Jovanovic v The Commonwealth Director of Public Prosecutions; Jovanovic v Police
[2012] SASC 194
•2 November 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOVANOVIC v THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS; JOVANOVIC v POLICE
[2012] SASC 194
Judgment of The Honourable Justice Gray
2 November 2012
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - RETROSPECTIVE OPERATION
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - VOLUNTARINESS
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - FINANCIAL TRANSACTION OFFENCES
Appellant lodged four appeals in respect of related matters - the appellant pleaded guilty to three counts of obtaining financial advantage contrary to section 135.2(1) of the Criminal Code (Cth) - sentenced to 15 months imprisonment, but released forthwith upon her recognisance to be of good behaviour for two years - the appellant pleaded guilty to obtaining a dishonest benefit contrary to section 139(a) of the Criminal Law Consolidation Act 1935 (SA) - the appellant admitted that this conduct caused her to breach her recognisance - sentenced to eight months imprisonment in respect of the State offence - that sentence was to be served concurrently with a sentence of 15 months imprisonment the subject of the breached recognisance - the appellant appealed against convictions and sentence in relation to the Commonwealth offences and sentence in relation to the State offence - the appellant also appealed the order made on 1 September 2011 revoking the order releasing the appellant on recognisance and the further order made on 1 September 2011 directing that the appellant serve the term of imprisonment of 15 months imposed on 3 August 2007 - these reasons for judgment only address the conviction appeals and the consequences of the conclusions in respect of those appeals.
Whether the convictions for the Commonwealth offences were bad in law as the appellant's conduct at the time did not give rise to an offence - whether the appellant's failure to act was a voluntary act - whether section 66A of the Social Security (Administration) Act 1999 (Cth) was a valid enactment - whether the retroactive application of section 66A caused relevant prejudice or unfairness to the appellant so as to warrant a stay of proceedings - whether the complaint charging the Commonwealth offences was duplicitous and lacked particularity - whether the Commonwealth had engaged in an abuse of process.
Held: Section 66A of the Social Security (Administration) Act has retroactive application and was a valid enactment - the appellant’s failure to act was a voluntary act having regard to the retroactive operation of section 66A - the retroactive application of section 66A did not cause relevant prejudice or unfairness to the appellant so as to warrant a stay of proceedings - count three of the Commonwealth complaint was not duplicitous and did not lack particularity - the Commonwealth did not engage in an abuse of process.
The appellant’s pleas of guilty to counts 1 and 2 of the Commonwealth complaint were entered with the Magistrate, prosecution and defence all under a misapprehension as to the state of the law - the appellant had not had the opportunity of entering a plea to counts 1 and 2 on the complaint with a full understanding of the elements of the offence - the appellant granted permission to withdraw her pleas on counts 1 and 2.
Appeals against the convictions recorded in respect of counts 1 and 2 of the Commonwealth complaint allowed - the appellant permitted to withdraw her pleas of guilty in respect of counts 1 and 2 and the proceeding remitted for rehearing in respect of those counts - appeal against the conviction recorded in respect of count 3 of the Commonwealth complaint dismissed - appeal against the sentence imposed in respect of the three Commonwealth offences allowed - the appellant to be resentenced in the Magistrates Court in respect of count 3 - appeal against the order made on 1 September 2011 revoking the order made on 3 August 2007 releasing the appellant on recognisance allowed - appeal against the further order made on 1 September 2011 ordering the appellant to be imprisoned allowed - the proceeding remitted for reconsideration - appeal against the sentence imposed for the State offending set aside - the appellant to be resentenced for that offending in the Magistrates Court.
Criminal Code (Cth) s 4.2, s 4.3 and s 135.2; Criminal Law Consolidation Act 1935 (SA) s 139; Crimes Act 1914 (Cth) s 4K and s 20; Social Security (Administration) Act 1999 (Cth) s 66A; Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) Sch 1, referred to.
Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243; Jones v Commonwealth Services Delivery Agency [2012] SASC 106; Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595; Kilbride v Lake [1962] NZLR 590; Walsh v Tattersall (1996) 188 CLR 77, considered.
JOVANOVIC v THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS; JOVANOVIC v POLICE
[2012] SASC 194Magistrates Appeal
GRAY J.
The defendant and appellant, Maya Jovanovic, has lodged four appeals in respect of related matters.
On 19 January 2007, the defendant was charged on complaint with three counts of obtaining financial advantage contrary to section 135.2(1) of the Criminal Code (Cth). Counts 1 and 2 related to a benefit known as a Parenting Payment Single. Those counts were in the following terms:
1. Between the 16th day of May 2003 and the 24th day of September 2004 at Broadway in the state of New South Wales or another place obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency trading as ‘Centrelink’, knowing or believing that she was not eligible to receive that financial advantage; contrary to section 135.2(1) of the Criminal Code (Cth).
Particulars:
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Single, because of her income from and employment with Friendly Society Medical Association.
2. Between the 1st day of October 2004 and the 5th day of November 2004 at Broadway in the state of New South Wales and other places engaged in conduct, and as a result of that conduct obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency trading as ‘Centrelink’, knowing or believing that she was not eligible to receive that financial advantage; contrary to section 135.2(1) of the Criminal Code (Cth).
Particulars:
The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Single, because of her income from and employment with Friendly Society Medical Association.
Count 3 related to a benefit known as a “Newstart Allowance” and was in the following terms:
Between the 15th day of May 2006 and the 30th day of July 2006 at Broadway in the state of New South Wales and other places engaged in conduct, and as a result of that conduct obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency trading as ‘Centrelink’, knowing or believing that she was not eligible to receive that financial advantage; contrary to section 135.2(1) of the Criminal Code (Cth).
Particulars:
The defendant was not entitled to the said financial advantage, namely part payment of Newstart Allowance, because of her income from and employment with Trims Finance Company.
Other orders sought (forfeiture, compensation, additional penalty, destruction or the like – Rule 15.03)
On 8 June 2007, the defendant pleaded guilty to all three counts.[1] On 3 August 2007, she was convicted on each count. One sentence was imposed in respect of all offending – a term of imprisonment of 15 months. However, the Magistrate ordered that the defendant be released forthwith upon her recognisance to be of good behaviour for two years.[2]
[1] Referred to as the “Commonwealth offences”.
[2] At times referred to as the “Commonwealth bond”.
Between 26 December 2007 and 6 February 2009, the defendant engaged in dishonest conduct by deceiving her employer, Trims Finance Company Pty Ltd. On 19 January 2010, that conduct was the subject of an Information charging the defendant with the offence of obtaining a dishonest benefit contrary to section 139(a) of the Criminal Law Consolidation Act 1935 (SA). The Information was in the following terms:
1. Between the 26th day of December 2007 and the 6th day of FEBRUARY 2009 at Adelaide in the said State, deceived TRIMS FINANCE COMPANY PROPRIETARY LIMITED and, by doing so dishonestly benefited herself the nature of the benefit being a financial advantage of about $13,818.06
Section 139(a) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.
On 23 March 2010, the defendant pleaded guilty before a Magistrate. On 1 September 2011, she was convicted and sentenced to a term of imprisonment of eight months.[3] It was ordered that the term of imprisonment commence forthwith and it was noted that the sentence was to be served concurrently with the sentence of imprisonment imposed on the breach of the Commonwealth bond. This latter order, to be discussed below, was made by the same Magistrate on the same occasion.
[3] Referred to as the “State offence”.
The defendant’s dishonest conduct the subject of the State offence was said by the Commonwealth to be conduct by the defendant in breach of the Commonwealth bond entered into on 3 August 2007. As a consequence, on 5 February 2010, the defendant was charged on Information as follows:
On the 3rd day of August 2007 in the Magistrates Court in the State of South Australia, personally came before his Honour Mr Harris, a Stipendiary Magistrate sitting as a Court of Summary Jurisdiction, charged with three counts of ‘Obtain Financial Advantage’; contrary to section 135.2(1) of the Criminal Code (Cth).
One penalty was imposed pursuant to section 4K of the Crimes Act 1914 (Cth). The defendant was convicted and sentenced to 15 months imprisonment, but pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), was discharged upon entering into a recognisance release order in the sum of $1,000.00 to be of good behaviour for two years.
AND THE DEFENDANT HAS, WITHOUT REASONABLE CAUSE OR EXCUSE, FAILED TO OBSERVE A CONDITION OF HER RECOGNISANCE IN THAT SHE FAILED TO BE OF GOOD BEHAVIOUR BY:
1.Between the 26th day of December 2007 and the 6th day of February 2009 at Adelaide in the said State, deceived Trims Finance Company Proprietary Limited and, by doing so dishonestly benefited herself, the nature of the benefit being a financial advantage of about $13,818.06.
Section 139(a) of the Criminal Law Consolidation Act 1935 (SA).
BECAUSE OF THIS ALLEGED OFFENCE THE DEFENDANT IS IN BREACH OF THE RECOGNISANCE IMPOSED ON HER IN THE MAGISTRATES COURT BY HIS HONOUR MR HARRIS SM ON 3 AUGUST 2007.
On 14 May 2010, the defendant admitted the breach of recognisance. On 1 September 2011, the Magistrate found the breach of the Commonwealth bond proved, revoked the suspended sentence recognisance and ordered that the defendant be imprisoned for 15 months commencing forthwith. The Magistrate directed that the sentence of imprisonment of 15 months was to be served concurrently with the sentence of imprisonment of eight months imposed in respect of the offence against the State offending, being the sentence discussed above.
The defendant lodged appeals in respect of the Commonwealth offending. Initially, an appeal was lodged complaining about the sentence of imprisonment imposed in 2007. Later, appeals were lodged complaining about the convictions recorded in 2007 in respect of the Commonwealth offending. Further, complaint was made about the order made on 1 September 2011 revoking the order of 3 August 2007 releasing the defendant on recognisance and complaining about the further order made on 1 September 2011 directing that the defendant serve the term of imprisonment imposed on 3 August 2007.
The appeal against conviction lodged on 18 November 2011 complained of the convictions recorded in 2007 and in substance, asserted that each conviction was bad in law as the defendant’s conduct at the time did not give rise to an offence. Attention was drawn to the decisions of the Full Court of this State and of the High Court in the matter of Poniatowska.[4]
[4] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
By an amended notice of appeal, it was also contended that the complaint charging the three Commonwealth offences was duplicitous in that “the counts charged encompassed multiple contraventions (i.e. the obtaining of multiple [Parenting Payment Single] benefits or financial advantages)”. Further, it was contended that:
The complaint was deficient in that it failed to identify the transaction, act or omission on which liability was said to depend, and in particular:
a.Did not identify which particular financial advantage(s) was relied upon; and
b.Did not identify the act(s) which it was alleged that the appellant omitted to perform and/or when it was required to be performed.
Neither of the amended grounds concerned issues that appeared to have been addressed at any earlier time. There was no affidavit evidence from the defendant suggesting that the she had been in any way misled or disadvantaged by the terms of the complaint in these or any other respects.
A notice of appeal was lodged on 18 September 2011 complaining of the order made on 3 August 2007 revoking the suspended sentence.
A further notice of appeal was lodged on 14 September 2011 in respect of the Commonwealth offending complaining about the sentence imposed.
A fourth notice of appeal was lodged in respect of the sentence imposed regarding the State offending.
In my judgment in Jones v Commonwealth Services Delivery Agency,[5] similar issues concerning the appeals with respect to the convictions for offending against the Criminal Code (Cth) were addressed. There was an overlap of counsel appearing for the appellants and the same counsel appeared for the Commonwealth. The parties invited the Court to treat the arguments as to law raised in the Jones v Commonwealth Services Delivery Agency[6] proceeding as being incorporated as arguments in the present proceedings. I agreed to do so.
[5] Jones v Commonwealth Services Delivery Agency [2012] SASC 106.
[6] Jones v Commonwealth Services Delivery Agency [2012] SASC 106.
At the time of the defendant’s pleas of guilty to counts 1 and 2 of the Commonwealth complaint, the facts giving rise to those offences were not in issue. The defendant was in receipt of a Parenting Payment Single benefit. The conduct relevant to both counts 1 and 2 involved omissions to perform an act as the defendant had failed to advise Centrelink of income that the defendant received from her employment with the Friendly Society Medical Association, being an amount of $42,721.71. The offending comprising count 1 occurred between 16 May 2003 and 24 September 2004. The offending comprising count 2 occurred between 1 October 2004 and 5 November 2004.
At the time of the defendant’s pleas of guilty to count 3 of the Commonwealth complaint, the facts giving rise to the offence were not in issue. The defendant was in receipt of a Newstart Allowance and was also employed by Trims Finance Company Pty Ltd during the period the subject of the count, namely between 15 May 2006 and 30 July 2006. The defendant was required to lodge fortnightly forms to declare any income earned from employment to Centrelink. For the first three fortnights, the defendant declared no income and for the remaining three fortnights, she under-declared her income. Information from the employer indicated that the defendant earned $8,744.22 gross during the period the subject of the charge. She declared earnings of $683.25 to Centrelink. The overpayment that she received in respect of this conduct totalled $2,544.34.
On 3 August 2007, the defendant was convicted on each of the three counts and sentenced to the one term of imprisonment of 15 months, to be released forthwith upon her recognisance to be of good behaviour for two years.
On 19 January 2010, the defendant was charged that between 26 December 2007 and 6 February 2009, she deceived Trims Finance Company Pty Ltd and by so doing, dishonestly benefited herself contrary to section 139(a) of the Criminal Law Consolidation Act. The nature of the benefit being a financial advantage of about $13,818.06.
On 5 February 2010, the defendant was also charged with breaching the above referred to recognisance entered into on 3 August 2007. It was alleged that the deceit of Trims Finance Company committed between 26 December 2007 and 6 February 2009 was the conduct that led to the breach of her recognisance.
On 23 March 2010, the defendant pleaded guilty to the offence of deception contrary to section 139(a) of the Criminal Law Consolidation Act. On 14 May 2010, the defendant admitted that she had breached her recognisance entered into on 3 August 2007.
On 1 September 2011, the defendant was ordered to serve the sentence of 15 months imprisonment imposed on 3 August 2007 as a consequence of her breach of recognisance. On the same date, the defendant was sentenced to eight months imprisonment for the State offence of deception. This was ordered to be served concurrently with her 15 months imprisonment for the Commonwealth offences. The Court ordered that the sentences of imprisonment commence forthwith. On 16 September 2011, the defendant was granted bail pending appeal.
The defendant has appealed against her convictions of the Commonwealth offences resulting from pleas of guilty. She has also appealed against the sentence imposed for those offences and the sentence imposed for the State offence. Further, the appellant has appealed against the order made on 1 September 2011 revoking the order made on 3 August 2007 releasing the defendant on recognizance and the further order made on 1 September 2011 ordering the defendant to be imprisoned. These reasons only address the conviction appeals and the consequences of the conclusions that I have reached.
The Appeal Concerning Convictions on Counts 1 and 2
The appeal in respect of counts 1 and 2 concerned convictions for offences of obtaining financial advantage contrary to section 135.2(1) of the Criminal Code. The prosecution, with respect to these two counts, relied on conduct, namely an omission to perform an act. As earlier mentioned, the defendant had failed to advise Centrelink of any of the income she received from her employment with the Friendly Society Medical Association. Count 1 concerned the period 16 May 2003 to 24 September 2004. Count 2 concerned the period 1 October to 5 November 2004. At the time of the entry of the defendant’s pleas of guilty, both the prosecution and the defence proceeded on the basis that the defendant was under an obligation to notify Centrelink of other income received and her omission to do so was relevant conduct for the purposes of making out the charged offence.
On 2 August 2010, the Full Court of the Supreme Court of South Australia delivered judgment in the matter of Poniatowska.[7] By majority, the Court determined that an omission to perform an act was not a physical element of a section 135.2 offence within the meaning of section 4.3(a) of the Criminal Code.[8] The Court reasoned:[9]
… In light of the definition of “engage in conduct” in s 4.1 of the Code and the stipulation in s 135.2 that “engages in conduct” constitutes a physical element of the offence created by that section, it must be acknowledged that an offence under this provision can be committed by means of an omission.
However, it is well established that there can be no criminal liability for an omission unless the alleged conduct constitutes a failure to perform a legal obligation. …
…
As previously stated, it is our view that an omission to perform an act can constitute a physical element of an offence under s 135.2. However, the definition of “engage in conduct” which includes an omission to perform an act does not overcome the requirement that the conduct charged must be an omission to carry out an obligation imposed by law. It is necessary to identify a relevant duty or obligation arising under the general law or statute before enquiring whether there has been a breach by way of omission.
…
In summary, we are of the view that s 135.2 does not define any duty or obligation relevant to an offence committed by way of an omission. The DPP does not rely on any notice issued to the appellant for the purpose of establishing such a duty; nor was it suggested that the duty was to be found elsewhere in the Administration Act. The approach of the Administration Act is to provide for the issuing of notices by the department requiring information and to impose a penalty punishable by imprisonment for a failure to comply with such notices. The Administration Act does not create a separate “stand alone” obligation. We have explained why we consider that s 135.2 does not impose a relevant obligation.
It follows that the appellant could not, in law, have been convicted of the offences charged in the complaint and this Court should set aside the convictions which were recorded following the pleas of guilty.[10]
The Court noted that the Director of Public Prosecutions did not rely upon any statutory duty to perform an act which would have engaged section 4.3(b) of the Criminal Code.
[7] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578.
[8] Section 4.3 of the Criminal Code (Cth) is in the following terms:
An omission to perform an act can only be a physical element if:
(a) the law creating the offence makes it so; or
(b)the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.
[9] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578, [12]-[13], [16], [38]-[39].
[10] R v Liberti (1991) 55 A Crim R 120 at 121-122.
On 26 October 2011, the High Court granted permission to appeal to the Director against the decision of the Full Court, but dismissed the appeal. The majority agreed with the decision of the Full Court concluding that the Criminal Code incorporates the general legal principle that criminal liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform. Applying that to section 135.2(1), the majority observed:[11]
… Section 135.2(1)(a) allows that the offence is one that may be committed by the omission to perform an act but the provision does not proscribe the omission of any specified act. The law creating the offence does not make the omission of an act a physical element of the offence within the meaning of s 4.3(a).
[Emphasis in original.]
[11] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243, [37].
On the hearing of the appeal in the within proceedings, the defendant relied on the decisions of the Full Court of this Court and of the High Court in Poniatowska,[12] contending that counts 1 and 2 on the complaint disclosed no offence known to the law. It was said that there could be no liability under section 135.2 of the Criminal Code for an omission to act unless there was an obligation imposed by a law of the Commonwealth that required the performance of a specific act at a particular time and there was evidence that the defendant failed to perform that specific act in circumstances where all of the physical and fault elements necessary for proof of section 135.2 were satisfied. The defendant further contended that the conduct alleged at first instance was conduct that was an omission to perform an act. There was no act that the defendant was obliged to perform within a prescribed time imposed by the law of the Commonwealth. Therefore, it was said that, in each instance, the defendant was prosecuted for non-existent offences and is entitled to an acquittal or a dismissal of the charges.
[12] Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
The Commonwealth Director contended that section 66A of the Social Security (Administration) Act 1999 (Cth), which was introduced prior to the delivery of the High Court judgment in Poniatowska,[13] as a matter of law makes an omission to perform an act a physical element of a section 135.2(1) offence concerning social security payments within the meaning of section 4.3(b) of the Criminal Code. The Director further contended that the operation of section 66A was retroactive so as to be operative throughout the periods of the defendant’s alleged offending.
[13] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
Immediately preceding the hearing of the appeals in the present proceedings, I heard argument in the matter of Jones v Commonwealth Services Delivery Agency.[14] In that proceeding, comparable questions arose as to the application of the decisions in Poniatowska[15] and the impact of section 66A of the Social Security (Administration) Act. Both parties in the within proceedings adopted the submissions made in Jones v Commonwealth Services Delivery Agency.[16] Both made further submissions in the present proceedings.
[14] Jones v Commonwealth Services Delivery Agency [2012] SASC 106.
[15] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
[16] Jones v Commonwealth Services Delivery Agency [2012] SASC 106.
Section 66A relevantly provides:
Person who has made a claim
(1) If:
(a) a person has made a claim for:
(i) a social security payment; or
(ii) a concession card; and
(b) the claim has been granted or has not been determined; and
(c)an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Person receiving a social security payment or holding a concession card
(2) If:
(a) either:
(i)a social security payment (other than utilities allowance or seniors supplement) is being paid to a person; or
(ii) a person holds a concession card; and
(b)an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Person who has received a social security payment or held a concession card
(3) If:
(a) either:
(i)a person is not receiving a social security payment but a social security payment (other than utilities allowance or seniors supplement) has at any time been paid to the person; or
(ii)a person does not hold a concession card but has at any time held such a card; and
(b)an event or change of circumstances occurs that might have affected the payment of that social security payment or the person’s qualification for the concession card;
the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Interaction with notices under this Subdivision
(4) If:
(a)a person is subject to a requirement under subsection (1), (2) or (3) in relation to an event or change of circumstances; and
(b)the person is given, or purportedly given, a notice under this Subdivision in relation to the same event or change of circumstances; and
(c)the person complies with the notice to the extent that it relates to that event or change;
the person is taken to have also complied with that requirement within the period referred to in that subsection.
(5) Subsection (4) does not apply if the notice is given after the end of the period referred to in subsection (1), (2) or (3).
(6) This section does not limit the power of the Secretary to give a person a notice under this Subdivision.
Section 66A sets out a statutory duty to perform an act. It places a requirement upon a person to inform Centrelink of the occurrence of an event or change of circumstances that might affect the receipt of that person’s social security payment. Section 3 of Schedule 1 of the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) provides that section 66A applies in relation to an event or change of circumstances that occurs on or after 20 March 2000.
In Jones v Commonwealth Services Delivery Agency, I reached the conclusion that section 66A of the Social Security (Administration) Act has retroactive application.[17] The retroactivity extends to matters occurring on or after 20 March 2000. In that decision, I set out a detailed review of the legislation and of extrinsic materials relevant to its interpretation. On the question of the extent of retroactivity, I reviewed relevant legal authority, including the recent High Court decision of Australian Education Union v General Manager of Fair Work Australia & Ors.[18] By way of reference, I incorporate in these reasons that detailed review of legislation and legal authority.[19]
[17] Jones v Commonwealth Services Delivery Agency [2012] SASC 106, [39].
[18] Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 86 ALJR 595.
[19] Jones v Commonwealth Services Delivery Agency [2012] SASC 106, [22]-[26], [29]-[47].
I also reached the conclusion in Jones v Commonwealth Services Delivery Agency that section 66A did not usurp Commonwealth judicial power.[20] Section 66A is a valid enactment of the Commonwealth Parliament. It does not impermissibly interfere with, intrude into or usurp Commonwealth judicial power. Again, I adopt by way of reference the relevant reasons in my decision in Jones v Commonwealth Services Delivery Agency.[21]
[20] Jones v Commonwealth Services Delivery Agency [2012] SASC 106, [40].
[21] Jones v Commonwealth Services Delivery Agency [2012] SASC 106, [29]-[47].
Voluntariness
Section 4.2 of the Criminal Code addresses voluntary acts and relevantly provides:
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3) The following are examples of conduct that is not voluntary:
(a) a spasm, convulsion or other unwilled bodily movement;
(b) an act performed during sleep or unconsciousness;
(c)an act performed during impaired consciousness depriving the person of the will to act.
(4) An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
…
The defendant submitted that there is a difference between being unable to choose or to choose freely and the absence of choice. It was contended that it is the inability to exercise normal control over choices made, not the absence of choice, which results in causative responsibility. It was said that voluntariness includes the capacity for control and that section 66A does not impose a general obligation without a timeframe and without a connection to certain specified events. It was further said that if the obligation under section 66A did not exist at the time that the defendant is alleged to have failed to perform a specific act within a specific timeframe, there was an “absence of choice” to comply with it; that is, there was no capacity to comply with the obligation in its specific terms.
The Court’s attention was drawn to the decision of Woodhouse J in Kilbride v Lake and in particular, to the following observations:[22]
It is, of course, difficult to demonstrate that an omission to act was not, in a causal sense, an omission which produced some event. All omissions result from inactivity, and in this matter of the warrant the appellant was necessarily inactive. But, in my opinion, it is a cardinal principle that, although apart from the mental element of intention or knowledge of the circumstances, a person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him. If this condition is absent, any act or omission must be involuntary, or unconscious, or unrelated to the forbidden event in any causal sense regarded by the law as involving responsibility. … Naturally the condition that there must be freedom to take one course or another involves free and conscious exercise of will in the case of an act, or the opportunity to choose to behave differently in the case of omissions. …
[22] Kilbride v Lake [1962] NZLR 590, 593.
It was submitted that the specific act that the defendant was required to perform under section 66A was not an act that the defendant was physically capable of performing at the time of the alleged commission of the offence and it was not within the defendant’s conduct, knowledge or control that there was an obligation to notify Centrelink within 14 days of a change of relevant circumstances resulting in an advantage to which she was not entitled where the obligation and timeframe did not exist and where the basis upon which the failure to perform a particular act caused an illegal entitlement is not readily apparent. In conclusion, it was submitted that there was no voluntary omission to perform a specified act within the prescribed time upon the happening of a specified event. There was an absence of choice in respect of any of these requirements and no capacity to comply.
It was said that if section 66A did apply to the defendant retrospectively, the defendant did not have the capacity to perform the act required as a result of the obligation imposed by section 66A because it did not exist at the relevant time. The defendant, it was claimed, had no capacity to make a decision not to comply with a non-existent specific obligation, that is, one arising upon the happening of certain events.
In my view, the defendant’s contentions in respect of the issue of voluntariness confuse fact and law. The defendant admitted that she failed to inform Centrelink of her income during the specified period. That is a matter of fact. As a matter of law, namely the decision in Poniatowska,[23] that factual failure to inform could not amount to a physical element of the section 135.2(1) offence within the meaning of section 4.3(a) of the Criminal Code as there was no legal obligation on the defendant to do so. It also could not amount to a physical element of the section 135.2(1) offence within the meaning of section 4.3(b) of the Criminal Code as there was no statutory duty as that section requires. However, that does not detract from the fact that the defendant failed to inform Centrelink. The defendant has admitted that she knew or believed that she was not eligible to receive the financial advantage that she obtained. Her failure to inform Centrelink was a voluntary act having regard to the retroactive operation of section 66A.
[23] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
Conclusion Re Counts 1 and 2
The unusual feature of the present proceedings is that the pleas of guilty were entered with the Magistrate, the prosecution and the defence all under a misapprehension as to the state of the law. All had considered that the elements of the offence had been made out when, at the time of the pleas, that was not the case. As is evident from my reasons in Jones v Commonwealth Services Agency,[24] the law has been amended retroactively to create the obligation on the defendant to have informed Centrelink of her change of circumstances.
[24] Jones v Commonwealth Services Delivery Agency [2012] SASC 106.
In my view, the defendant has not had the opportunity of entering a plea to counts 1 and 2 on the compliant with a full understanding of the elements of the offence. She should have that opportunity. Accordingly, the defendant should be given permission to withdraw her plea to counts 1 and 2 and the convictions entered in consequence of that plea should be set aside.
Prejudice or Unfairness
A further question arose as to whether the retroactive application of section 66A to this appeal against conviction causes relevant prejudice or unfairness to the defendant so as to warrant a stay of proceedings.
The amendment does not affect the manner in which the proceeding in the Magistrates Court was conducted. That hearing proceeded on the basis that the defendant was required to inform Centrelink of her return to paid employment. The defendant acknowledged, through her pleas, that she was obliged to give the relevant information to Centrelink. There was no dispute or contest on this topic. There was no dispute of fact.
At the time of the hearing, the parties and the Magistrate incorrectly assumed that a failure to inform Centrelink could be a legal element of the section 135.2(1) offence. The pleas were accepted on this basis to counts 1 and 2. The effect of the retroactive application of section 66A is to make that incorrect assumption correct.
Having regard to the foregoing, I do not consider that any relevant prejudice or unfairness has arisen so as to cause the Court to stay the proceedings.
The Appeal Concerning Conviction on Count 3
Earlier in these reasons, I set out the terms of count 3 of the Commonwealth complaint and noted the essential facts that had been agreed at the time of the defendant’s plea of guilty. As earlier noted, the allegation made by the complainant was that the defendant had made dishonest statements relevant to her receipt of a Newstart Allowance. The prosecution case did not rely on an omission to perform a legal duty. The prosecution case concerned dishonest statements made by the defendant. These facts were not in dispute. Each of the elements of the offence was admitted by the defendant through her plea of guilty.
On the hearing of the appeal, it was accepted that the defendant was under a duty to lodge returns disclosing income received and that she had not done so. No basis in law or fact was identified by the defendant to support her appeal in respect of this conviction. On the hearing of the appeal, no submission was made in support of the appeal against this conviction on the ground that no duty arose in respect of providing Centrelink with information in regard to income earned from employment.[25]
[25] The transcript relevantly provides:
[Counsel for the defendant]: Count 3 it is merely the duplicitous point which I don’t intend to address further.
Issues of Duplicity and Lack of Particularity
As the defendant is to be retried on both counts 1 and 2, issues of duplicity and complaints concerning lack of particularity are best left to be addressed at the rehearing. This will allow the complainant to consider these issues and seek such amendments as may be considered appropriate.
However, in regard to count 3 of the Commonwealth complaint, it is appropriate to address these issues. As earlier noted, count 3 concerned a course of conduct engaged by the defendant. She submitted six fortnightly forms over the relevant period, being 15 May 2006 to 30 July 2006. On the first three forms, she completed no income and on the last three forms, she under-declared her income. It was the prosecution case that the offence was committed by positive acts of dishonesty by the defendant in failing to disclose income that she was receiving. It was not the prosecution case that it was an offence committed by omission. The question arises, however, as to whether each dishonest declaration of income created a separate offence.
In Walsh v Tattersall,[26] the High Court considered duplicity. Gaudron, Gummow and Kirby JJ formed the majority of the Court in allowing the appeal, having concluded that the charges laid under the particular statute were duplicitous. Dawson and Toohey JJ dissented.
[26] Walsh v Tattersall (1996) 188 CLR 77.
Dawson and Toohey JJ identified the relevant principles in unexceptional terms as follows:[27]
[27] Walsh v Tattersall (1996) 188 CLR 77, 84-85.
The proscription against duplicity is succinctly stated by Archbold:
The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply ... Duplicity in a count is a matter of form, not evidence.
The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield. For this reason S v The Queen is, in our view, not a case of duplicity.
The proscription against duplicity was referred to by Lord Diplock in Director of Public Prosecutions v Merriman though that case concerned a joint indictment of wounding with intent to do grievous bodily harm, against the respondent and his brother. The question was whether the respondent could be convicted if the jury found he had independently committed the offence the subject of the joint charge. His Lordship said:
The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
[Footnotes omitted.]
The form of the complaint in the present proceeding does raise the question of possible duplicity. It is to be accepted that the offence charged relates to a number of separate acts. However, they are a number of acts of a similar nature committed by the defendant with the common purpose of dishonestly obtaining payments from the Commonwealth by way of Newstart Allowance and they are connected in the sense of being performed in an ongoing course of similar conduct. They can be fairly regarded as forming part of the same criminal enterprise. Accordingly, in my view, they are not duplicitous.
In Walsh v Tattersall, Kirby J, having discussed eight principles governing duplicity in criminal courts, added the following caveat as the ninth principle:[28]
A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction.
[Footnotes omitted.]
[28] Walsh v Tattersall (1996) 188 CLR 77, 110.
It is plain that the terms of count 3 caused no embarrassment to the defendant at the time of her plea of guilty. There is no suggestion that she did not understand the nature and extent of the charge. Her plea of guilty accepted and acknowledged the correctness of the averments, namely that she had, on six consecutive occasions, engaged in dishonest acts of a similar nature designed to have the Commonwealth maintain regular payments for the Newstart Allowance.
It was only on the appeal that complaint was first made with respect to duplicity. No evidence was proffered to suggest that the defendant was in any way misled or disadvantaged by the terms of the complaint. The defendant’s submissions did no more than suggest technical and theoretical difficulties that may have arisen in the event of there being a trial.
In any event, the above referred to observations of Kirby J make it plain that even in the event of count 3 being duplicitous, an obligation to dismiss the complaint would not arise. On the defence case, the defect is one of patent duplicity. Had some complaint been made, the complainant could then have addressed the issue by way of amendment or election. Even if the complaint is duplicitous, it has not led to any injustice in the present case.
The allegation of a lack of particularity concerning count 3 was first made on the appeal. It appears that there was no application for particulars at trial. No affidavit evidence established any prejudice. None was identified during argument. There is no substance to this complaint.
A Further Matter - Abuse of Process
The defendant pointed out that the listing of the hearing of the present appeal had been stood over to await the High Court decision in Poniatowska.[29] The defendant further pointed out that that while the High Court decision was pending, section 66A was enacted with retroactive effect. It was claimed that the Commonwealth had engaged in an abuse of process in that it had unfairly taken advantage of the delay to raise before this Court the retroactive effect of section 66A.
[29] Director of Public Prosecutions (Cth) v Poniatowska (2011) 85 ALJR 1243.
In my view, there is no substance to this complaint. The defendant did not oppose the hearing of the appeal being stood over pending the High Court decision. The Commonwealth Parliament enacted section 66A and did so with retroactive effect. All that the complainant has done is to seek to apply the law. I do not consider this to involve any unfairness or abuse of process.
Consequential Orders
Although this Court is yet to hear and determine the sentence appeals, the setting aside of the convictions on counts 1 and 2 of the Commonwealth offence requires a reconsideration of the breach of recognisance proceeding and sentences to be imposed in respect of the other matters.
As the one sentence of imprisonment was imposed in respect of the three Commonwealth offences, it is necessary for that sentence to be set aside and for the proceeding in respect of count 3 to be remitted so that the defendant may be resentenced.
As the suspended sentence concerned the one sentence of imprisonment imposed for the three Commonwealth offences and as that sentence is to be set aside, it follows that the order revoking the recognisance entered into on 3 August 2007 should be set aside and that matter remitted for reconsideration.
As the sentence for the State offence proceeded on the basis that the defendant’s criminal antecedents included her convictions on counts 1 and 2 of the Commonwealth offence, it follows that the sentence imposed for the State offending should be set aside and the proceeding remitted for resentencing of the defendant in respect of the State offending.
Conclusion
For the above reasons, I propose making the following orders:
-The appeals against the convictions recorded in respect of counts 1 and 2 of the Commonwealth complaint are allowed. Permission is granted to the defendant to withdraw her pleas of guilty to counts 1 and 2. The proceeding is remitted to the Magistrates Court for rehearing in respect of counts 1 and 2.
-The appeal against conviction in respect of count 3 of the Commonwealth complaint is dismissed.
-The appeal against the sentence imposed in respect of the three Commonwealth offences is allowed. The proceeding is remitted to the Magistrates Court for the purpose of the defendant being resentenced in respect of count 3 of the Commonwealth complaint.
-The appeal against the order made on 1 September 2011 revoking the order made on 3 August 2007 releasing the defendant on recognisance is allowed. The appeal against the further order made on 1 September 2011 ordering the defendant to be imprisoned is allowed. The proceeding is remitted to the Magistrates Court for reconsideration.
-The appeal against the sentence imposed for the State offending is set aside. The proceeding is remitted to the Magistrates Court for the purpose of the defendant being resentenced.
As my orders in respect of the sentence appeals are a consequence of my conclusions in respect of the complaints against the convictions for counts 1 and 2 of the Commonwealth offending, it is appropriate that I hear the parties as to my proposed orders.
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