Director of Public Prosecutions (Cth) v Poniatowska

The High Court of Australia considered an appeal by the Director of Public Prosecutions (Cth) against a decision of the Full Court of the Supreme Court of South Australia concerning charges brought against the respondent, Ms Poniatowska. The respondent had been convicted of multiple offences under section 135.2(1) of the *Criminal Code* (Cth) for obtaining financial advantage from a Commonwealth entity. The core of the dispute was whether the respondent's failure to advise Centrelink of commission payments she received, while in receipt of social security payments, constituted the physical element of the offence, particularly given she was not under a legal obligation to provide such advice.

The legal issues before the High Court were whether an omission to perform an act, where there is no pre-existing legal obligation to perform that act, could satisfy the physical element of an offence created by section 135.2(1) of the *Criminal Code*. Furthermore, the Court was required to determine whether section 4.3 of the *Criminal Code*, which outlines the physical elements of an offence, gave expression to the common law principle that criminal liability for an omission only arises when there is a failure to perform a legally required act.

The High Court, in a majority decision, found that the Full Court of the Supreme Court of South Australia had erred in its interpretation. The Court reasoned that section 135.2(1) of the *Criminal Code*, when read in conjunction with the definition of "engages in conduct" in section 4.1(2), requires a positive act or omission that causes a result. Crucially, the Court held that criminal liability for an omission under the *Criminal Code* does not attach unless there is a legal obligation to perform the omitted act. The Court noted that the legislative intent behind the codification of criminal law, as expressed by the Minister at the time, was to promote certainty. However, the Court observed that many parts of the *Criminal Code*, including those relevant to this appeal, were inconsistent with these ideals.

The High Court granted special leave to appeal but dismissed the appeal, ordering the respondent to pay costs.