Jones v Commonwealth Services Delivery Agency

[2012] SASCFC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

JONES v COMMONWEALTH SERVICES DELIVERY AGENCY

[2012] SASCFC 113

Reasons for Decision of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)

27 September 2012

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal to the Full Court in private – appeal from a single Judge of the Supreme Court dismissing the applicant’s appeal against his conviction in the Magistrates Court – grounds of appeal raise matters of construction and constitutional validity.

Held: Application for permission to appeal referred to the Full Court.

Criminal Code (Cth) s 135.2; Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth); Society Security (Administration) Act 1999 (Cth) s 66A(1), referred to.
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408, discussed.

JONES v COMMONWEALTH SERVICES DELIVERY AGENCY
[2012] SASCFC 113

Full Court:  Kourakis CJ, Blue and Stanley JJ

1. THE COURT:  This is an application for permission to appeal a decision of a single Judge of this Court dismissing the applicant’s appeal against his conviction in the Magistrates Court for engaging in conduct resulting in the obtaining of a financial advantage from Centrelink knowing or believing that he was not eligible to receive that advantage contrary to s 135.2(1) of the Criminal Code (Cth). The prosecution relied on the applicant’s failure to inform Centrelink that he had returned to work. The applicant was convicted on 4 June 2010. His appeal to this Court was dismissed on 29 June 2012.

2. In Director of Public Prosecutions (Cth) v Ponitowska[1] the High Court held that s 135.2 of the Criminal Code did not impose liability for an omission because, at the relevant time, the defendant was not subject to a duty imposed by a law of the Commonwealth to take steps to inform Centrelink of his return to employment.  Nor was there any such statutory obligation during the time of the applicant’s alleged wrongful omission.

   [1] (2011) 244 CLR 408.

3. After the hearing, but before the determination of the appeal in Poniatowska, and after the conviction of the applicant, the Commonwealth enacted the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) (the amending Act). The amending Act enacted s 66A(1) of the Society Security (Administration) Act 1999 (Cth) (the Act).  Section 66A(1) of the Act retrospectively imposed an obligation on the applicant to notify Centrelink of a relevant change in circumstances.  The amending Act provides that s 66A of the Act applies in relation to an event or change in circumstances that occurs on or after 20 March 2000. 

4. The grounds upon which the applicant seeks permission may be summarised as follows:

   Ground 1

   That notwithstanding the express application of the Amendment Act to events or circumstances occurring on or after 20 March 2000, on a proper construction, it did not apply to alleged omissions which had been the subject of judicial determination.

   Grounds 2 and 3
   In the alternative, in so far as s 66A of the Act purports to retrospectively alter the effect of a judicial determination it is invalid.

   Grounds 4 and 5
   Even if s 66A of the Act validly applies to this matter, it is nonetheless ineffective because the mental element of an intention not to inform Centrelink can not possibly be proved with respect to an obligation which did not exist, in fact, at the relevant time.

   Ground 6
   The Appeal Judge erred in failing to deal with the applicant’s complaint that the Magistrate had erred in his application of the presumption of innocence and in particular his analysis and evaluation of the existence of a reasonable doubt.

5. The first five grounds appear to raise matters of construction and constitutional validity which are of general importance.  An application to the High Court to remove similar questions has been made in a Victorian matter.  The grounds require a consideration of the effect and validity of s 66A of the Act on an appeal by way of rehearing in which, in the ordinary course, the law as it stands at the time of the appeal is applied.  The application for permission to appeal will be referred to the Full Court so that it can consider it further in the light of the progress of the Victorian matter.

6. The application for permission to appeal on Ground 6 will also be referred to the Full Court so that it can consider the proper disposition of the application after hearing oral argument.