Elford v Tonna; Benn v Tonna
[2014] ACTSC 266
•20 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Elford v Tonna; Benn v Tonna |
Citation: | [2014] ACTSC 266 |
Hearing Date: | 1 May 2014 |
DecisionDate: | 20 October 2014 |
Before: | Burns J |
Decision: | See [49] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – False and Misleading Statements – whether appellant made a false or misleading statement to the Australian Capital Territory in a document that was made in relation to an application for a statutory benefit – whether appellant knowingly made a false statement in a statutory declaration APPEAL – Appeals from and control over Magistrates – whether the Magistrate’s findings of fact were infected by error and could not be sustained – appeal upheld |
Legislation Cited: | Criminal Code 2002 (ACT) ss 336A, 337 Legislation Act 2001 (ACT) ss 13, 14, 169 (2) |
Cases Cited: | Le v Shute [2000] ACTSC 56 |
Parties: | Breanna Lea Elford (Applicant, SCA 87 of 2013) Justin Benn (Applicant, SCA 88 of 2013) Joseph Tonna (Respondent, SCA 87 of 2013; SCA 88 of 2013) |
Representation: | Counsel Mr T Sharman (Appellants) Mr M Fernandez (Respondent) |
| Solicitors Tim Sharman, Solicitor (Appellants) ACT Director of Public Prosecutions (Respondent) | |
File Number: Decision under appeal: | SCA 87 of 2013; SCA 88 of 2013 Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 4 October 2014 Case Title: Joseph Tonna v Breanna Lea Elford; Joseph Tonna v Justin Benn Court File Numbers: CC12/40757; CC12/40758 |
Burns J:
The appellant Breanna Elford appeals from convictions imposed by a Magistrate on 4 October 2013 with respect to the following charges:
(a)That contrary to s 337 of the Criminal Code 2002 (ACT) (the Criminal Code) on or about 2 April 2011 she knowingly made a false or misleading statement to the Australian Capital Territory in a document that was made in relation to an application for a statutory benefit; and
(b)That contrary to s 336A of the Criminal Code on about 18 February 2012 she knowingly made a false statement in a statutory declaration.
The appellant Justin Benn appeals from a conviction imposed by the same Magistrate on 4 October 2013 with respect to the following charge:
(a)That contrary to s 336A of the Criminal Code on about 5 March 2012 he knowingly made a false statement in a statutory declaration.
The hearing of the charges against the appellants in the ACT Magistrates Court proceeded as a joint hearing. Each of the appellants now appeals against conviction only. Each of the notices of appeal specify one ground of appeal only, being that the Magistrate made erroneous findings of fact. The powers of this court in such an appeal are set out in s 218 of the Magistrates Court Act1930 (ACT):
Orders by Supreme Court on appeals
(1)On an appeal to which this division applies, the Supreme Court may –
(a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
(2)A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court andy may be enforced by the Magistrates Court accordingly.
Background
The charges against the appellants arose from their participation in an ACT Government initiative known as the Home Buyer Concession Scheme (HBCS). The HBCS was designed to assist people with purchasing a residential home or residential vacant land by charging stamp duty at a concessional rate. The scheme was available on application and applicants had to meet certain criteria to be eligible for the duty concession. One of the criteria was an income test. Applicants were required to disclose if they had a domestic partner, and if so, to provide particulars of that person and their income on the HBCS application form. The information provided was used to determine the applicant’s eligibility for the HBCS. The application form included a guide and checklist to assist applicants.
The appellants first met on or about 19 March 2010, and became engaged around September 2010. At that time Ms Elford moved into a house with Mr Benn in Giralang in the ACT. They subsequently took up residence at 5/14 Flora Place, Palmerston in the ACT which was leased in both their names. The appellants participated in an ACT Government program, called the “Own Place” ballot for the right to choose a block in a new development in the Canberra suburb of Bonner. Mr Benn was at that time employed in the ACT Government, and had to seek special permission to participate in the ballot. They were successful in the ballot, and chose to purchase a vacant block of land in Bonner. On 15 February 2011 the appellants entered into a Contract for Sale with respect to vacant land at Block 4, Section 105 in the Division of Bonner. On the same day they entered into a building contract with SM Precision Building Services Pty Ltd for the construction of a dwelling house on the land. The Contract for Sale specified the appellants as joint tenants. The building contract specified each of the appellants as “owners”.
On 10 March 2011 the appellants instructed their solicitors Meyer Vandenberg (MV) by email to remove Mr Benn’s name from “the contracts” so as “to take advantage of the first home owner assistance”. On 31 March 2011 Ms Elford and Mr Benn signed a Deed of Rescission to rescind the Contract for Sale of 15 February 2011, and on the same day Ms Elford signed another contract for the same property in her name only.
It was accepted, as I understand it, that the income threshold for the HBCS was $120,000.00 a year, and that Ms Elford’s income combined with that of Mr Benn exceeded that annual threshold, although Ms Elford’s personal income did not.
On or about 2 April 2011 Ms Elford completed a HBCS application form in her name only in which she described her marital status as single, and left blank that portion of the form calling for her to nominate her domestic partner. Ms Elford signed a declaration at the tail of the form declaring that “all of the information in this application, and in any supporting documentation, is true and correct and that to the best of my knowledge, no information relevant to the consideration of my application has been omitted”.
On 5 May 2011 Ms Elford completed a Personal Membership Application with the Community CPS Credit Union, in which she nominated Mr Benn as a joint member, and provided a membership number, presumably of Mr Benn. As I understand it, this effectively created a joint account for the appellants in the Credit Union. On 9 May 2011 Mr Benn sent an email to MV:
Following settlement, we will need to add my name back to the land title, through the land titles office. We will need to lodge a stamp duty deferal (sic) application to avoid paying full stamp duty. I have previously owned land but sold it in 2007 and got divorced. Breanna and i (sic) should still be eligible to receive a stamp duty reduction however i (sic) am aware that we will miss the 7000 homeowner grant.
Have we had a response from revenue regarding the Application for stamp duty in just Breanna’s name?
While this email is expressed to be from both Ms Elford and Mr Benn, it is clear that it was in fact written and sent by Mr Benn. Not only do the contents establish this, it is also strongly suggested by the fact that Ms Elford was sent a circulation copy of the email.
The HBCS application form completed by Ms Elford on 2 April 2011 was apparently not lodged by MV until 10 May 2011, together with copies of her last tax return and pay slips covering a two month period. On 25 May 2011 the ACT Revenue Office granted the duty concession of $2,400.00 to Ms Elford based on the information declared in and supplied with her application form.
Settlement of the property apparently took place on around 25 July 2011. On or around that date, Ms Elford transferred her interest in the property to herself and Mr Benn as joint tenants, the consideration being “love and affection”.
On 15 February 2012 a delegate of the Commissioner for ACT Revenue forwarded a letter to Ms Elford, expressed to be a notice pursuant to s 82 of the Taxation Administration Act1999 (ACT), requiring Ms Elford to complete and return a statutory declaration advising whether she was in a domestic partnership with Mr Benn at the time of her application for HBCS, and, if so, explaining why she did not advise the ACT Revenue Office of that fact when completing her HBCS application form. The notice required Ms Elford to also supply information surrounding property previously owned by Mr Benn, and, in the event that Ms Elford declared that she had been in a domestic relationship with Mr Elford at the time of her application, further information about Mr Benn’s income.
The notice referred Ms Elford to s 169 (2) of the Legislation Act2001 (ACT) which provides:
References to domestic partner and domestic partnership
(1)In an Act or statutory instrument, a reference to a person’s “domestic partner” is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse, civil union partner or civil partner of the person.
(2)In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.
Example – indicators to decide whether 2 people are in a domestic partnership
1The length of their relationship
2Whether they are living together
3If they are living together – how long and under what circumstances they have lived together
4Whether there is a sexual relationship between them
5 Their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them
6The ownership, use an acquisition of their property, including any property that they own individually
7Their degree of mutual commitment to a shared life
8Whether they mutually care for and support children
9The performance of household duties
10The reputation, and public aspects, of the relationship between them
The HBCS application form was a statutory instrument: see s 13 and s 14 Legislation Act 2001 (ACT).
In response to this notice Ms Elford on or about 18 February 2012 provided a document headed “Statutory Declaration” containing the following statement (as per the original):
1. Justin Isaac Benn and I, Breanna Lea Elford were not in a domestic partnership at the time of completing my home buyer concession application on the 02.04.2011. I Breanna Lea Elford had resumed a domestic partnership in around June – July 2011, as a result of this Justin Isaac Benn was added to my house and land contract and an additional application to stamp duty was lodged to the ACT Revenue Office on the 26.08.2011 an amount was paid to the Revenue Office as a result (sic).
2. Justin Isaac Benn owned residential property, jointly in 2004 – 2006 with Tracey Elliott. This residential property was 5 Henslow Place in Melba, in the ACT.
On or about 29 February 2012 Mr Benn was also served with a notice under s 82 of the Taxation Administration Act1999 (ACT) requiring him to complete a statutory declaration advising whether he was in a domestic partnership with Ms Elford “at the time of her application on 2 April 2011”. In response to this notice Mr Benn provided a document headed “Statutory Declaration” containing the following statement:
1. I was not in a domestic partnership with Breanna Lee Elford on 2 April 2011.
2. I was not in a domestic partnership with Breanna Lea Elford between the end of March 2011 to the end of June 2011.
As I will later explain, there is some doubt as to whether the prosecution proved that these documents were statutory declarations, but for convenience in these reasons I will refer to them as such.
The prosecution in the proceedings in the Magistrates Court relied upon a number of circumstances to suggest that the appellants were in a domestic relationship throughout March, April, May, June and July 2011. First, there was evidence that Miss Elford and Mr Benn made contributions into their joint credit union account during this period. Secondly, there was evidence that Mr Benn transferred funds into Ms Elford’s Commonwealth Bank account on a number of occasions between March and July 2011. Thirdly, the prosecution relied upon the pattern of communications between Ms Elford and Mr Benn as revealed by mobile phone records. Finally, motor vehicle registration data obtained from the ACT database recorded Ms Elford and Mr Benn as residing at 5/14 Flora Place Palmerston ACT during the relevant period, and did not show any change of address for either of the appellants during that time.
The case for the prosecution in the Magistrates Court consisted entirely of documents, which were tendered by consent. The appellants both gave evidence. Ms Elford testified that she met Mr Benn in March 2010, and that they became engaged around September 2010. They commenced living together at around that time in premises at Giralang. They remained there for a couple of months, before moving to 5/14 Flora Place Palmerston. Those premises were owned by the parents of Tim Lam, a friend of Ms Elford. It was while they were residing at these premises in 2010 that they participated in a ballot for a block of land. They were successful, and started the process to obtain finance for the purchase and to construct a house on the block. She testified that by the beginning of March 2011 she and Mr Benn had been having difficulties in their relationship for a while, and she told him that she didn’t want to be with him anymore. Neither of them moved out of the house in Palmerston, but they occupied separate bedrooms and living areas. They both paid their own rent and electricity, and bought their own food and other things. Ms Elford testified that she decided to go through with the purchase of the land in her own name. To that end, new contracts were drawn up for the sale. She testified that she and Mr Benn got back together in May 2011. She said she was able to specify the approximate time when this occurred because their records showed that they’d opened bank accounts in May 2011. Presumably, this was a reference to the joint Credit Union account referred to above. Ms Elford became pregnant around June or July 2011, and she and Mr Benn were married in November 2011.
In examination-in-chief Ms Elford was taken to her statutory declaration and was asked whether there was anything in it that was not correct. She responded that at the time that she made it she thought that it was 100% correct, but she now realised that the date she specified for the recommencement of their domestic relationship, being June or July 2011, was incorrect. She said that the correct month was May.
In cross-examination Ms Elford agreed that she and Mr Benn had participated in the land ballot in November 2010. She denied suggestions that at that time her and Mr Benn’s finances were “pretty much joint finances”, testifying that she maintained her own account with the Commonwealth Bank. She agreed that she and Mr Benn made an initial application for finance to the credit union, but this was refused. She then made a further application in her own name when she and Mr Benn were estranged. She was asked whether she didn’t want to have anything to do with Mr Benn as at early March 2011 and she responded:
I didn’t want to be that committed to him, no, but I couldn’t just walk away. I’d had a pretty bad past with partners in and out of jail because of domestic violence and things… And you know, I didn’t want to be that committed.
Ms Elford testified that both she and Mr Benn remained in the house at Palmerston after their breakup because neither had anywhere else to go. She said that she did not ask Mr Benn to leave because “we both gotten into the rental place together, so it was pretty unfair of me to just be like “I don’t want to be with you any more, go away”.” She said that she told Mr Benn that she did not want to be in a relationship with him shortly after his birthday on 1 March 2011, and then moved into a different room in the house. She said that they had different lounge rooms and bathrooms as well. They did not share meals, and she assumed that he cooked for himself.
Ms Elford denied discussing her HBCS application with Mr Benn, and also denied discussing with him how she should answer the questions on the application. She said that she completed the form and indicated that she was single, because at that time it was true. She denied the proposition that she and Mr Benn had conspired to put the application through in her name as a single person in order to obtain reduced stamp duty, when in fact they were living as a couple in a domestic relationship. Ms Elford testified that their relationship resumed in early May 2011, at which point they notified MV and instructed them to add Mr Benn’s name onto the title of the property after settlement. She agreed that from 10 May 2011 she and Mr Benn operated a joint account at the Credit Union, and each deposited funds into it. She said that after their relationship broke up, she became sad and depressed without Mr Benn. They spoke to each other when they saw each other during this period of estrangement, but also communicated by telephone, both orally, and by text messages. Ms Elford agreed in cross-examination that Mr Benn paid $5000.00 into her Commonwealth Bank account on 21 March 2011, saying “That was for the car”.
Mr Benn gave evidence essentially corroborating that given by Ms Elford. He testified that he had not moved out of the house at Palmerston because his name was on the lease and he didn’t have anywhere else to go. He said that Ms Elford had initiated the breakup, and at the time he thought that it was final, but he still had hopes that someday they may get back together. He said that after they broke up they discussed what to do about the Bonner property and it was decided that Ms Elford would continue with the purchase on her own. Mr Benn said that he then assisted her in her dealings with the solicitors. He testified that it cost $440.00 to remove his name from the Contract of Sale, a sum that had to be paid to the Land Development Agency. When asked what he did about the purchase when he and Ms Elford resumed their relationship in early May 2011, he said:
Well, we needed to – I spoke to the Land Development Agency because they were the seller and we needed to get my name back on the contract because we were back together. That couldn’t happen until after settlement because the seller wouldn’t allow it. We made another application to the CPS Credit Union together to proceed with the purchase.
Subsequently, after settlement of the property, Ms Elford transferred the whole of her interest in the property to herself and to Mr Benn as joint tenants. There was no evidence to contradict Mr Benn’s evidence that the reason why his name was not added to the purchase documents before settlement on the Bonner property was because the vender would not allow it.
In examination in chief, Mr Benn was taken to his statutory declaration. He testified that the dates given in the second paragraph of that document were incorrect, although he believed them to be correct at the time he completed the document. Mr Benn’s evidence was that he and Ms Elford broke up in early March 2011, and did not recommence their relationship until early May 2011.
In cross-examination Mr Benn was questioned about the living arrangements in the Palmerston house after his relationship with Ms Elford broke down. Mr Benn said that they continued to live in the house, but at separate ends of the house with separate entries, separate living areas and separate toilets. He said that he and Ms Elford would speak to each other from time to time “like, other share house people would”. He said that they also communicated by phone and text message. He testified that after the breakup he did look for alternative accommodation, but his name was still on the lease at Palmerston. He said “well, I still had my name on the lease and I was responsible for that property. I found the property. I wanted to stay there. I didn’t initiate the breakup. I didn’t think I needed to move out.” He said that Ms Elford “literally had nowhere to go”.
The bank records tendered by the prosecution in the Magistrates Court revealed two payments by Mr Benn into Ms Elford’s Commonwealth Bank account in the period from the beginning of March to the beginning of May 2011. Mr Benn was only questioned by the prosecutor about the first of those payments, in the amount of $5000.00 Mr Benn said that he owed her that money for a car she had bought for him.
Mr Benn testified that he only became aware that MV lodged Ms Elford’s HBCS application on 10 May 2011 after the event. He said that on 9 May 2011 when he contacted MV to advise that his name was to go back on the property after settlement, he enquired as to the progress of Ms Elford’s application. He testified that MV did not respond to that enquiry.
Mr Benn was cross-examined as to how he came to make the mistake in his statutory declaration concerning the date he and Ms Elford came to renew their relationship. He explained that at the time that he and Ms Elford received their respective notices under s 82 of the Taxation Administration Act1999 (ACT), they were focused on the birth of their daughter, who was born prematurely on 23 February 2012. Their daughter had a number of significant health issues which made that time very stressful for them. He and Ms Elford tried to work out when their relationship was renewed, and thought it may have been around the time that she became pregnant. This was the basis of the information that they provided in their statutory declarations. Mr Benn denied participating in any sort of arrangement designed to mislead the ACT Revenue Office about his and Ms Elford’s relationship.
On behalf of the appellants Mr Tim Lam gave evidence before the Magistrate. He testified that he knew both of the appellants, having worked with Ms Elford in 2008 and having met Mr Benn when he started dating Ms Elford in 2010. He said that he and his partner became good friends with Ms Elford and Mr Benn, and that they would often see each other. He helped to arrange their lease of his parent’s rental property in Palmerston. In January 2011 Mr Lam and his partner moved to Malua Bay on the south coast of New South Wales, but he maintained contact with Ms Elford and Mr Benn. When asked whether he became aware of a change in the relationship between Ms Elford and Mr Benn just after Mr Benn’s birthday in March 2011, he said:
Yes, I – I know that they had a lot of issues. They were having a lot of issues. I spoke – I spoke to Breanna quite – quite often about that and I know that they were going through a hard time…. She informed me that they broke up not long after their – Justin’s birthday.
Mr Lam testified that Ms Elford came to see him at Malua Bay during the Easter break in 2011 and “she informed me that yes, they were no longer together, but they were still living at my parents’ house together”. When asked whether he became aware later that they had resumed their relationship, he said: “Yes, I did. It was – it would have been about – yes, it would have been a few months afterwards, so yes, probably roughly about May I guess”. Mr Lam subsequently attended the appellants’ wedding in November 2011, and remained good friends with them at the date of the proceedings in the Magistrates Court.
The Magistrate’s decision
After setting out some aspects of the evidence given by Ms Elford and Mr Benn, some of which I will return to shortly, the Magistrate concluded:
Consideration. I found Mr Benn and Ms Elford’s evidence lacking in credibility. An assessment of all of the available evidence leads me to the conclusion that Ms Elford and Mr Benn colluded when making their statutory declarations and in evidence before the court to represent that they were not in a domestic relationship at the time Ms Elford made an application for the Home Buyer Concession on 2 April 2011. There were some obvious indicators of an ongoing relationship: the pair were still living together, Mr Benn put money in Ms Elford’s bank account in the period in which they were said to be separated and whilst one deposit was said to be the repayment of a loan the other was not explained. The telephone communication between the two of them was far greater than one could imagine would take place between two people not in a relationship, but these matters alone would merely raise strong suspicion as to an ongoing relationship.
I am moved beyond suspicion, however, by consideration of the chronology of this matter and the communications between both defendants and their solicitors in respect to arrangements the purchase of land in Bonner. The emails of 10 March and 9 May 2011 evidence an ongoing relationship and a plan to maximise their financial position. The defendants’ evidence appears to have been framed retrospectively to fit the independent evidence. For example, it was not until the hearing of this matter that both defendants gave evidence that, in fact, the relationship resumed on 4 or 5 May 2011, coincidentally either the day before or the day that the pair of them applied for a joint bank account.
The defendants’ explanations as to the fact that they were unable to recollect the date of the resumption of their relationship are particularly incredible. I find that there was an ongoing domestic relationship as that 2 April 2011 between both defendants. I am satisfied beyond reasonable doubt that Ms Elford intended to mislead when she made what I have found to be a false statement in her application for the Home Buyers Concession on to April 2011 to the effect that she was single and, by omission, that she had no domestic partner. I therefore find (the charge contrary to s 337 of the Criminal Code) proved.
I am further satisfied beyond reasonable doubt that Ms Elford knowingly made a false statement in her statutory declaration dated 18 February 2012 to the effect that she was not in a domestic partnership with Justin Benn as at 2 April 2011. I am equally satisfied in relation to the statement as to the date of the resumption of the relationship that it was knowingly false. I therefore find (the charge contrary to s 336A of the Criminal Code) proved. Am satisfied (sic) beyond reasonable doubt that Mr Benn knowingly made a false statement in his statutory declaration dated 5 March 2012 to the effect that he was not in a domestic partnership with Breanna Lea Elford on 2 April 2011. I am again equally satisfied in respect of the statement as to the date of resumption of a relationship that it was knowingly false. I therefore find (the charge contrary to s 336A of the Criminal Code) proved.
Appellants’ submissions on appeal
The appellants contended that the Magistrate’s findings of fact were infected by error and could not be sustained. The appellants complained about the following extracts from the reasons delivered by the Magistrate:
(a)The Magistrate made the following statements about the evidence of Ms Elford and Mr Benn concerning the breakup of their relationship:
He said that it was an unequivocal statement that they were finished. She said that the impetus for the separation was her concern about the commitment in purchasing land. (Transcript page 87, line 35)
Given that Ms Elford indicated the impetus to the separation was her concern about committing to land ownership it seems implausible that immediately following the breakup she would have begun discussing purchase of the land on her own and, further, seeking Mr Benn’s assistance to effect this. (Transcript page 88, line 5)
The appellants complained that this finding is not supported by the evidence. It is submitted that Ms Elford’s evidence was not to the effect that the impetus for the separation was her commitment to land ownership.
(b)Concerning the number of telephone communications between the appellants during the period of March to May 2011, the Magistrate said:
The number of exchanges evident in the telephone call records produced in this hearing are such that it is implausible that they were mere perfunctory exchange(s) of housekeeping requirements. (Transcript page 89, line 5)
The appellants acknowledged the phone records reflected calls and text messages exchanged on the basis that they maintained communication, amicable or otherwise, during the period of separation. They submit that it is difficult to see the basis for the finding made by the Magistrate or any criticism of them based upon this pattern of communication.
(c)Concerning payments by Mr Benn into Ms Elford’s Commonwealth Bank account in the period March to May 2011, the Magistrate said:
Ms Elford was questioned about a deposit of $5,000 made by Mr Benn into her Commonwealth Bank account on 21 March 2011 during the time that they were broken up. She said that this was repayment of a loan that she had made for a car which Mr Benn confirmed in evidence. I note, however, that there was a further direct credit from Mr Benn’s account to Ms Elford’s account on 1 April 2011 for $1,300, as to which no explanation was forthcoming. (Transcript page 89, lines 10 – 15)
The appellants submit that Ms Elford did mention the second deposit in her evidence, but the prosecution only cross-examined her about the first deposit. To criticise Ms Elford on the basis that she gave no explanation for the second deposit is to inappropriately place an onus on her.
(d)With respect to the evidence given by Mr Lam, the Magistrate said:
Mr Lam, a close friend of Ms Elford’s stated that she and he had spoken about her relationship issues on Mr Benn’s birthday. She visited Mr Lam on the way home from holidays with her family at Easter 2011 – I interpolate that Easter Monday was 25 April 2011 – at which point she apparently told Mr Lam that they have separated. He later heard that the relationship had resumed and subsequently attended their wedding in November 2011. His knowledge of the relationship status in March and April 2011 was based solely on what he was told by Ms Elford. (Transcript page 90, line 5)
The appellants submit that Mr Lam’s knowledge of their relationship was based upon what Ms Elford told him at the time, being in the period between March and May 2011. They submit that his evidence was corroborative of the evidence given by them on the central issue in this case, being whether they were living in a domestic relationship at that time. They further submit that the evidence was not challenged in cross-examination.
(e)Regarding the statement made by the appellants in the documents headed “Statutory Declaration” about the date they recommenced their relationship, the Magistrate said:
On 15 February 2012 Ms Elford received a letter from the ACT Taxation Office and Mr Benn received a similar letter on 29 February 2012. These letters told the defendants that an investigation had been carried out in relation to Ms Elford’s Home Buyer Concession application. The letters include a warning in bold that, “Giving false or misleading information is a serious offence”. Both defendants stated that they conferred as to dates during which they were broken up. They used those dates in their statutory declarations.
Ms Elford said in evidence that on looking back at the date she now knew it to be incorrect, based on the timing of her pregnancy. She would, of course, have been acutely aware of the details of her pregnancy in February 2012, having just delivered the baby. Ms Elford knew the serious nature of the request for the statutory declaration. She had taken the trouble to call Ms Black, a senior inspection officer with ACT Revenue, after receiving the request.
Mr Benn gave evidence that there was a record of events which she could have checked quickly. He did say that he was on stress leave at the time, and that both of them were very concerned about their newborn daughter who was apparently unwell. Mr Benn was an employee of the ACT Government Land and Planning Agency at Senior Officer Grade C level, and must have had at least some notion of the significance of the request from the government for a statutory declaration in relation to an investigation. He had shown some recognition of the need to be sensitive to legal requirements in getting approval to even bid for the Own Place ballot in 2010. It seems incredible that the defendants, in particular Mr Benn, would then adopt such a careless attitude to the completion of these documents, if carelessness it were. (Transcript page 90)
I found it difficult to understand the appellants’ submission on this extract, but as best I can understand it they submitted it was unfair.
(f)In concluding that the appellants were guilty of the offences, the Magistrate said:
Consideration. I found Mr Benn and Ms Elford’s evidence lacking in credibility. An assessment of all of the available evidence leads me to the conclusion that Ms Elford and Mr Benn colluded when making their statutory declarations and in evidence before the court to represent that they were not in a domestic relationship at the time Ms Elford made an application for the Home Buyer Concession on 2 April 2011. There were some obvious indicators of an ongoing relationship: the pair were still living together, Mr Benn put money in Ms Elford’s bank account in the period in which they were said to be separated and whilst one deposit was said to be the repayment of a loan the other was not explained. The telephone communication between the two of them was far greater than one could imagine would take place between two people not in a relationship, but these matters alone would merely raise strong suspicion as to an ongoing relationship.
I am moved beyond suspicion, however, by consideration of the chronology of this matter and the communications between both defendants and their solicitors in respect to arrangements the purchase of land in Bonner. The emails of 10 March and 9 May 2011 evidence an ongoing relationship and a plan to maximise their financial position. The defendants’ evidence appears to have been framed retrospectively to fit the independent evidence. For example, it was not until the hearing of this matter that both defendants gave evidence that, in fact, the relationship resumed on 4 or 5 May 2011, coincidentally either the day before or the day that the pair of them applied for a joint bank account.
The defendants’ explanations as to the fact that they were unable to recollect the date of the resumption of their relationship are particularly incredible. (Transcript page 91)
The appellants submit that the Magistrate’s criticism of them not giving evidence until the hearing was an error. They further submit that the prosecution adduced evidence of only two emails forwarded to their solicitors on 10 March and 9 May 2011, and that no witness was called to provide evidence of any related or ancillary communication. The appellants accept that the emails could, in isolation, give rise to the inference drawn by the Magistrate, but it could not be said to be the only inference available.
Respondent’s submissions on appeal
The respondent submitted that, inferentially, Ms Elford did make reference to being concerned about the commitment to purchasing land in her evidence when she said, “At the time I didn’t really care what happened to the property, I just knew I didn’t want to be, like, that committed to Justin who I didn’t know” (transcript page 19, line 20). The respondent further submitted that given the evidence from both appellants to the effect that they were estranged during the period March to May 2011, the number of telephone calls or SMS messages during that period is implausible. The respondent also submitted that the Magistrate’s reference to Ms Elford not explaining the second payment into her account by Mr Benn during the period of their estrangement was “a minor point” going to the weight that can be attributed to the evidence looked at as a whole. The respondent submitted that the Magistrate’s reference to the evidence of Mr Lam was simply an assessment of the evidence, and the weight that can be given to that evidence. The respondent also submits that it is unlikely that Mr Benn would have forgotten an account containing $35,000.00 at the time he and Ms Elford consulted to try to work out the date on which they recommenced their relationship. Finally, with respect to the last matter raised by the appellants, the respondent submitted that the chronology of events was significant in that the dates provided in their statutory declarations were significantly at odds with the evidence that they gave during the hearing. The respondent submitted that an inference could clearly be drawn that the evidence given by the appellants at the hearing in relation to the chronology of their separation was designed to overcome the problems with chronologies provided in their statutory declarations and to “dovetail” with other potentially inculpatory evidence.
Consideration
I am satisfied that the convictions imposed by the Magistrate, and the consequent penalties, should be set aside and verdicts of not guilty substituted. There are a number of reasons why this should be the case. I will identify those errors which lead me to conclude that the convictions must be set aside, and I will also consider the weight to be given to the evidence, and the inferences that should be made based upon the evidence.
With respect to the first matter complained of by the appellants, I am satisfied that the Magistrate misapprehended the evidence of Ms Elford. She gave evidence of a history of abusive relationships, all of which had started as normal relationships. Her evidence was to the effect that she initiated the separation because of her concern about getting too close to Mr Benn. A fair reading of her evidence in no way suggests that her concern was about committing to the purchase of land. Indeed, a fair reading of her evidence is to the contrary. After deciding to break up with Mr Benn, she determined that she would continue with the purchase of the Bonner property. The Magistrate’s finding was a significant error, apt to infect her view of the credibility of Ms Elford.
The Magistrate was entitled to take into account the number of telephone calls and text messages between the appellants as revealed in the telephone records in determining whether they were in a domestic relationship between March and May 2011. It is unfortunate however that the Magistrate did not essay any analysis of the telephone records. By far the greatest number of contacts between the appellants revealed in the records of Mr Benn’s mobile phone is SMS messages. Unfortunately, no evidence was called to explain these records. The SMS messages recorded are usually, although not invariably, in pairs, the first being “originating SMS” and the second being “terminating SMS”. These pairs are usually no more than 2 or 3 seconds apart, suggesting that this was the one message being sent from Mr Benn’s phone and received by the recipient. This would make the number of calls, by itself, misleading as the basis of any finding that communications between the appellants were inconsistent with them not being in a domestic relationship. Secondly, an analysis of the calls from Mr Benn’s mobile phone would have revealed numerous days during this period when there was no contact at all between the appellants. I also think it fair to observe that there were more actual telephone calls, as opposed to SMS messages, from Mr Benn’s phone to that of Ms Elford after the beginning of May 2011, when they testified they renewed their relationship, than there was in the previous two months. Without an explanation of the way in which these records were compiled, and what they actually meant in terms of contact between the parties, they could be given very little weight. I would not, however, be willing to describe her Honour’s reliance on this material as an error.
I am satisfied that the Magistrate reversed the onus of proof with respect to the significance of the second payment into Ms Elford’s account by Mr Benn during March and April 2011. The prosecutor in the proceedings before the Magistrate did not question Ms Elford or Mr Benn about this payment, and never suggested to them that it was inconsistent with their evidence that they were not in a domestic relationship at that time. The Magistrate returned to this issue, and the proposition that the payment was “not explained”, in her final consideration of the case, suggesting that it was a matter which she viewed as important. I note that at no point in the Magistrate’s final reasons did she instruct herself on the onus of proof, such that one might be satisfied that her statement that the second payment had not been explained was a mere slip of the tongue. There was no onus on either of the appellants to explain this payment; rather, the onus fell on the prosecution to establish that this payment was in some way relevant to its proposition that the appellants were living in a domestic relationship at the relevant time. This was a significant error of principle on the part of the Magistrate.
It was not an error on the part of the Magistrate to observe that Mr Lam’s knowledge of the relationship between the appellants in March and April 2011 was based solely upon what he was told by Ms Elford. This was clearly correct. The Magistrate, however, in my view has missed the significance of this evidence. Not only did it corroborate the evidence of the appellants that they were not living in a domestic relationship in March and April 2011, it also significantly corroborated their evidence that the relationship recommenced in early May 2011. It raised May as an important date in this narrative, as the time at which it was said that the appellant’s relationship was renewed, well before any enquiry was commenced by ACT Revenue. This is of considerable significance because of the weight the prosecution, and the Magistrate, gave to the improbability of the appellants having nominated in their statutory declarations that their relationship recommenced in June or July 2011, if it really recommenced in early May 2011. The prosecution case, accepted by the Magistrate, was that the appellants were at all times in a domestic relationship and that they falsely claimed that this relationship broke down between March and May 2011 so as to enable Ms Elford to obtain concessional stamp duty on the property. The prosecution alleged, and the Magistrate accepted, that the appellants originally chose to falsely claim, in their statutory declarations, that their relationship renewed in June or July 2011, but later changed their position when evidence came to light contradicting their initial position. It is inherent in the statement made by the Magistrate, that the evidence given by Mr Lam was based solely on the statements of Ms Elford, that she considered the possibility that Mr Lam may have been misled by Ms Elford as part of the process of the appellants attempting to fraudulently obtain concessional stamp duty. What makes this highly unlikely is the evidence given by Mr Lam, unchallenged by the prosecution, that he became aware in May 2011 that the appellants had renewed their relationship. If Mr Lam was being misled by Ms Elford as part of a fraud, it is highly unlikely that she or Mr Benn would have told Mr Lam in May 2011 that they were together again. There is no suggestion that Mr Lam became aware of the recommencement of the appellants’ relationship otherwise than through the appellants themselves. Not only does Mr Lam’s evidence support the propositions that the appellants’ relationship broke down between early March and early May 2011, and then recommenced in May 2011, it also inferentially supports the evidence of the appellants that they made a mistake as to the date their relationship recommenced when they completed the statutory declarations.
No error of fact or principal on the part of the Magistrate is demonstrated with respect to her comments concerning the unlikelihood of the appellants having mistakenly claimed in their statutory declarations that their relationship recommenced in June or July 2011 if it really recommenced in early May 2011. Having said that the Magistrate was entitled to take this view, I do not share it. There is nothing inherently improbable in a couple concerned about a pregnancy and subsequent premature birth, accompanied by health concerns for the child, being confused about the precise timing of events that occurred some 10 months earlier, or overlooking potential means of confirming the precise timing of events. The approach taken by the Magistrate was a counsel of perfection.
The Magistrate was entitled to find that the contents of the email of 10 March 2011 to MV were suspicious, and it was not an error for her to take that finding into account in determining whether she was satisfied that the appellants were in a domestic relationship as at 10 March 2011. The contents of that email appear to me, however, not inconsistent with the evidence given by the appellants that their relationship had broken down in early March 2011, that Ms Elford had determined to continue with the purchase of the property on her own account, and that Mr Benn was providing her with assistance in dealing with the solicitors and other parties. In my opinion, there is nothing inconsistent between the evidence given by the appellants and the contents of the email of 9 May 2011 to MV. The most suspicious aspect of the email of 9 May 2011 is the instruction that Mr Benn’s name is to be added to the land title after settlement. This, however, is explained by Mr Benn’s evidence that the vendor, the Land Development Agency, would not agree to a variation of the contract documents before settlement. It is also pertinent to note that in this email Mr Benn contemplates an increase in stamp duty payable as a consequence of a transfer of the property from Ms Elford to joint ownership.
I am satisfied that the Magistrate made errors of fact and principle in determining that the appellants were guilty of the offences. After considering the evidence which was before the Magistrate, I find that I am not satisfied beyond reasonable doubt that when Ms Elford completed the HBCS application on 2 April 2011 she was in a domestic relationship with Mr Benn. I am also not satisfied beyond reasonable doubt that either of the appellants knowingly made a false statement in their statutory declarations.
Before concluding this matter, there are two other issues that must be addressed. First, it is clear with respect to the charge against Ms Elford under s 337 of the Criminal Code, that Ms Elford made no statement to the Territory “on or about 2 April 2011” as alleged in the charge. Ms Elford completed the HBCS application on 2 April 2011, but it was not lodged with the Territory by MV until 10 May 2011. The statement was not made to the Territory, therefore, until 10 May 2011. On one view of the matter this means that the statement contained therein, that Ms Elford was single and by inference not in a domestic relationship, was false at the time it was made to the Territory, even on Ms Elford’s own account. The respondent submitted that to the extent there was an error concerning the dates of the alleged offence in the charge before the Magistrates Court, this was a matter of particulars from which it could be allowed to deviate. There can be no doubt that I have the power to allow an amendment of the charge which was before the Magistrates Court so as to ensure that the real issues are determined: Le v Shute [2000] ACTSC 56. The respondent did not seek to amend the charge during the course of the appeal, and in my opinion it should not be allowed to deviate from the basis on which the hearing was conducted in the Magistrates Court. In my opinion, to allow the respondent to amend that charge, or to depart from the basis of the prosecution before the Magistrates Court, would potentially work great injustice. The focus of the proceedings in the Magistrates Court, with respect to the charge under s 337 of the Criminal Code, was on whether the appellants were living in a domestic relationship as at 2 April 2011. If the respondent was permitted to restructure its case to allege an offence on 10 May 2011, questions of the knowledge of Ms Elford of the date on which the HBCS application was lodged by MV, which were not relevant at the hearing in the Magistrates Court, or explored in that Court, would now become important. The respondent should not be entitled, at this late hour, to change the way it puts its case against Ms Elford on this charge.
The second matter I want to address is the failure of the prosecution in the Magistrates Court to prove that the statutory declarations completed by the appellants were, in law, statutory declarations for the purposes of s 336A of the Criminal Code. It is an element of the offence, as charged against each of the appellants, that they made a statement in a statutory declaration. The term “statutory declaration” is not defined in the Criminal Code, but it is defined for the purposes of all ACT legislation in the Dictionary to the Legislation Act2001 (ACT) as meaning a statutory declaration made under the Statutory Declarations Act1959 (Cth). The requirements for a statutory declaration are set out in s 8 of that Act:
A statutory declaration made under this Act must:
(a)be in the prescribed form; and
(b)be made before a prescribed person.
Accepting for present purposes that the documents completed by each of the appellants was in the prescribed form for a statutory declaration, the prosecution must still prove that the declaration was made before a prescribed person. Regulation 4 of the Statutory Declarations Regulations 1993 (Cth) provides:
For paragraph 8 (b) of the Act, each of the following persons is prescribed:
(a)a person who, under a law in force in a State or Territory, is currently licensed or registered to practice in an occupation listed in Part 1 of Schedule 2;
(b)a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of Australia, as a legal practitioner (however described);
(c)a person listed in Part 2 of Schedule 2.
The statutory declaration provided by Ms Elford is expressed to have been declared at Ginninderra Pharmacy on 18 February 2012. The name of the person before whom the declaration was made is provided, as is the description “pharmacist” under that person’s signature. “Pharmacist” is an occupation listed in Part 1 of Schedule 2 to the Statutory Declarations Regulations 1993 (Cth), but it must be recollected that the Regulations require that the person witnessing the declaration is not simply a pharmacist, but is also currently licensed or registered to practice in that occupation in a State or Territory. There was no evidence that the person who witnessed Ms Elford’s declaration was a person currently licensed or registered to practice as a pharmacist in a State or Territory. The prosecution was aware of the name of the person said to have witnessed the declaration, and it would have been relatively easy for the prosecution to have established that he or she was a person qualified to witness a statutory declaration. Similarly, the statutory declaration completed by Mr Benn was apparently declared before a person whose name appears on the declaration form, and under whose signature appears “B Pharm”. I assume that this is an abbreviation of Bachelor of Pharmacy. Holding a degree of Bachelor of Pharmacy may entitle a person to describe themselves as a pharmacist, but it says nothing about whether they are currently licensed or registered to practice in that occupation in a State or Territory. It would, again, have been relatively easy for the prosecution to have established that this person was a person qualified to witness a statutory declaration. These issues were not raised by the appellants before the Magistrate, and I must confess that I was the person who raised the issue on the appeal. As I have already determined that the Magistrate made errors such that her decisions must be set aside, and as I have already determined that there is a reasonable doubt as to the guilt of the appellants based upon the evidence, it is not necessary for me to rely upon the apparent failure by the prosecution to prove that these documents were, in law, statutory declarations in determining the outcome of these appeals. I have sympathy for a prosecutor who is led to believe that only particular issues are being pursued by an accused person in summary proceedings, and presents their case accordingly. In the absence, however, of formal admissions of essential matters, the onus always remains on the prosecution to prove each of the elements of an offence.
Conclusion
For the reasons that I have given, the convictions and penalties imposed by the Magistrate are set aside, and verdicts of not guilty are substituted. I order the respondent to pay the appellants costs of the appeal, and the proceedings before the Magistrate, but I stay that order for a period of 14 days to allow the parties to make an application for some different costs order if appropriate.
| I certify that the preceding forty nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 20 October 2014 |
0
0
6