Dpp v Pollock No. DCCRM-97-852 Judgment No. D3696 - [1998] SADC 3995

DPP v R G POLLOCK

Criminal

Judge Noblet

The accused originally pleaded not guilty to 9 counts of imposition on the Commonwealth. At the beginning of the second day of the trial, counsel for the accused (in the absence of the jury) asked for an intimation of the direction I proposed to give to the jury in my summing up on the elements of the offence. Counsel submitted that one element that the prosecution had to prove was that the accused acted dishonestly. I intimated that my direction to the jury would be that the elements of the offence of imposition on the Commonwealth are these:

(1)...... that in each case (bearing in mind that there are 9 separate counts) the accused made the representation alleged;

(2)...... that the representation was untrue;
(3)...... that the accused knew it was untrue;
(4)...... that the representation was made for the purpose of obtaining money.

I indicated that I did not believe that dishonesty, of itself, was an essential element of the offence of imposition on the Commonwealth. However, I went on to say that “it almost goes without saying that there is some dishonesty involved in those elements because the very fact that a person makes a representation that is untrue and knows it to be untrue and does so for the purpose of cheating or deceiving someone or obtaining some advantage involves dishonesty”. I relied particularly on the elements of the offence as stated by Owen J in Bacon v Salamane (1965) 112 CLR 85 at 92-93, the case of R v Lockett (1980) 24 SASR 54 and some of the reasoning in the recent case of R v Peters (1998) 151 ALR 51.

Counsel for the accused obtained further instructions and indicated that his client would change his plea to guilty on 8 of the 9 counts. He was re-arraigned in the presence of the jury and, following my direction, the jury returned verdicts of guilty on counts 1 to 4 and 6 to 9. The prosecution accepted those pleas in full satisfaction of the information.

Counsel for the defendant then indicated that there was a dispute on the facts which formed the basis for his client’s pleas of guilty and that evidence would have to be called to resolve this dispute. The pleas of guilty were on the basis of an admission of the essential elements of the offences but nothing more. In particular, the accused raised as a matter for mitigation a claim that he honestly believed the conduct which was involved in the offences to be common practice in the Commonwealth Government Department in which he worked and that this conduct was condoned by the Department. The prosecution was not prepared to accept the plea on that basis. Defence counsel identified 3 issues that needed to be resolved by calling evidence in order to determine whether the accused could properly rely upon the mitigating factor to which I have just referred. Before dealing with those issues,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] SADC 3995
Decision Date: 29 April 1998

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions (DPP) against R G Pollock, heard by Judge Noble in the Criminal Court. The accused originally pleaded not guilty to nine counts of imposition on the Commonwealth but changed his plea to guilty on eight counts after the court outlined the elements of the offence, excluding dishonesty as a requisite element. The accused claimed that his actions were based on an honest belief that such conduct was common and condoned within his department, a factor he sought to use for mitigation. The court had to determine if the accused genuinely believed his actions were honest and whether the prosecution could prove otherwise beyond reasonable doubt.

The central legal issues revolved around whether the accused's belief in the honesty of his actions constituted a valid mitigating factor and the standard of proof required to negate this belief. The court had to assess whether the accused's claims about the circumstances of his stays at various accommodations were truthful and if his actions indicated dishonesty. The court considered the testimonies of Mr Kappe, the hotel owner, and Ms Vanderwal, the Australian National Personnel Manager of AQIS, along with the accused's own testimony and that of Mr Smith, the owner of the house where the accused stayed.

The court found that the accused's claims were not credible. Evidence suggested that the accused had not paid the full allowance for his accommodations, had forged a hotel owner's signature, and falsely claimed to stay at non-existent motels. The court concluded that the accused acted dishonestly, knowing his actions were dishonest. The judge determined that the prosecution had satisfied the burden of proof beyond reasonable doubt that the accused did not act honestly, thus negating the mitigating factor he sought to rely on.

The court proceeded to determine an appropriate sentence for the accused, having established that he acted dishonestly and knew it. The final orders of the court would detail the sentence to be imposed on the accused, taking into account the nature of the offences and the findings of the court.

Orders