Jager v Lynch

[2003] TASSC 114

[2003] TASSC 114

CITATION:              Jager v Lynch [2003] TASSC 114

PARTIES:  JAGER, Stephen Dennis
  v
  LYNCH, Steven

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LDR LCA 25/2003
DELIVERED ON:  6 November 2003
DELIVERED AT:  Hobart
HEARING DATES:  20 October 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Official questioning without caution – What constitutes questioning.

Evidence Act 2001 (Tas), ss138(1), 139(2).
Aust Dig Criminal Law [423]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  I M Arendt
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions (Commonwealth)

Judgment Number:  [2003] TASSC 114
Number of Paragraphs:  17

Serial No 114/2003

File No LDR LCA 25/2003

STEPHEN DENNIS JAGER v STEVEN LYNCH

REASONS FOR JUDGMENT  BLOW J

6 November 2003

1. The applicant has moved the Court to review a determination of a magistrate whereby that magistrate found that 39 charges against the applicant had been proved.  Each charge alleged that the applicant had knowingly or recklessly presented to a Commonwealth officer a document entitled "Application for payment of Newstart Allowance" in which his partner's income had been understated.  Before the learned magistrate, there was no dispute as to the applicant having presented the forms, nor as to the income of his partner having been understated.  The critical issue in the case was whether, when he understated his partner's income on each of 39 occasions, he did so knowingly or recklessly.  The learned magistrate decided that issue against the applicant. 

1. The applicant has sought the review of the learned magistrate's determination on the following two grounds:

"1   The finding that the complaints were proved is unsafe and unsound in all the circumstances.

2    The learned Magistrate erred in fact and/or in law by ruling that the letter prepared by the Applicant and tendered by the Respondent at P15 be admitted into evidence."

Admissibility of exhibit P15

1. Before the learned magistrate, the complainant (now the respondent) gave evidence that he wrote to the applicant about this matter on 11 July 2001.  A copy of his letter was tendered as an exhibit.  In that letter, he advised the applicant that, in cases where an offence may have been committed, Centrelink can refer the case to the Director of Public Prosecutions to consider prosecution action.  He went on to invite the applicant to participate in an interview with a Centrelink officer.  The letter included a sentence reading, "If you agree to make a statement either verbally or in writing, it will be recorded and may be used in evidence."  The complainant went on to give evidence that he subsequently recorded in Centrelink's computer system, "Customer wished to be interviewed but following medical advice has decided to put his reasons why he thinks he was overpaid into a letter 19 July 2001".  The complainant went on to say that on 15 August 2001 he received through the mail a letter from the applicant.  The applicant's then counsel objected to the admission of that letter into evidence but, after hearing submissions at a later stage, the learned magistrate held that the letter was admissible, and it became exhibit P15.

1. The objection to the admissibility of the letter was based on the Evidence Act 2001, ss138(1) and 139(2). Those provisions read as follows:

"138 ¾ (1)  Evidence that was obtained ¾

(a)improperly or in contravention of an Australian law; or

(b)in consequence of an impropriety or of a contravention of an Australian law ¾

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."

"139  …

(2) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during official questioning is taken to be obtained improperly if ¾

(a)the questioning was conducted by an investigating official who did not have the power to arrest the person; and

(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person committed an offence; and

(c)the investigating official did not, before the statement was made or the act was done, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence."

1. It was common ground that the complainant was an investigating official; that he did not have the power to arrest the applicant; and that he had not cautioned the applicant in the terms referred to in s139(2)(c). In order for s139(2) to apply in relation to evidence of the making of a statement, it is necessary for the statement to be made "during official questioning". The applicant contends that the writing and mailing of his letter amounted to the making of a statement during official questioning within the meaning of s139(2). The respondent contends otherwise.

1. The Evidence Act, s3(1), contains the following definition:

"'official questioning' means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence;"

The Evidence Act does not include a definition of "questioning".  There does not appear to be any relevant case law as to the meaning of that word.  The High Court has considered Victorian statutory provisions as to "questioning" in Pollard v R (1992) 176 CLR 177 and in Heatherington v R (1994) 179 CLR 370, but each of those cases involved the asking of a series of questions, rather than the sort of situation where a person makes a written statement in the absence of any questioning officer.

1. It seems to me that an essential feature of any questioning is the asking of a number of questions. There was no evidence that the letter in question was written in response to any questions. The complainant's letter to the applicant offered him the opportunity to take part in an interview, but he declined. No questions were asked in that letter. There was no evidence that the complainant or anyone else asked the applicant questions by telephone. The applicant's letter was not written at a time when someone was asking him questions, nor is there any evidence that it was written in response to questions asked at an earlier time. It must follow that it was not "a statement made … during official questioning" within the meaning of s139(2), and that that subsection therefore did not apply to it. There was no suggestion that there was any other basis upon which the learned magistrate could have held that that letter amounted to evidence that was obtained improperly, in contravention of an Australian law, in consequence of an impropriety, or in consequence of a contravention of an Australian law. There was therefore no basis for him to exclude it under s138(1). He correctly held that it was not a statement made during official questioning. He was right to admit the document into evidence as an exhibit. This ground of appeal must fail.

"Unsafe and unsound" determination

1. On a motion to review a determination of a magistrate, a judge has jurisdiction to set aside a finding of guilt on the ground that it is unsafe and unsatisfactory: Kelly v O'Sullivan (1995) 4 Tas R 446; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12. A determination of a magistrate will be set aside on such a ground only if the judge is persuaded that the magistrate ought to have entertained a reasonable doubt, bearing in mind that the magistrate is entrusted with the primary responsibility of determining guilt or innocence, and has had the benefit of having seen and heard the witnesses: Kelly v O'Sullivan (supra) at 451; M v R (1994) 181 CLR 487. In relation to each charge, the complainant bore the onus of proving beyond reasonable doubt that, at the time he presented the relevant form to a Commonwealth officer, the applicant either knew that the form contained a false statement, or was aware of the possibility that it contained a false statement and was recklessly indifferent to that possibility. My task is to consider whether, on the basis of the oral evidence and exhibits before him, the learned magistrate ought to have had a reasonable doubt in relation to that issue in respect of each charge.

1. In the proceedings before the learned magistrate, the prosecutor tendered a series of forms entitled "Application for payment of Newstart Allowance".  Each contained a series of questions, with answers filled in by the applicant.  Each began with a sentence specifying that the questions were for each day of a specified fourteen-day period, eg, "The questions are for each day of the period 2 June 1999 to 15 June 1999".  Each included the following question:

"Are you married or de facto and living with your partner?

If Yes, did your partner do any work in the period?

What was the amount earned by your partner in the period before tax or other deductions?

Employer's name ………………………………..

Contact Phone No ………………………………

Date(s) worked …/…/…     …/…/…".

On each form the applicant answered "Yes" to the first two questions, stated that the amount earned was $435, filled in the employer's name and phone number, and specified as the dates worked the full fourteen-day period to which the questions related.

1. The prosecutor also tendered copies of the applicant's partner's pay slips for each relevant pay period.  She was paid fortnightly, but her pay periods did not coincide with the fortnightly periods specified on the Newstart forms.  At all material times, her gross fortnightly pay exceeded $435.  In fact, so did her net fortnightly pay for every pay period.  Her pay varied from fortnight to fortnight.  Each fortnight, she worked a number of hours for which she was paid at a "normal" hourly rate, as well as working numbers of hours for which she was paid at higher rates.  For example, she was paid at various higher rates if she worked on a Saturday, a Sunday, a public holiday, or an afternoon shift.  The mix varied from fortnight to fortnight.

1. The question on the Newstart forms did not ask the applicant how much his partner was paid during each relevant fortnight.  It asked how much she earned.  As the fortnights about which the applicant was asked did not coincide with his partner's fortnightly pay periods, correctly completing the Newstart forms would have involved a certain amount of arithmetic.  Each fortnight, it would have been necessary for the applicant to establish what hours his partner had worked at each relevant rate of pay during the relevant fourteen days, and to calculate the gross amount that she earned from her work during that period.  His case was that he tried to do this, but is no good at arithmetic, and that he came up with figures that were wrong, but which he believed to be correct at the times when he submitted the forms.  He gave evidence to that effect.

1. The charges related to a period of nearly two years ¾from about 15 June 1999 to about 15 May 2001 inclusive.  The charges relate to only 39 fortnightly forms during that period, but in each case the applicant stated his partner's gross fortnightly earnings to be $435, despite the variability of her income.  In the letter received by the complainant on 15 August 2001, the applicant made assertions as to how he believed the error had come about.  Essentially he said he believed that, when he lodged his first fortnightly form in July 1998, he estimated his partner's fortnightly earning to be $385, but added $50 to avoid the possibility of an overpayment being made to him.  He said he thought he must have examined one of his partner's pay slips, deducted the earnings not referable to the relevant Newstart fortnight, and forgotten to add on any earnings from the other pay period that overlapped with the relevant Newstart fortnight.  There were times when the applicant's partner received quite large fortnightly pays, usually because of leave payments, eg, $1,485.95 before tax in April 2000; $3,129.90 before tax in March 2001.  The applicant wrote that the error regarding her holidays pays had come about through lack of communication.

1. The applicant's letter included admissions to the effect that he had access to his partner's pay slips and knew that he should use them to calculate her earnings.  He gave evidence that he used the pay slips and information that he obtained by telephone from the employer to calculate his partner's earnings as best he could.  In his oral evidence he repeated the explanation that he advanced in his letter to the effect that he had added $50 but missed part of each fortnight's earnings.  Under cross-examination he admitted that he knew his partner worked hours that varied. 

1. The learned magistrate delivered lengthy written reasons for his determination.  He observed that the applicant had difficulty explaining what he had done in calculating his partner's earnings.  He made a finding that the applicant was obtaining a comprehensive picture of what his partner was receiving.  He referred to evidence given by the applicant in cross-examination that his partner was receiving anything between $735 and $930 per fortnight.  He observed that the possibility of the applicant being mistaken in his calculations was "not rationally compelling".  He expressed the view that the making of a mistake by the applicant in calculating his partner's earnings from her pay slips was implausible.  He referred to an assertion by the applicant that he did not know that his fortnightly payments would be less if his income was over-estimated, and concluded that that assertion was a lie told out of a consciousness of guilt.  He observed that the applicant had consistently stated his partner's earnings to be $435 per fortnight, despite his assertion that he had undertaken a series of calculations of fortnightly figures.  He made a finding that the applicant was very aware of his obligations.  He made a finding that the applicant could not have continued to believe that $435 per fortnight was his partner's average income.  He made a finding that the applicant must have known what he was doing.  He made a finding that another statement made by the applicant was a lie told out of a consciousness of guilt ¾that being an assertion that his partner had told him that she had agreed to take her holiday pay in instalments, rather than as a lump sum.  He concluded that the applicant knew the first form stating his partner's fortnightly earnings to be $435 contained a false statement, and that he acted recklessly in submitting each subsequent form containing a statement that her fortnightly earnings were $435.

1. In my view it was reasonably open to the learned magistrate to infer that, in relation to each charge, the applicant's false statement as his partner's earnings must have been made either knowingly or recklessly.  The evidence clearly established that he saw at least some of her pay slips, and that her fortnightly earnings were consistently at a much higher level than the stated $435.  His explanation as to how he arrived at that figure for each relevant fortnight, first made in his letter and then repeated in his oral evidence, was manifestly implausible given that (a) he had information as to how much she was earning; (b) he knew her earnings fluctuated; (c) he stated the same figure in dozens of forms over a lengthy period; and (d) that figure was lower than her earnings ever were.  In my view it was reasonably open to the learned magistrate, in the light of those matters, to infer that the applicant knowingly or recklessly understated his partner's income on each relevant occasion, and that there was no other rational or reasonable explanation for his repeated identical understatements of her income.  When one takes into account the additional advantage that the learned magistrate had in being able to observe the applicant under cross-examination, that provides a further reason why his determination should not be set aside.  This ground of appeal must also fail.

1. The applicant drew my attention to a finding made by the learned magistrate to the effect that he had not incorrectly stated his partner's income before submitting the first of the forms to which the charges relate.  He submitted that that finding was unjustified, since there had been no evidence one way or the other as to earlier forms.  It may be that the learned magistrate erred in making that finding.  However I think the evidence leading to an inference of guilt was so overwhelming that, even if a challenge to the finding about earlier forms had been the subject of a ground of appeal, which it was not, the only appropriate course would have been to uphold the learned magistrate's determination.

1. The motion to review is dismissed.