores. The evidence listed by the Prosecution in paragraph 106, in addition to the summary of the evidence in these reasons, proves beyond reasonable doubt that the Accused in fact aided and abetted the Relevant Corporate Entities in the commission of the principal offences, and intended that her conduct would aid and abet the Relevant Corporate Entities in their commission of the principal offences.
208.The Defence’s submission that it was not the Accused who employed the students, and who had the overall responsibility for managing and running the business operations of the Relevant Corporate Entities who employed the student, but that it was Sophie Lim, the Regional Manager, is not sustainable in the light of multiple, clear accounts from the various witnesses. Those accounts are further supported by strong documentary evidence seized from the head office at Multivic and the Accused’s home, including emails that demonstrate that the Accused was issuing directions to her various staff with respect to all aspects of the business operations concerning the employment and payment of the non-citizen workers who were working in breach of their visa conditions.
209.For the above reasons, I find that the Accused has a case to answer and the no case submission of the Accused is dismissed. I find the 111 charges proven beyond reasonable doubt.
Magistrate MacCallum, 3 February 2015
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