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, I need to say a little more about the offences and the circumstances in which they were committed.

At all relevant times, the accused was employed by The Australian Quarantine Inspection Service (AQIS) in Adelaide. In August 1994, he was temporarily transferred to Broken Hill to carry out meat inspection work in that city, but he maintained his residence at Mount Barker. While he was at Broken Hill he became entitled to additional allowances for accommodation and meals. From time to time he was required to complete a form so that the appropriate allowances could be calculated. In relation to counts 1-4 inclusive, the admitted untrue representation was that he had paid $385 per week for his accommodation at the West Darling Motor Hotel in Broken Hill. In fact, for the period covered by these forms, he had paid only $275 per week. In relation to count 6, the false misrepresentation was that he was continuing to reside at the same motel, whereas he had in fact left that motel 11 days earlier and obtained other accommodation elsewhere. In relation to count 7, the false representation was again that he was staying at the West Darling Motor Hotel, which was untrue. In addition, he forged on this form the signature of the owner of that motel. In relation to counts 8 and 9, the false representation was that he was staying at the Morish Heights Motel in Broken Hill. No such place existed. He was in fact renting a room and some facilities at a private house, which would have attracted a considerably lower allowance than that paid for staying at a motel.

The accused said that he believed his daily accommodation allowance while at Broken Hill to be $55. When he was claiming $385 but spending only $275, he was claiming $55 per day for 7 days, whereas most of the time he was returning home to Mount Barker on weekends and only staying 5 days per week at Broken Hill. He thought he was entitled to claim the extra 2 days to provide him with the funds to travel home in his own car, on which trips he paid for the petrol.

He had no real explanation as to why he claimed to be residing at the West Darling Motor Hotel when he was not in fact residing there, except that he said he was under considerable stress at the time. As far as the claim regarding the “Morish Heights Motel” was concerned, he saw nothing wrong with that because he claimed to be paying to the owner of the house in which he was in fact living the whole of the $385 per week that he was claiming from his employer.

It seems that different views have been expressed in different States of Australia as to the onus of proof and standard of proof in a disputed facts hearing. However, it seems clear that in South Australia, when the accused raises issues upon which he seeks to rely in mitigation of sentence, the onus is on the prosecution to negative these issues beyond reasonable doubt. (See Law v Deed [1970] SASR 374 per Bray CJ at 379, approved by the High Court in Anderson v R (1993) 177 CLR 520 at 536; cf Storey (1997) 89 ACrimR 519 (Victoria). For the purposes of the matter now before me, I approach the dispute on the facts on the basis that the onus is on the prosecution to negative beyond reasonable doubt the issues raised by the accused.

The prosecution relied upon the evidence given on the first day of the trial by Mr Kappe, the owner of the West Darling Motor Hotel, and Ms Vanderwal, the Australian National Personnel Manager of AQIS. The accused gave evidence at the Disputed Facts hearing and also called Mr Smith, the owner of the house in which the accused was renting a room and some other facilities during part of his time in Broken Hill.

I return now to the three issues that counsel for the accused considers must be resolved in order to determine whether the accused could properly rely upon a claim regarding his honest belief.

The first issue is whether or not the documents headed “Certificate of Person Providing Board and Lodging or Accommodation”, which Mr Kappe signed as owner of the West Darling Motor Hotel included on it at the time of signing the information regarding the period of stay, the facilities provided and the amount paid. The accused says that this information was included on the certificate as presented to Mr Kappe for signature; Mr Kappe says that he always signed the forms in blank. I assume that the relevance of this issue to the matter of mitigation on which the accused seeks to rely is that on the accused’s version of the facts he was not attempting to hide anything, which may support an inference that he thought he was acting honestly.

Mr Kappe seems to me to be a person who was not terribly particular about signing forms that he well may have considered to be bureaucratic red tape. He probably had to sign many of these forms for Commonwealth employees temporarily stationed at Broken Hill. I doubt that he paid very much attention to what was on them. Despite Mr Kappe’s evidence that he was “quite certain” that he signed all the forms in blank I think it is quite possible that the certificates, or at least some of them, were completed by the accused before being presented to Mr Kappe for signature.

The second issue is whether the accused in fact paid to Mr Smith, in respect of the bedroom and facilities provided by him, the whole of the $385 allowance that the accused was receiving from his employer. Mr Smith gave evidence that the accused told him his allowance was $55 per night and that he therefore agreed to charge him $385 per week. He identified receipts signed by him indicating that this amount was paid to him on at least some occasions. The only facilities that he provided to the accused were a bedroom with a double bed, linen and bedding, fresh towels daily, access to the laundry, access to a television and video recorder in the loungeroom and a refrigerator in the kitchen. He claimed that he vacuumed the bedroom daily and washed the towels daily. He conceded that the rent he was paying for the 3 bedroom home, having regard to the subsidy provided by his employer, was about $58 per week for the period 13 February 1995 to 13 August 1995 and about $116 per week from August 1995 until January 1997.

I do not believe that the arrangement between the accused and Mr Smith was as described in their evidence. I believe that some arrangement was made between the two of them for payment of something less than $385 by way of board and for documents to be prepared to make it look like the amount paid was $385 per week. In coming to this conclusion I have had regard to the fact that Mr  Smith was prepared to sign certificates which described his rented house as the “Morish Heights Motel”. The most likely explanation for that is that Mr Smith was well aware that the accused’s claims for reimbursement of accommodation expenses were false. The evidence given by Ms VanderWal was that if the accused had correctly disclosed on his form that he was renting a room in private accommodation, his weekly accommodation allowance would have been $145, not $385. I am convinced that the accused would have known that. His knowledge of that fact is the most likely explanation for him making the false representation that the place at which he was staying was a motel. Furthermore, I find it almost impossible to accept that the accused would pay $385 per week for very limited accommodation in a house rented by the occupier for only $58 per week (or later $116 per week).

The third issue is the question of what facilities were supplied by Mr Smith and, in particular, whether they included cooking facilities. I am satisfied that the facilities were, in general terms, as described by Mr Smith, although I have grave doubts as to whether he would have provided fresh towels every day. The significance of the facilities is that if they included access to cooking facilities, no meal allowance would have been payable. I am satisfied that cooking facilities were not included and that there was nothing wrong with the accused claiming the meal allowance while he was staying with Mr Smith.

The question really is whether, having regard to these findings and some others to which I shall refer in a moment, the prosecution has satisfied me beyond reasonable doubt that the accused did not believe he was acting honestly. I am satisfied that the arrangement that the accused had with Mr Kappe at the West Darling Motor Hotel did include evening meals. Mr Kappe was adamant that this was the case and that the tariff would have been $138 instead of $275 if dinners had not been included. I believe his evidence in this respect. I therefore find that the accused dishonestly indicated that the accommodation at the West Darling Motor Hotel comprised “bed only”. It may well be that the accused was aware of other employees claiming accommodation for seven days instead of five in order to fund trips home on weekends. That does not make it honest. The evidence of Ms Vanderwal was that employees on temporary transfer could return home on weekends as long as (apart from some special concessions) this was at no cost to the Department. In fact it was costing the Department $115 each time the accused came home. But putting that to one side, I can find no explanation consistent with honesty for the accused pretending to stay at the West Darling Motor Hotel when he was in fact staying somewhere else, forging the signature of Mr Kappe on one of the forms and falsely claiming that after he left the West Darling Motor Hotel he stayed at the “Morish Heights Motel”.

Having regard to all these matters, the prosecution has satisfied me beyond reasonable doubt that the accused was acting dishonestly and knew he was acting dishonestly. I therefore propose to sentence him on that basis. I will now hear submissions as to the appropriate sentence to be imposed.