Hogg & Hogg v Director of Public Prosecutions No. Scgrg-99-17, Scgrg-99-18 Judgment No. S137

HOGG AND HOGG V DIRECTOR OF PUBLIC PROSECUTIONS
[1999] SASC 137

Magistrates Appeal

LANDER J. The appellants were both charged with thirty-four counts of knowingly obtaining payment of an instalment of a Social Security payment namely a disability support pension which was only payable in part. The offences were alleged to have occurred between 22 March 1996 and 7 August 1997.
The thirty-four counts related to pension payments which were made fortnightly on each of the fortnights between those two dates.
The appellants were charged on separate complaints and the complaints were heard together. They were both represented by the same counsel and they both pleaded not guilty, but both were convicted of all of the counts alleged against them.
They each received the same sentence, which was imprisonment for a period of two months, but each was released forthwith upon each of them entering into a bond in the sum of $200 to be of good behaviour for a period of twelve months.
Both appellants have appealed against their convictions.
Both have filed amended notices of appeal which contain the same grounds of appeal.
Those grounds of appeal are:
“1..... The finding of guilt by the Learned Magistrate is unsafe and unsatisfactory and against the weight of the evidence.
2.     The Learned Magistrate erred in allowing the Prosecution to split its case and re open and call evidence in the middle of the defence case.
3...... The finding by the Learned Magistrate that there was no record of Mrs Hogg advising the Department of Social Security of her work with Trinity College in February 1996 was an erroneous finding as the records produced by the prosecution only related to the period from 12th February to the 1st April 1996 (see pages 9, 11, 12 of the Learned Magistrate’s Judgement and compare it to the evidence of A Randall page 38 of the transcript)
4.     The learned Magistrate failed to properly apply the burden of proof which is evidence by page 12 of the Judgement where His Honour says “but four omissions for the one client record is stretching the bounds of probability”.
5...... The Learned Magistrate misdirected himself on the topic of lies as indicators of consciousness of guilt (Judgement p14).
6.     The Learned Magistrate failed to properly direct himself on the good character of the two defendants.”
Counsel for the appellants has addressed each of those grounds of appeal. It would be fair, however, to say that the principal attack has been in relation to ground 1.
On 21 October 1991, the male appellant became entitled to a Disability Support Pension. The female appellant became entitled to a Wife’s Pension, because of her husband’s entitlement to a Disability Support Pension.
On 5 October 1993, the female appellant advised the Department of Social Security that she had commenced employment with Quirks Cleaning Company and was employed for about fifteen hours per week at a rate of $9.00 per hour.
On 1 February 1996, the male appellant commenced employment with the Munno Para Bowling Club. He remained in that employment until the end of June 1997 when his employment was terminated.
On 12 February 1996, the female appellant commenced employment at Trinity College, Gawler. She remained in that employment until August 1997.
On 1 April 1996, the male appellant received a letter of advice from the Department of Social Security setting out details of his pension and his obligations under the Social Security Act. Those obligations include an obligation to advise the Department of Social Security of any changes in the combined income of himself and his partner.
The letter advised him that his pension would be $216.50 per fortnight and that, under the Social Security Act, he had to inform the Department if his and his wife’s combined income, not including maintenance, exceeded $250 per week or if the combined income shown in the letter as $13000 was incorrect or if he or his partner started work or recommenced work.
After the female appellant commenced work at Trinity College, she did not receive a letter of the kind received by the male appellant but she had previously received a letter in similar terms on 16 August 1995.
On 21 July 1997, the male appellant received a further letter of advice from the Department of Social Security again setting out details of his pension. His pension entitlements had changed because he had ceased employment in June 1997. The letter again reminded him of his obligations under the Social Security Act and the letter reminded him that he had to advise the Department if his and the female appellant’s income was incorrect or if he or the female appellant had started work or recommenced work.
The facts to which I have referred were all agreed.
The respondent’s case was that between February 1996 and August 1997 neither of the appellants advised the Department of Social Security that the female appellant was employed and in receipt of an income for the whole of the period between February 1996 and August 1997.
Her income, during that period, varied. Sometimes it was as high as $1000 per fortnight. It fell as low as $251.49 per fortnight and on three fortnights she received no income.
Her average income was in the vicinity of $800 per fortnight.
There is no doubt that her income during that period was material to the amount of pension payable to both the male and female appellants.
The respondent’s case was that neither appellant advised the respondent prior to 12 August 1997 that the female appellant was employed and that she was in receipt of the income which she subsequently disclosed.
The respondent claimed that the appellant’s offences consisted, on each of the fortnights between February 1996 and August 1997, in failing to disclose that information.
The respondent’s case was a circumstantial one. It sought to establish the absence of a report by reference to its internal practises. It was the respondent’s evidence that, if any contact was made with the respondent, either by telephone or otherwise, the officer within the Department was obliged to record that contact on a computer. The record on that computer would act as a footprint indicating the date and time of the contact and the information conveyed by the party contacting the Department of Social Security.
The respondent led evidence to establish that, with one exception, there were no computer entries between 12 February 1996 and 12 August 1997. The respondent’s case was that the male appellant contacted the Department by telephone on 12 February 1996 and advised that he had obtained part time work and was earning $250.00 per week. There is a computer record of that telephone call and the advice. It was that advice which prompted the letter of the Department of 1 April 1996 to the male appellant. It was because of that advice that the letter of 1 April 1996 referred to a combined income of $13000 per annum i.e. $250 per week. Specifically, however, the respondent’s case was that the male appellant did not mention that the female appellant was employed. It was also the respondent’s case that the female appellant did not notify the respondent of her employment. Thus it was said the appellants had contravened the Act and were guilty of the offences.
Of course, the respondent had the obligation to prove beyond reasonable doubt that in respect of each of the counts both appellants knowingly obtained an instalment of a Social Security payment under the Social Security Act in circumstances where they were not entitled. The respondent was obliged to exclude any reasonable hypothesis consistent with innocence.
The appellants were under no obligation to establish anything. However, they both gave evidence and both claimed that the Department was notified in February of 1996 that the female appellant had commenced her employment at Trinity College. The female appellant said that she telephoned the Department and advised the Department that she had obtained employment at Trinity College and that she would be earning $12 per hour for thirty-two hours per week at work. She was not able to say when it was in February that she telephoned but that it was sometime in February.
Mr Hogg also said that he advised the Department of Social Security sometime in February that he had obtained the work to which I have referred at the Munno Para Bowling Club. He was present, he said, when his wife telephoned the Department of Social Security to tell the Department of her employment.
There is no doubt that some contact was made with the Department of Social Security on 12 February 1996. The computer documentation confirms, as I have already said, that some contact was made on that day. The computer record, however, does not indicate that the Department was told of the female appellant’s employment. The records indicate that the Department was advised that the male appellant had started work that day and was earning $250.00 per week.
It is common ground that there was no contact initiated by the appellants with the respondent between February 1996 and August 1997. The records show that on 12 August 1997 the female appellant contacted the Department. She said she contacted the Department because at or about that time she and her husband had been advised that as her husband had ceased work at Munno Para Bowling Club, she was again entitled to a full pension. She thought that must be an error on the part of the Department because she was then employed at Trinity College.
She does not explain why the same thought did not occur to her prior to 12 August 1997 when she and her husband were both in receipt of a pension but both, of course, were then working.
In any event there is a dispute as to what the female appellant told the Department at that time.
The Department records indicate that on 12 August 1997 the appellant said that she had commenced work on 19 June 1997. If she said that she started work on that date that would be untrue.
The records indicate that the Department was told of the amount of her wages over three fortnights the first fortnight ending on 3 July 1997 and the last ending on 31 July 1997.
That information, which was in fact correct, could only have came from her. The first fortnight ending on 3 July 1997 corresponds with her starting work on 19 June 1997. The records are internally consistent with the female appellant having told the Department that she first started work on 19 June 1997. The records suggest that the female appellant’s evidence on this topic was untrue.
On 13 August 1997, the respondent sent to the female appellant’s employer a document entitled “Employment Verification Report”. That sought employment details including whether the female appellant was employed full time, part time or casual, the date upon which her employment commenced and the number of days per week she was employed. The Department also inquired whether the employment had ceased or whether it was likely to continue on the same basis.
That document was completed by the office manager of Trinity College at Gawler. The document indicated that the female appellant’s employment had commenced on 12 February 1996 and continued until the end of May 1997. The document also indicated that the female appellant was employed on a casual basis five days per week and that her employment had not ceased and that it was likely to continue.
The office manager made an error in the document. In the employment details she incorrectly recorded the employment commencement date against the date of birth of the female appellant.
On 15 August 1997, the female appellant again rang the Department. She advised that when she last rang the Department there was nothing on the system about her commencing work. She sought an appointment to discuss the matter. An appointment was made for 18 August 1997. That telephone call took place at 9.15am.
On the same morning and seventeen minutes later the female appellant’s employer rang to advise that when filling in the Employment Verification Report she had accidentally placed the female appellant’s date of commencement of employment against the question relating to her date of birth.
The coincidence of timing between the letter being sent to the employer and the female appellant’s request for an appointment compels the inference that on the morning of 15 August the female appellant became aware that her employer had received the Employment Verification Report and had advised the Department that the female appellant had commenced work on 12 February 1996. The inference must be that the female appellant recognised that that advice was inconsistent with the advice she had given the Department on 12 August 1997. That is why she rang immediately before her employer to seek an appointment to discuss the matter.
The learned Magistrate identified the issue in the case which was whether or not the female appellant did telephone the Department of Social Security on or about 12 February 1996 and advise the Department that she had commenced work. As I have already indicated there is no doubt that the male appellant notified the Department on that day that he had commenced work.
In determining that issue the learned Magistrate correctly directed himself that the onus was upon the respondent to establish each and every element of the offence and because the case was a circumstantial one that he was obliged to consider whether the prosecution case excluded any hypothesis consistent with innocence, and to use his term:
“... there is an inescapable inference that the defendants knowingly received such payments.”
After discussing the evidence the learned Magistrate concluded that both defendants had lied to him and both lied out of a consciousness of guilt.
However, notwithstanding that he concluded that both of them lied out of a consciousness of guilt he said that it was necessary for him to have regard to the totality of the evidence.
He formed the conclusion that on the totality of the evidence the respondent had proved its case beyond reasonable doubt.
It was put by the appellant, on this appeal, that the finding of guilt was unsafe and unsatisfactory and against the weight of the evidence.
It was argued that the learned Magistrate should not have been satisfied beyond reasonable doubt that neither appellant had notified the Department on or about 12 February 1996 that the female appellant had commenced work.
It was put that the female appellant’s notification on 12 August 1997 was consistent with innocence and consistent with her understanding that the Department had previously been advised that she was working.
I do not agree with that submission. I am satisfied, like the learned Magistrate, that the notification given on 12 August 1997 was in part correct but in a material particular, incorrect. I believe that the evidence supports the conclusion arrived at by the learned Magistrate that the female appellant advised the Department on 12 August 1997 that she had commenced work on 19 June 1997. That was untrue as she had commenced work on 12 February 1996. For the reasons I have already stated the female appellant was well aware that the Employment Verification Report sent to her employer was likely to reveal the untruth in her telephone conversation of 12 August 1997. It was for that reason that she sought an appointment to try to rectify the untruth which she had told on 12 August 1997.
In my opinion that evidence is consistent with the respondent’s case that neither of the appellants advised the Department on or about 12 February 1996.
Complaint was made that the Department failed to call a witness, Sheona, who was employed in the Department of Social Security at its Gawler office and with whom, the appellants claim, they had three conversations. The witness was apparently overseas at the time the matter came before the learned Magistrate.
In my opinion, there is nothing in that point. Her evidence was not material and not likely to affect the result.
I must say I not only do not disagree with the learned Magistrate in the conclusion at which he arrived but, in fact, I agree with the conclusion. In my opinion, the evidence was such that the respondent established, beyond reasonable doubt, the necessary elements of the offences.
The learned Magistrate had an advantage which I do not enjoy. He had the advantage of seeing the appellants. He formed the opinion that they lied out of a consciousness of guilt. That conclusion was available to him. In my opinion, in arriving at that conclusion, he did not misdirect himself: Edwards v R (1993) 178 CLR 193.
The appellants also complained about the course of the trial before the learned Magistrate. At the conclusion of the female appellant’s evidence the prosecutor applied to have her recalled for further cross examination and for the purpose of presenting further evidence. The evidence which the respondent sought to have admitted in that further cross examination was an extract from her wages book for the period between 3 July 1997 and 30 July 1997.
The learned Magistrate acceded to the request and allowed the respondent to re-open its cross examination of the female appellant and to tender that document in that further cross examination.
That ruling was made in the circumstances where the appellants were tried jointly. They each gave evidence in their own defence. No other witnesses were called. After the prosecution completed its case, counsel for the appellants asked the learned Magistrate to give himself a direction of the kind referred to in R v Prasard (1979) 23 SASR 161. He declined that invitation. The female appellant gave her evidence in chief. She was cross examined. The cross examiner indicated that he had completed his cross examination. The female appellant’s counsel did not seek to re-examine. The matter was adjourned to the next day.
When the matter resumed on the next day the prosecutor applied for the recall of the female appellant to put the further cross examination. The learned Magistrate acceded to the application and she was further cross examined. The purpose of the cross examination and the tender of the exhibit was to establish that she had worked for the whole period between 3 July and 30 July 1997 and to establish that 19 July was a Saturday.
In her examination in chief she had said, for the first time, that in her conversation with the Department on 12 August 1997 she had referred to 19 July 1997 not 19 June. She said the new school term had started on 19 July and that was why she mentioned that date.
The female appellant complains of the decision by the learned Magistrate to allow the further cross examination and the tender of the exhibit in the cross examination. Counsel relied upon Shaw v The Queen (1952) 85 CLR 365. In that case the accused was charged with murder. After the completion of the Crown case the accused gave evidence on his own behalf. In his evidence he admitted that he said:
“ ‘Go and find the bastard that throttled Sylvia.’”
When asked why he had used the expression ‘throttled’ he said he had heard the police talking about it and assumed she had been ‘throttled’.
After the close of the defence case the Crown sought to re-open its case to establish that at the relevant time nothing had been said by the police officers from which it might be inferred that she had been strangled. It was the fact, however, that she had been strangled. The prosecution sought to recall the police officers for that purpose.
That application was granted and the accused was convicted. The majority (Dixon, McTiernan, Webb, Kitto JJ) in the joint judgment said that the clear principle is that the prosecution must present its case before the defence opens its case. Whilst the court possesses the power to allow further evidence to be called that power must only be exercised in the most exceptional cases.
In the circumstances of that case they said that the Crown Prosecutor’s application to recall the police officers should have been refused.

Shaw v R has been recently approved and followed by the High Court in Killick v R (1981) 147 CLR 565, R v Chin (1985) 157 CLR 671 and Lawrence v R (1981) 38 ALR 1. In Lawrence v R, Gibbs CJ said at p3:
“The principal authoritatively stated in Shaw v R (1952) 85 CLR 365, that the prosecution must present its case completely before the prisoner’s answer is made, applies with equal force whether the Crown seeks to introduce evidence during the course of the case for the defence or after the close of the case for the defence. The rule that the prosecution may not split its case, but must offer all its proofs before the prisoner is called upon for its defence, is not merely technical but is an important rule of fairness. This has recently been re-asserted by majority of this Court in Killick v R (1981) 37 ALR 407. The rule cannot be eroded by too ready an acceptance by a suggestion by the Crown that the circumstances are exceptional. Trial judges must give full effect to the rule that the occasion must be very special or exceptional to justify a departure from the governing principal, and that generally speaking an occasion will not suffice for allowing an exceptional cause, if it ought reasonably to have been foreseen.”
This matter is somewhat different. The application for further cross examination in this case followed immediately after the completion of cross examination. The prosecutor did not, in those circumstances, split the cross examination. No further evidence including re-examination was given by the female appellant before the prosecutor sought and was granted leave to further cross examine. In my opinion, the learned Magistrate was right to allow the further cross examination.
However, during that cross examination, an exhibit was introduced in the case for the first time and after the female appellant had completed her evidence in chief. That exhibit answered a suggestion in the female appellant’s evidence that there was an error on the part of the department in the recording of the information and that she had not referred to 19 June but 19 July. In fact that exhibit showed she worked on 16 July and on 22 July but not 19 July, which was a Saturday. She agreed she could not have been right in her claim that she had worked on 19 July. There had been no previous suggestion by the appellant that 19 July was the relevant date and that it coincided with the start of the school year and that was the reason why the date had been given to the Department.
In those circumstances the respondent could not have known that it was relevant to establish that the female appellant worked through the whole of July but in particular did not work on Saturday 19 July. In those limited circumstances the situation was exceptional (see R v Chin (1985) 157 CLR 671 at 677) and allowed the learned Magistrate to give leave to the Prosecutor to introduce, in that further cross examination, the document refuting the suggestion made for the first time by the female appellant in her evidence in chief.
It must be said that the appellant’s suggestion that she had given the date of 19 July not 19 June to the Department, in my opinion, further undermined the female appellant’s credibility. If that is what she had said why would she have given details of her earnings in the week ending 3 July?
In my opinion the second ground must fail for the reasons I have given.
The third ground of appeal really is no more than a particular of the first ground. In any event there is no suggestion that there was a relevant communication apart from a communication in early February 1996.
The fourth ground must also fail, as in my opinion the learned Magistrate did not fail to properly apply the burden of proof in his reasons. His reasons indicated, in my opinion, that he well understood where the burden of proof lay and the standard required.
I have already dealt with ground five.
The last ground of appeal is that the Magistrate failed to properly direct himself on the good character of the two appellants.
In my opinion there is nothing in this ground. The High Court has held that there is no reason to assume that a jury would not understand that evidence of an accused’s good character bears on the probability or improbability of guilt in the absence of a direction to that effect: Simic v The Queen (1980) 144 CLR 319 at 333. The learned Magistrate indicated, in his reasons, that both Mr and Mrs Hogg have no previous criminal history. Just as it may be assumed that a jury will give proper weight to character evidence in the absence of a direction, it may be assumed that by referring to the evidence he had regard to their good character in determining the issues before him. The fact that he recorded the absence of previous convictions indicates, in my opinion, that he had appropriate regard to their good character.
In my opinion, all of the grounds of appeal fail and the appeal must be dismissed.

[1999] SASC 137

13 April 1999