Jones v Commonwealth Services Delivery Agency

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SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

JONES v COMMONWEALTH SERVICES DELIVERY AGENCY

[2012] SASC 106

Judgment of The Honourable Justice Gray

29 June 2012

SOCIAL WELFARE - OFFENCES - FALSE STATEMENTS AND FRAUD - GENERALLY

STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION - AS REGARDS VESTED RIGHTS, PAST TRANSACTIONS OR NEW RIGHTS OR LIABILITIES - GENERALLY

CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

Appeal against conviction - the defendant was convicted of having engaged in conduct and as a result of that conduct, having obtained a financial advantage for himself from Centrelink knowing or believing that he was not eligible to receive that financial advantage contrary to section 135.2(1) of the Criminal Code (Cth) - the defendant's conduct for the purposes of section 135.2(1) was an omission, he failed to inform Centrelink that he had returned to paid employment and that as a result of that failure, he dishonestly received $8,743.06 - whether the operation of section 66A of the Social Security (Administration) Act 1999 (Cth) is retroactive - whether section 66A applies to proceedings pending before an appeal court - whether section 66A should be struck down under the Kable principle - whether the enactment of section 66A has the consequence that the defendant's failure to inform Centrelink can amount to a legal element of the section 135.2(1) offence - whether the retroactive application of section 66A to the defendant's appeal against conviction caused relevant prejudice or unfairness to the defendant - whether the charge was duplicitous - whether the complaint did not adequately specify the conduct relied on by the prosecution to make out the charge - whether inadmissible opinion evidence was received by the Court.

Held: Appeal dismissed - section 66A of the Social Security (Administration) Act was intended to be retroactive - section 66A is a valid enactment of the Commonwealth Parliament and does not impermissibly interfere with, intrude into or usurp Commonwealth judicial power - section 66A should be construed as applying to completed proceedings - the enactment of section 66A, the retroactive enactment of a statutory duty, has the consequence that the defendant's failure to inform Centrelink can amount to a legal element of the section 135.2(1) offence - the retroactive application of section 66A to the defendant's appeal did not cause any relevant prejudice or unfairness such as to cause the Court to stay the proceedings - the charge the subject of the present proceedings was not duplicitous as it encompassed a single contravention which resulted in the defendant receiving a financial advantage which accumulated over a period to August 2007 - the defendant…

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Details
Case
[2012] SASC 106
Decision Date

CaseChat Overview and Summary

In the case of Jones v Commonwealth Services Delivery Agency, the appellant, Jones, challenged his conviction for obtaining a financial advantage from Centrelink through fraudulent means, in contravention of section 135.2(1) of the Criminal Code. The primary issue before the court was whether the operation of section 66A of the Social Security (Administration) Act 1999 (Cth) was retroactive, and if so, whether it should be struck down under the Kable principle for interfering with judicial power. Additionally, the court considered whether the charge was duplicitous, if the complaint adequately specified the conduct relied on by the prosecution, and whether inadmissible opinion evidence was received.

The court held that section 66A was intended to be retroactive and is a valid enactment that does not interfere with judicial power. The court found that section 66A applies to completed proceedings and that its retroactive application did not cause prejudice or unfairness to the appellant. The charge was not duplicitous as it encompassed a single contravention leading to the accumulation of a financial advantage. The court also determined that the appellant was not prejudiced by the failure of the complaint to specify the conduct relied on by the prosecution and found no substance in the complaint about inadmissible opinion evidence.

The court dismissed the appeal against conviction and remitted the matter to the trial Magistrate for sentencing. The reasoning was grounded in the statutory interpretation of section 66A, the constitutional validity of the legislation, and the adequacy of the charge and complaint. The court concluded that the appeal did not present sufficient grounds to overturn the conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As noted above, it appears that at trial the defendant did not object to the complaint, make any submission about its adequacy or request further particulars. This would suggest that the defendant was well aware of the case alleged against him at trial. The defendant has not been substantially prejudiced, or even prejudiced, by the failure of the complaint to specify the matters now complained of. Opinion Evidence As earlier discussed, the prosecution called evidence of an officer employed by Centrelink, Mr De Reuver. A review of the transcript of evidence given in the trial discloses that objections were taken to some aspects of the evidence of Mr De Reuver. Records of Centrelink were tendered. When Mr De Reuver was questioned about these records, he drew on his experience of procedures and protocols and the meaning of entries in the records. On the appeal, counsel for the defendant identified specific evidence being given by Mr De Reuver and then submitted that inadmissible opinion evidence was received by the Court. The transcript reveals that no objection was taken at trial to any of the evidence identified by counsel for the defendant. The witness was cross-examined at some length on the records of Centrelink and the inferences to be drawn from entries in those records. At the outset of Mr De Reuver’s evidence, he addressed the history of his employment with Centrelink. That employment commenced in 2006 and at the time of trial he had held the position of fraud investigator for about two years. He outlined his involvement in the investigation of the defendant. He explained that in the course of that investigation, he accessed the defendant’s electronic file and printed records from that file. He explained that those records had been made by Centrelink in the course of its day to day operations. Mr De Reuver prepared a schedule which listed the payments that had been made to the defendant and the period in which those payments were made. Counsel for the defendant had no objection to the use of the schedule stating “[t]he primary information on which this document is based will be in evidence from other sources, from the banking record etcetera”. Mr De Reuver outlined in evidence the practices and procedures with respect to a claim for a Parenting Payment Partnered benefit. He produced copies of the standard form documents associated with such a claim. Mr De Reuver explained to the Court how such a claim would be made pursuant to the established practices and procedures of Centrelink. Interviews would be held with a person seeking a benefit and following this process a decision would be made by a regional decision maker. From the records held by Centrelink, Mr De Reuver informed the Court of the defendant’s application, his participation in the interview and the notification to the defendant of the success of his claim. Mr De Reuver explained that the practices and procedures of Centrelink involved the giving of advice to customers of the obligation to advise of a change of circumstances within 14 days. He outlined the practices and procedures that were available to enable such advice to be given. He outlined the way in which customers would be advised in writing of the obligations, and computerised versions of original letters sent to the defendant in accordance with these practices and procedures were tendered. These computerised versions confirm that written advice had been given by the defendant to notify of change of circumstances, including return to employment.

Decision

Reasons for decision

When properly understood, it is a complaint about evidentiary matters being raised for the first time on appeal. To my mind, there is no substance in this complaint. Conclusion The appeal against conviction is dismissed. The matter is remitted to the trial Magistrate for the sentencing of the defendant.

Ratio Decidendi

Legal Principle Established

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