Kartawidjaja v Rowe
[2016] VSC 176
•21 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 01879
| ANNI KARTAWIDJAJA | Appellant |
| v | |
| DONNA ROWE | Respondent |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2015 |
DATE OF JUDGMENT: | 21 April 2016 |
CASE MAY BE CITED AS: | Kartawidjaja v Rowe |
MEDIUM NEUTRAL CITATION: | [2016] VSC 176 |
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CRIMINAL PROCEDURE – Appeal of Final Order of a Magistrate - Criminal Procedure Act 2009 (Vic) s 272 – Appellant charged with multiple breaches of the Migration Act 1958 (Cth) s 245AC – Multiple charges - Non-citizen workers allowed to work beyond hours permitted by their visa –Attributional liability of a corporate entity under the Migration Act 1958 (Cth) s 493 – Accessorial liability – Criminal Procedure Act 1995 (Cth) s 11.2 – Aiding and abetting – Whether or not principal offender needed to be identified – Whether or not individual consideration was given to each charge.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr N. Papas QC | Access Law Lawyers |
| For the Respondent | Mr L. Crowley | Commonwealth Office of Public Prosecutions |
HIS HONOUR:
Introduction
In the Magistrates’ Court at Melbourne, Anni Kartawidjaja was charged with 111 breaches of s 245AC of the Migration Act 1958 (Cth) (‘theAc’t ). In short, she was alleged to have aided and abetted a principal offender in employing 21 identified workers who were said to be working in breach of a work related visa condition. The workers were all international students. A condition of each student’s visa was that, during term time, they work no more than 20 hours per week. It was the prosecution case that, over the various periods specified in the 111 charges, the student worker the subject of each charge worked more than 20 hours per week. Her Honour found each charge proven, convicted the appellant, and fined her $75,000.
It is common ground that the principal offender in respect of each charge was the employer of the relevant student for the work period specified by the particular charge.[1] The students were employed at one or more of about 12 Nando’s restaurants (‘theadosresauran’stt ’nN ) and/or one or more of about two or three Chaddy Mart stores (teChadyMarttores’s d h‘).[2] The prosecution contended, both at the Magistrates’ Court and at this appeal proceeding, that in many cases the principal offender could not be precisely identified, but was one of a defined group of 17 corporate entities,[3] said to form part of an ‘amorphous corporate structure’.
This appeal
[1]Section 245AC of the Migration Act 1958 (Cth) makes it an offence to allow or continue to allow a lawful non-citizen to work in breach of a work-related visa condition.
[2]The exhibit ‘AK-8’, annexed to the affidavit of Anni Kartawidjaja sworn 21 April 2015, is a reproduction of a prosecution document produced for the Magistrates’ Court. The document lists the stores worked at in relation to the original 140 charges alleged (111 of which were ultimately prosecuted) at the Magistrates’ Court. Considering the 111 charges that were the subject of the Magistrates’ Court prosecution and this appeal, the identified stores were as follows: Nandos Richmond, Nandos Heatherton, Nandoes Narre Warren, Nandos Chadstone, Nandos Warrigal, Nandos Clayton, Nandos Braeside, Nandos Wareca, Nandos Springvale, Nandos Rusden, Nandos Ferntree Gully, Chaddy Mart Chadstone, Chaddy Mart Burwood. A number of charges include store name ‘Chaddy Mart 1’. Some charges are identified only in relation to a location but not a store name or type (eg ‘Chadstone’), and others state that precise stores could not be identified.
[3]Referred to in the Reasons for Decision of Magistrate MacCallum, Department of Immigration and Citizenship v Anni Katawidjaja [2015] VMC 44 (3 February 2015), (‘Magistrate’s Reasons’) as ‘Relevant Corporate Entities’. I shall adopt this term.
This appeal is brought pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic). That section provides that a party to a criminal proceeding in the Magistrates’ Court may appeal from a final order to this Court ‘on a question of law’. In this case, the appellant’s Notice of Appeal sets out six grounds of appeal. They were numbered as follows:
7.The charges did not permit the Court to convict the appellant on the basis of aiding and abetting.
8.The charges contained latent ambiguity
9.The conviction of the appellant was an example of the “inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessor to the offence consisting in the vicarious responsibility for his acts?”.
10.There was insufficient evidence before the Court to enable the appellant to be properly convicted.
11.The Court failed to consider each count against the appellant individually and in light of the evidence admissible against each count.
12.The sentencing discretion miscarried by reason of the Court taking irrelevant considerations into account.[4]
These grounds were elaborated by written submissions and then contracted in oral argument. Mr Papas QC, who appeared for the appellant, abandoned many of the above, and contended grounds 7 and 8 captured the central tenet of the appeal. Ground 9 (including its question mark) was mercifully left to one side.[5] Mr Papas (who was not the author of the grounds) stated that grounds 10 and 11 were informative of grounds 7 and 8. The sentencing grounds[6] were not argued orally.
[4]Notice of Appeal filed on behalf of the appellant, dated 21 April 2015, [7] – [12].
[5]Transcript of Proceedings, Kartawidjaja v Rowe (Supreme Court of Victoria, 2015/01879, Justice T Forrest, 14 December 2015) (‘SCV Transcript’), 6.
[6]In addition to ground 12, two further sentence grounds were proposed in written submissions (proposed grounds 14 and 15) relating to parity and manifest excess.
It seemed to me that by the end of the appeal hearing the grounds had crystallised into this single reformulated contention:
In the case of multiple charges, every charge must receive individual consideration in light of the evidence admissible in relation to that particular charge. Her Honour erred by making global findings about the appellant’s conduct and failed to make the individual findings of fact required to substantiate the elements of each or any of the charges.[7]
I shall consider this single reformulated ground in these reasons. Insofar as the no case submissions ground is concerned (ground 10), whilst initially submitting the evidence fell short of establishing a case to answer in each of the 111 charges, Mr Papas retreated from this position, conceding that it ‘might have’ been that if her Honour had given individual consideration to each of the 111 charges on the admissible evidence, she could have lawfully reached the same conclusions.[8] Mr Papas assiduously avoided making individual no case submissions himself.
The prosecution case and the areas of contention
[7]See SCV Transcript 14, 15, 23.
[8]SCV Transcript 64.
Nando’s restaurants and Chaddy Mart stores were operated under the names of various corporate entities. The prosecution alleged that the appellant effectively controlled and ran each store through an interconnected corporate structure. A diagram reproducing that corporate structure[9] is annexed as Annexure A to these reasons. Flavius Djieng is the appellant’s husband.
[9]Annexed to Respondent, ’Written Submissions’, Submission in Kartawidjaja v Rowe, 2015/01879, 18 August 2015, [12].
The prosecution further alleged that each of the relevant corporate entities were in fact controlled by the appellant from the Hallam offices of Multivic Pty Ltd, an office furniture business run by the appellant’s husband, which also was a control point for the relevant Chaddy Mart stores and Nando’s restaurants. The accounting and payroll functions for each store were centrally administered by various Multivic staff members said to be acting under the instruction and direction of the appellant. The appellant was a shareholder and the sole director of Multivic.
The appellant is said to have occupied various positions vis-à-vis the relevant corporate entities and the stores, being either one or more of a company director, owner, manager, agent or servant of the relevant corporate entities in each instance. As the case developed it became clear that the appellant did not employ any of the students herself. Rather, it was contended that one or other of the relevant corporate entities employed each of the students but that the appellant in every case controlled the activities of the employer company.
In relation to the 111 charges, each of the subject students was from overseas and, as I have said, held a student visa conditioned that the holder not work in excess of 20 hours in any study week.[10] During the relevant charge periods, the subject 21 workers worked at one or more of the appellant’s stores in breach of their work limitation condition by working more than 20 hours per week while their courses of study were in session.
[10]Vacation periods were exempt from the operation of this condition.
The appellant, it was alleged, ‘devised and implemented various false record keeping, accounting and payment methods which allowed or continued to allow the workers to work in breach of their visa conditions, as the true numbers of hours worked…was concealed’.[11] The appellant was said to have implemented this scheme by various means including:
(a) Splitting the names of workers and hours of work on rosters.
(b) Using aliases to record the total hours worked by one individual worker under two different names.
(c) Paying cash … to workers for hours worked in excess of the 20 hours per week limit.
(d) Reporting hours worked over 20 hours as holiday pay earned during periods when the workers’ courses of study were not in session.
(e) Converting the hours worked in excess of 20 hours per week into a 20-hour week but payable at an inflated hourly rate.
(f) Creating and maintaining two sets of accounting record, one in MYOB recording the legally permitted number of hours and the other in Excel recording the true number of hours worked by the subject workers in excess of their visa conditions.[12]
[11]Respondent, ’Written Submissions’, Submission in Kartawidjaja v Rowe, 2015/01879, 18 August 2015, [12].
[12]Ibid, [12] – [13].
None of these factual assertions were seriously disputed by the appellant at the hearing. The appellant did not give evidence.
The prosecution initially alleged two forms of criminal responsibility – the appellant was either the principal offender or alternatively aided and abetted, counselled or procured the commission of the offence by another person. As I have observed, as the case developed the evidence demonstrated that the students were employed by one or other of the relevant corporate entities. Reflecting this, the prosecution abandoned its allegation that the appellant was a principal offender and pressed the allegation, in relation to every charge, of aiding, abetting, counselling or procuring the principal offence pursuant to s 11.2 of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’).
It contended that the rules for corporate criminal responsibility provided for by s 493 of the Act[13] were engaged by the actions of the appellant and the same conduct was sufficient in each case to prove the principal offence had been committed by the relevant corporate entity. In turn, that same conduct, having established attributional liability and the principal offence, could be used in the body of evidence to establish in each case that the appellant aided and abetted the principal offence.
[13]Section 493(2) of the Migration Act 1958 (Cth) provides that conduct engaged upon on by a director, servant or agent of a body corporate, in the scope of his or her actual or apparent authority is to be taken as having been engaged in by the body corporate for the purpose prosecution of the offence under that Act, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
In support of these allegations, the prosecution called two former Multivic employees[14] and four former employees of one or more of Nando’s Chadstone, Chaddy Mart or Multivic.[15] The prosecution also tendered a significant body of documentary evidence. Mr Crowley contended on appeal that the totality demonstrated:
(1) The 21 subject workers were overseas students, who were not Australian citizens;
(2) Each of the workers held a student visa subject to a 20 hour per week work condition;
(3) The workers were employed to work at the various Chaddy Mart or Nando’s stores during periods when their courses of study were in session;
(4) The workers worked at various Chaddy Mart or Nando’s stores in breach of their 20 hours per week work limitation;
(5) The head office of Chaddy Mart and Nando’s stores was the Multivic premises;
(6) The appellant was either a company director, owner, manager, servant or agent of each relevant corporate entities [sic] within the overall corporate structure that controlled the stores.
[14]Ms S. Low (Affidavit of Anni Kartarwidjaja sworn 21 April 2014, exhibit AK-6: Transcript of Proceedings, Department of Immigration and Citizenship v Anni Katawidjaja (Magistrates’ Court of Victoria, D12177289, Magistrate McCallum, 3 February 2015) (‘Magistrates’ Court Transcript’), 22); Ms A. Sohal (Exhibit AK-6: Magistrates’ Court Transcript, 110).
[15]Ms A. Atmadja (AK-6: Magistrates’ Court Transcript, 54); Mr G. Hartondo (AK-6: Magistrates’ Court Transcript, 75); Ms Sutanti (AK-6; Magistrates’ Court Transcript, 142); M.Thedja (AK-6; Magistrates’ Court Transcript, 208).
I do not understand that the appellant challenges these evidentiary assertions. In paragraph [2], I observed that the prosecution, whilst unable in all cases to identify the principal offender, contended that it would be sufficient to prove that the students had been employed by one or other of a category of corporate entities within an overall corporate structure managed and controlled by the appellant. These ‘relevant corporate entities’ can be found in the chart that I have reproduced in paragraph [5].
The prosecution then contended that the evidence was sufficient to demonstrate the commission of the primary offence by a relevant corporate entity. Again, I do not understand that the appellant disputes that it was open to her Honour to find, in each case, that the principal offence had been committed. The appellant does not concede, however, that her Honour actually did make this finding, in relation to each offence, after proper individual consideration.
The prosecution relied on s 11.2 of the Criminal Code to allege that the appellant aided, abetted, counselled or procured each of the 111 offences. In this regard, the prosecution relied on the same evidence of the appellant’s conduct that it had adduced to prove the principal offending through the gateway of s 493 of the Act.[16] At the Magistrates’ Court hearing, counsel for the appellant approached the case by arguing that, as the prosecution had drawn up the charges alleging the appellant was the principal offender, it ought be estopped from seeking a conviction on the basis of aiding and abetting. This submission was correctly rejected by her Honour (it had been apparent from the outset that the cases were being put on alternative bases)[17] and is not pursued on this appeal.
The appellant’s submissions on appeal
[16]See paragraphs [9] and [13] above.
[17]Exhibit AK-6: Magistrates’ Court Transcript 7, 8; Exhibit AK-6: Magistrates’ Court Transcript 11 - 13.
In paragraphs [3] and [4] of these reasons, I have set out the single reformulated argument by Mr Papas. In support of this argument, he criticised her Honour’s reasons in various ways. He contended that her Honour’s failure to give individual consideration to each offence was a product of the charges being insufficiently particularised. Mr Papas argued that where the identity of a principal offender (being a relevant corporate entity) is inferred from the conduct of an individual related to that corporate entity, and the same conduct is said to constitute the aiding and abetting, that conduct is therefore inextricably related to the individual’s role in or relationship to the principal corporate entity. Therefore, so the argument proceeded, in relation to each charge it is necessary to identify with precision the corporate role or relationship undertaken by the accused and the relevant activities carried out by the accused in that role or relationship. Only then could it be determined whether (a) the principal offence has been committed and (b) the accused aided and abetted, counselled or procured that offence. This was not an example, Mr Papas submitted, of the one identical offence being committed 111 times where a single broad brush consideration might be said to constitute individual attention to each offence. On the prosecution’s own case, the offending, while similar, varied from time to time and therefore, in Mr Papas’ contention, demanded individual consideration of each charge.
Mr Papas accepted that her Honour set out the tests for both aiding and abetting[18] and the principal offence in the singular.[19] Notwithstanding this, he contended that, by and large, her Honour’s findings were made in the plural – ‘the entities’ committed all of the 111 breaches alleged and the appellant aided and abetted ‘the entities’ in a global sense. Mr Papas submitted that it cannot be that ‘the entities’ committed the breaches, though he accepts that each breach may, arguably, have been committed by an entity within the group. This, however, he argues, is not what her Honour found.
[18]Criminal Code Act 1995 (Cth), s 11.2.
[19]See, e.g. SCV Transcript 60, 61.
He developed this argument by submitting that where a principal is unidentified in any particular offence, and multiple alternative principals are alleged, it is necessary to demonstrate an evidentiary link between the accessory and all of these possible principals. Where there are multiple charges this becomes exceptionally difficult, and in the present case the nexus was not clear from the Magistrate’s reasons.
He submitted that even if in some cases it might be appropriate to infer that identical conduct in respect of a class of corporate entities aided and abetted an unidentified principal confined within that class to commit an offence, that inference was not available in the present case. This was said to be because the inference would only be available where the alleged aider and abetter occupied an identical role in respect of each entity within the class, and was proved to have repeated an identical course of conduct in each case. Put shortly, despite the multiplicity of charges, the temptation to indulge in broad brush reasoning needed to be resisted. It followed, so Mr Papas contended, that to describe the appellant broadly as ‘in overall management of the relevant corporate entities’[20] or ‘as a director, agent or servant’[21] (for the attributional inference) was insufficient to demonstrate the specific conduct required to prove her accessorial role in respect of that class of entities. The prosecution diagram demonstrates a different formal role for the appellant in respect of different companies. For some of those entities she appears to be linked solely by her marriage to a director of the particular company. These are simply not ‘identical corporate structures set up in exactly the same way where people have the same relationships’.[22]
[20]See, e.g. Magistrate’s Reasons [78].
[21]See, ibid, [74].
[22]SC Transcript 39.
It followed, according to Mr Papas, that whilst it was not essential to identify a principal offender in certain types of aiding and abetting cases it was essential in this case because the alleged conduct said to constitute the aiding and abetting could not be fully extracted from the corporate relationship – a relationship that appeared to differ across the class of ‘relevant corporate entities’.
Mr Papas further argued that even if the evidence was capable of establishing that the appellant had ‘effective control’ of all the entities, such ‘effective control’ did not constitute aiding and abetting conduct capable of tying the appellant to each individual breach at each relevant time. The appellant must be shown by specific conduct to be connected to each individual charge.
Witnesses who gave evidence at the Magistrates’ Court hearing described a variety of apparently managerial directions given by the appellant related to activities such as record keeping, bogus books, cash payments, aliases and other deceptions designed (inferentially) to conceal evidence of the breaches. These directions varied from student to student, and varied over time.[23] Mr Papas was critical of her Honour’s reasons which he contended made sparse reference to specific dates or timeframes for these directions, and never extrapolated which of this conduct went to proving which particular charge. Evidence that conduct occurred at a time relevant to some or other of the charges, and occurred in the context of the appellant occupying some role or other in one or other in one of the relevant corporate entities is simply insufficient to prove all of the charges globally. He further submitted that while her Honour’s summary of the witnesses’ evidence specifically considers the individual workers, it is often unclear what specific conduct of the accused is said to relate to that worker, let alone at what time or in respect to which charge.
[23]See, e.g. Magistrate’s Reasons [134] –[141], her Honour’s summary of the evidence of Ms Sultani: by reference to a series of excel spreadsheets Ms Sultani described methods including: totals hours worked by student were disguised; another student’s rent was deducted from their pay; another student’s hours were stacked to be paid in the holiday period.
Mr Papas finally made the submission that her Honour appeared to misdirect herself on the application of R v Serratore[24] (‘Serratore’). Mr Papas contended that Serratore is authority dealing with whether a properly worded charge needs to particularise that it is put on an accessorial basis.
[24][1999] NSWCA 377.
This was an issue before her Honour on the hearing and the case was referred to in that context. Her Honour appeared to rely on Serratore to support her statement that ‘it is not necessary for the prosecution to identify precisely which student was employed by which entity to satisfy the criminal standard of proof’.[25] Serratore is not authority for such a proposition.
Respondent’ s submissions
[25]Magistrates’ Reasons [69]. The sentence begins ‘Furthermore, the authorities examined above demonstrate that …’ then uses the citation ‘See the discussion above of R v Serratore’.
Many of the respondent’s written submissions were responsive to the confusing and largely unhelpful written submissions filed by the appellant’s solicitor. As I have indicated, Mr Papas largely abandoned these submissions and reformulated his own, focusing orally on what he perceived to be his best argument. I shall refer only to those parts of Mr Crowley’s clear and articulate submissions that are responsive to Mr Papas’ ultimate argument.
Mr Crowley accepted that it was incumbent on her Honour to give individual consideration to each of the charges, and that if I am unable to distil such consideration from her Honour’s reasons then the appeal will succeed.[26] He argued that there are sufficient evidentiary references throughout her Honour’s reasons for me to infer that the charges have been afforded individual consideration, and that the reasons demonstrate that the elements of each charge have been adequately identified and found proved.
[26]SCV Transcript 102 – 103.
The relevant corporate entity
On the ‘relevant corporate entities’ issue, Mr Crowley submitted that it was sufficient for her Honour to conclude that the principal offender of each charge was one or other of the identified class of corporate entities. Reference throughout her Honour’s reasons to the ‘corporate entities’ in the plural is, he says, a simple linguistic point. He submitted that her Honour’s use of the plural indicated merely that the principal was identified as belonging to a class containing multiple corporate entities, but was not specifically identified within that class. It does not indicate that her Honour was identifying all of the corporate entities as the principal on each charge.[27]
[27]SCV Transcript 96, 97.
Further, Mr Crowley contended that her Honour was not required to make a more specific finding as to the corporate entity principal on each charge. The respondent’s case, both in the Magistrates’ Court and on this appeal, is that the specific identity of the employer is not essential to the overall prosecution of the charges. The workers were employed by an entity within a limited and defined corporate structure. The criminal conduct the subject of these breaches was the product of a system common across this structure. The specific identity of a worker’s employing entity within that class at any one time was opaque, and often seemed contradictory.[28] What is relevant, Mr Crowley argued, is that the evidence demonstrates that the appellant was in effective control of the rostering and payment of the relevant workers across this structure. Regardless of which entity employed a worker for the charge period, the relevant entity was one of that closed class, and the appellant had effective control of all of that class.
[28]See, e.g. SCV Transcript 66. Mr Crowley described that one worker was paid by ‘Chaddy Mart’ despite never working at Chaddy Mart, and only working in Nando’s restaurants.
The appellant’s relationship to the relevant corporate entity
The respondent argued that the evidence established the Multivic office was the head office for all relevant Nando’s restaurants and Chaddy Mart stores. All entities within the class fell under the umbrella of Multivic Pty Ltd,[29] of which the appellant was sole director. Staff at the Multivic office were responsible for maintaining records of hours worked by employees of the Nando’s restaurants and Chaddy Mart stores, producing pay slips, and making arrangements for payment either by cash or bank transfer. Hard-copy and computer MYOB and Excel records relied upon by the prosecution at trial were seized from the Multivic office. Witnesses called at the Magistrates’ Court gave evidence that the appellant was ‘the boss’ across the corporate structure. The relationship between her impugned conduct and the scope of her authority in each corporate entity within that structure, the respondent submitted, is identical.[30] The precise identity of the employing entity therefore did not require any further particularisation or articulation.
[29]SCV Transcript 68.
[30]SCV Transcript 84.
The appellant’s conduct
The prosecution case at trial was that the appellant devised systems of rostering, record keeping, and payment for the purpose of disguising the true amount of hours worked by the non-citizen workers.[31] The trial evidence established that at various times she directed accounting, administrative and managerial staff to keep records in this manner, and that her directions were followed.
[31]Ibid, 71; see [14] above.
Evidence of this conduct, Mr Crowley submitted, was sufficient to jointly satisfy the Magistrate of the elements of the s 245AC breaches, and that the appellant had aided and abetted the relevant corporate entity to commit those breaches.
Nexus between the conduct and each charge
It was the prosecution’s case that the breaches constituting the 111 charges occurred in the context of a system of deceptive record keeping. The appellant devised this system, directed that it be followed, updated it from time to time, and was reported to by staff ‘lower in the chain of command’. Though identifiable through discrete acts, the impugned conduct is effectively a single, continuous course of action performed by the appellant as she implemented and utilised this system. Consequent actions of staff down the administrative ranks are aspects of evidence of this conduct, but those discrete acts do not constitute the relevant conduct itself.
At the Magistrates’ Court hearing, Ms Sultani, a pay roll officer at Multivic Pty Ltd, was shown a list of the names of the 21 workers relevant to the charges. She gave evidence that the appellant’s instructions concerning deceptive record keeping applied to all workers named on that list.[32] Ms Thedger, a Multivic accountant, also gave evidence that deceptive record keeping methods were used in relation to each of the 21 workers.[33]
[32]SCV Transcript 100 – 101.
[33]Ibid 102.
Mr Crowley submitted that it did not matter that the Magistrate’s reasons did not specifically temporally link the appellant’s conduct to each charge. That her record keeping system was specifically related to each subject student, and was in place and within the scope of the appellant’s control at the relevant times, was sufficient to find that the appellant had aided and abetted each breach. The s 245AC breaches were charged as ‘continuous charges’;[34] the students were allowed to work over and above their permitted hours in the context of the appellant’s deceptive accounting scheme during the charge periods. Because the asserted conduct was common to each charge, it did not need to be reiterated 111 times over.[35]
The global approach
[34]Respondent, ’Written Submissions’, Submission in Kartawidjaja v Rowe, 2015/01879, 18 August 2015, [48], [49], [58].
[35]SCV Transcript 72.
Accordingly, Mr Crowley contended that no error should be inferred from the global approach by which the Magistrate structured her reasons. Her Honour’s approach, he says, demonstrates sufficient connection between the appellant’s conduct and the individual charges. He pointed to the table annexed by her Honour to the conclusion of her reasons, which outlines the hours worked by each of the subject students during the periods constituting each of the 111 charges.[36] This table was based on the section 50 schedules and source documents[37] provided by the prosecution at trial.[38] These documents specifically relate the hours worked by each student to each count, and are referenced in her Honour’s reasons.[39] As I have summarised in [35] above, Mr Crowley argued that there was no need to repeatedly restate the impugned conduct for each of these charges, as it was common across all 111.[40]
[36]Ibid 71.
[37]See SCV Transcript 87. Source documents included pay slips, records and other material seized from the Multivic head office.
[38]It is noted that at the Magistrates’ Court hearing section 50 schedules were tendered by consent insofar as their content and accuracy was concerned (a ‘business records objection’ was made, but was not pursued on this appeal), see SVC Transcript 89, 95.
[39]Magistrate’s Reasons [200] - [201].
[40]SCV Transcript, 72.
The Magistrate’s reasons for decision
Her Honour’s written reasons, along with their annexures, span about 100 pages. As the argument on this appeal precipitated to ‘whether or not the Magistrate gave individual consideration to each charge’, it is necessary to examine her Honour’s reasons in some detail. In addition to the factors patently considered by her Honour, the language and structure of the reasons is informative on any inference to be drawn about her Honour’s reasoning process.
Her Honour set out two ‘principal’ questions that arose for determination. The first, whether the prosecution could rely on s 11.2 of the Criminal Code as an alternative basis of liability, was answered against the appellant and does not arise on this appeal. The second question was expressed as follows:
Does the evidence disclose that the accused aided and abetted the Relevant Corporate Entities in 111 breaches of section 245AC of the Migration Act?[41]
To which her Honour concluded:
(c) The evidence discloses that the accused aided and abetted the Relevant Corporate Entities in the 111 breaches of section 245AC of the Migration Act.
(d) The accused has a case to answer and her no case submission is dismissed.
(e) I find the 111 breaches of section 245AC of the Migration Act proven beyond reasonable doubt.[42]
[41]Magistrate’s Reasons [3].
[42]Ibid, [4].
Following this overview of findings, her Honour set out ss 245AC and 245AG[43] of the Act. In a brief background to the offending,[44] her Honour describes:
The prosecution alleges that on each occasion, the international students worked at either Chaddy Mart convenience stores or Nando’s restaurant stores, and that these stores were businesses of which the accused was the owner, proprietor, manager, agent or person responsible for the business.[45]
The foundation of liability
[43]Section 245AG concerns the definition of ‘allows a person to work’.
[44]Magistrate’s Reasons [8]-[10].
[45]Ibid [10].
Section 493 of the Act, which provides the statutory basis upon which a corporate entity could be convicted of an offence, was also set out in full,[46] and her Honour correctly noted that, in proceedings for an offence against the Act in order to establish the relevant state of mind of a body corporate, it was sufficient to show:
[46]Ibid [16].
(a) The conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) That the director, servant or agent had the [relevant] state of mind.[47]
Her Honour then, also correctly, set out the effect of s 493(2)[48] and outlined her interpretation of the prosecution contentions on this point:
The prosecution asserts that the conduct engaged by the accused in allowing or continuing to allow, the student non-citizen workers to work in breach of their visa conditions is conduct that should be imputed to the Relevant Corporate Entities pursuant to s 493.
The prosecution says further that of which corporate entity within the accused’s corporate conglomeration was the particular legal employer of a particular student…’the existence which establishes criminal responsibility on the part of the body corporate and the means by which corporate criminal responsibility arises are identifiable and remain the same regardless of the precise identity of the company employer (i.e. requisite conduct) physical and state of mind/fault elements of the accused are deemed/imputed to the employer pursuant to s 493 of the Act.[49]
[47]Ibid [17].
[48]That conduct engaged in by a director, servant or agent of the body corporate who, while acting within the scope of either actual or apparent authority, shall be taken to be the conduct of the body corporate. Subject to the precondition that the body corporate did not take reasonable precautions to avoid the conduct.
[49]Magistrate’s Reasons [18] – [19].
Her Honour further set out s 4.1 and Division 5 of the Criminal Code which outline the fundamentals of physical and fault elements of offences,[50] before finally, in a shorthand way, summarising the matters to be proved by the prosecution:
[50]Magistrate’s Reasons [21] – [22].
a.that the body corporate employer, that is, the principal offender, committed an offence contrary to section 245AC of the Migration Act. In this case, the body corporate employer is one or more of the Relevant Corporate Entities.
b.that the accused engaged in conduct that in fact aided, abetted, counselled or procured the commission of the offence committed by the principal offender; and
c.that when engaging in that conduct the accused intended that her conduct would aid, abet, counsel or procure the commission of the offence, or an offence of the type, committed by the principal offender.[51]
I can discern no error in these simple propositions. The prosecution must prove the principal offence and it must prove that the accused intentionally aided and abetted the principal offender.
Elements of the offences
[51]Magistrate’s Reasons [22].
Paragraphs [23] – [30] of her Honour’s reasons set out the elements of the principal offence together with a summary of the relevant prosecution contentions. Paragraphs [31] and [32] set out the elements of s 11.2 of the Criminal Code (aiding and abetting). I shall set out paragraphs [23] – [31] of her Honour’s reasons. The emphases in bold and italic script are mine:
23.Section 245AC of the Migration Act contains the physical and fault elements that must be proven to establish that an offence was committed by the Relevant Corporate Entities in relation to each of the charges.
24.The first element is that the person allows, or continues to allow a person, in this case the non-citizen student, to work. The physical element is the conduct in doing so, and the fault element is intention (section 245AC (1)(a)).
25.The second element is that the worker is a non-citizen. The physical element is the circumstances of the worker being a non-citizen, and the fault element is knowledge of or recklessness as to this fact (section 245AC (1)(b)).
26.The third element is that the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia. The physical element is the circumstance of the visa holder being subject to the visa restriction. The fault element is knowledge or recklessness as to this fact (section 245AC (1)(c)).
27.The fourth element is that the worker is in breach of the visa condition restricting the work that the worker may do in Australia. The physical element is the circumstance of the breach, and the fault element is knowledge of or recklessness as to this fact (section 245AC (1)(d).
28.The meanings of ‘work’ and ‘allows to work’ are set out in section 245AG, referred to above.
29.The Prosecution argues that criminal responsibility is imputed to the Relevant Corporate Entity through the conduct of the relevant director, servant or agent of these corporate entities pursuant to section 493 of the Migration Act. The Prosecution must prove beyond reasonable doubt that:
(a) The Accused was a director, servant or agent of a particular body corporate and that the accused acted within the scope of her actual or apparent authority (section 493(1)(a) of the Migration Act);
(b) That the Accused acting as director, servant or agent ‘had the state of mind’ (section 493(1)(b) of the Migration Act).
30.With respect to the principal charge under sections 245AC and 493 of the Migration Act, in relation to the Relevant Corporate Entities, the Prosecution must prove beyond reasonable doubt the following matters:
Element 1 – persons were allowed to work or continued to work
a.The first physical element of the offence, that the body corporate allowed the non-citizens to work, or continue to work. The Prosecution asserts that this is established by the evidence of the Accused’s conduct engaged in as a director, servant or agent of the body corporate acting within the scope of her actual or apparent authority in allowing the students to work or continue to work.
b.The fault element of this offence is the intention in respect of this conduct on the part of the body corporate. The Prosecution asserts that this element is established by the evidence of the Accused’s state of mind, as a director, servant or agent of the relevant body corporate, when she allowed the students to work or continue to work, which is taken to be conduct engaged in by the company. The Prosecution asserts that the only possible inference that arises from the evidence is that the Accused engaged in the relevant conduct intentionally.
Element 2 – the persons were non-citizens
a.The second physical element of the offence, that each person was a non-citizen.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of this aspect of the offence, recklessness on the part of the body corporate, is established by the evidence of the Accused’s state of mind as a director, servant or agent of the body corporate, when she engaged in the relevant conduct, which is taken to be engaged in by the company. The Prosecution submits that the only possible inference that arises from the evidence is that the Accused was reckless as to the fact that the persons were non-citizens, and that this state of mind is to be imputed to the Relevant Corporate Entities.
Element 3 – the non-citizens held visas with a work restrictions
a.The third physical element of the offence is that the non-citizens held a student visa that contained a condition limiting the work that they could do no more than 20 hours per week in any week during which their course of study was in session. This element of the offence was not disputed by the Defence. In any event, the evidence adduced by the Prosecution and referred to in detail below, establishes this fact.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of recklessness on the part of the body corporate is established by evidence of the Accused’s state of mind as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct, which is to be imputed to the Relevant Corporate Entities. The Prosecution asserts that the only possible inference that arises is that the Accused was reckless as to the fact that the persons held visas restricting the number of hours that they could work during periods when their course of study was in session.
Element 4 – the students worked in breach of their visa conditions
a.The fourth physical element that the students worked in breach of their visa conditions. The Prosecution asserts that this element is established by the following unchallenged evidence. First, that the students were enrolled in relevant course of study which was in session at the relevant times the subject of each charge. Second, that they worked in the Accused’s Nando’s and Chaddy Mart stores for more than 20 hours in a given week during the relevant times that are the subject of the charges.
b.The fault element of knowledge or recklessness on the part of the body corporate. The Prosecution asserts that the fault element of recklessness on the part of the body corporate is established by the evidence of the Accused’s state of mind, as a director, servant or agent of the Relevant Corporate Entities, when she engaged in the relevant unlawful conduct, which is to be imputed to the Relevant Corporate Entities. The Prosecution alleges that the only possible inference that arises is that the Accused was reckless as to the fact that the students were working in breach of their visa conditions.
Elements of section 11.2 of the Criminal Code
31.For the Accused to be found guilty of an offence under section 11.2(1) of the Criminal Code, the Prosecution must prove beyond reasonable doubt that:
a.through the deemed or imputed conduct and state of mind of the Accused as director, servant or agent, the Relevant Corporate Entities committed the principal offence under section 245AC of the Migration Act (the elements for the commission of the offence are referred to above);
b.the conduct of the Accused in fact aided, abetted, counselled or procured the commission of the principal offence (section 11.2(2)(a) of the Criminal Code);
c.the offence was committed by the Relevant Corporate Entities (section 11.2(2)(b) of the Criminal Code); and
d. the Accused intended that her conduct would aid, abet, counsel or procure the commission of the offence (including its fault elements) or an offence of that type, committed by the Relevant Corporate Entities (section 11.2(3)(a) and (b) of the Criminal Code).
It can be seen that when her Honour first summarised the elements of the principal offence she used language consistent with a separate consideration of each charge - for example, [25] – [27] refer to ‘worker’ in the singular. When, however, her Honour came to spell out the ss 245AC and 493 tests with reference to the prosecution argument, her Honour tended to use language inconsistent with an individual consideration of each charge (for example, [30] Element 1 (b) ‘allowed the students to work or continue to work’; Element 4 (a) ‘the students were enrolled…’).
No case submission
Her Honour then dealt with the ‘no case’ submissions made on behalf of the appellant at the conclusion of the prosecution case. A number of issues there raised are not the subject of any ground in this appeal and it is unnecessary to refer to them.[52] Relevantly, her Honour acknowledged the defence contentions that:
it is not possible for the Accused or the Court to state which of the eight corporate entities, referred to by the prosecution, is the principal in respect of each of the charges … there is no evidence before Court of the interaction between the Relevant Corporate Entities and the Accused,[53]
and ‘it is impossible to understand from the charge sheet who was aided and abetted and in what way the aiding and abetting took place’.[54] Though further no case arguments concerning the form of the charge were not pursued on appeal, the ‘particularisation’ submissions regarding the nexus between the appellant’s conduct and a ‘relevant corporate entity’ are substantively the same as those argued before me. Aside from restating the statutory tests, her Honour’s conclusion in regards to this aspect was limited to: ‘the Prosecution states and I accept, that it has been unable to give greater particularity in relation to the charges, as the corporate entities that employed the students were unknown’.[55]
The Relevant Corporate Entities
[52]These issues include the form of the charge and the failure to provide particulars.
[53]Magistrate’s Reasons [35].
[54]Ibid, [46].
[55]Ibid, [47].
Her Honour then proceeded to address the prosecution characterisation of the ‘relevant corporate entities’, and her reasons for accepting this characterisation. In paragraphs [61] and [62] she set out conclusions drawn from company extracts: that ‘at the relevant times’ the accused was either a sole or co-director of Multivic Pty; Chaddy Mart Pty Ltd; Djung Holidngs Pty Ltd; Funnai Investments Pty Ltd; and that, at the relevant times, the accused’s husband was sole or co-director of six further companies (notably, her Honour then listed the following eight companies): Multiline Distributors Pty Ltd, Riben Training and Consulting Pty Ltd, Ozan Venture Pty Ltd, Berandos Pty Ltd, Nathandos Pty Ltd, Ozan Quatro Pty Ltd, Shasandos Pty Ltd and Juliandoes Pty Ltd. Some point is made about the accused and her husband being shareholders in some of these companies – in my view, the relevance of this is unclear. The entities listed above are said to form the foundation of the ‘amorphous corporate structure’ referred to by the prosecution.
Further unit trusts, apparently of Multiline Distributions Pty Ltd, were linked to specific Nando’s restaurants via a prosecution summary tendered without objection. Her Honour was satisfied that witness evidence established sufficient links between all relevant Nando’s restaurants and Chaddy Mart stores and this corporate structure.[56] Broadly, the evidence is said to establish that workers at the relevant Nando’s restaurants and Chaddy Mart stores had entered into contracts of employment with various corporate entities, all within this ‘amorphous structure’. Specific reference is made to witness evidence from administrative staff as to the company name on standard form employee contracts, and the company names to be entered on workers’ pay slips.
[56]Magistrates Reasons [64], [66].
Her Honour concluded that this evidence sufficiently established that, where the prosecution could not precisely identify the particular legal entity employer, the employer of a worker must have been ‘one or more of the Relevant Corporate Entities’ that made up this corporate structure.[57] This being established, her Honour continued to address the issue of whether or not accessorial liability on the s 11.2 basis could be argued. That issue was not disputed on appeal.
The role of the appellant
[57]Ibid, [69].
Having concluded that the relevant employer in respect of each charge must be ‘one or more of the relevant corporate entities’ her Honour proceeded to examine the s 493 attribution question, formulated as:
Was the Accused a director, servant or agent of a particular body corporate? Did she act within the scope of her actual or apparent authority, and did she have the “state of mind”?[58]
[58]Ibid, [76]-[77].
To which her Honour found:
(a) The accused together with her husband, was the owner of the Nando’s and Chaddy Mart stores;
(b) The Accused was in overall charge of the management of the Relevant Corporate Entities that operated the Nando’s and Chaddy Mart stores, first as the actual director of Multivic Pty Ltd, the head office that oversaw the payment of the students the subject of the charges; secondly, as the actual director of Chaddy Mart Pty Ltd and thirdly, as a director, servant or agent of the other Relevant Corporate Entities, at all times acting within the scope of her actual or apparent authority;
(c) The Accused had the ‘state of mind’ with respect to the fault elements of s 245AC.[59]
[59]Magistrate’s Reasons [78].
The foundations of these findings are apparently found from the following 26 pages of witness evidence summaries. The witnesses called were primarily administrative staff who had a role involving rostering or record keeping at one or other of the corporate entities. The informant also gave evidence.
I do not intend to further summarise her Honour’s witness summaries, but rather annex them to these reasons as Annexure B. Her Honour does not explicitly state that the summarised evidence was accepted, but rather describes the summaries as ‘the evidence of the key witnesses in relation to each of these findings’.[60] From this description, I infer that the evidence summarised must have been accepted by her Honour.
The section 50 schedules
[60]Ibid, [83].
Her Honour refers, at [201], to summaries prepared by the Informant pursuant to s 50 of the Evidence Act 2008 (Vic) (‘stn50hedle’susc oice). These schedules, derived from materials seized at the search of the Multivic office, summarise the work histories of the 21 students relevant to the charges. Specifically, the schedules stipulate: the pay period; hours worked; exhibit number and page number; visa condition; study periods and breaks.[61] Her Honour states that she checked these schedules against the materials seized. She attaches ‘Attachment A’ to her reasons, in which she sets out, for each of the 111 charges: the charge number, the name of the student, the dates of the offences; the number of hours worked, and the term duration.[62] Her Honour then makes explicit reference to the information summarised in Attachment A, along with the witness evidence at the hearing, to find ‘in respect of each of the 111 charges’:
(a) That the named non-citizen students worked in excess of 20 hours per week while their courses were in session, and in doing so, they were in breach of their international student visa conditions;
(b) That the named non-citizen students worked at the Nando’s and Chaddy Mart stores;
(c) That the Nando’s and Chaddy Mart stores were operated by the Relevant Corporate Entities that employed the students, although it is not clear which corporate entity employed which student in each of the periods the subject of the charges.[63]
[61]Ibid, [200] – [201].
[62]Ibid, [202].
[63]Magistrate’s Reasons [203].
Notably the language of the above, whilst purporting to be in respect of 111 individual charges, is expressed in the plural.
From [204], her Honour once again sets out the elements of the s 245AC offending (as imputed via s 493), and concludes broadly that based on the evidence previously summarised, each element is found proven beyond reasonable doubt in respect of the ‘Relevant Corporate Entities’.
Finally, in addressing s 11.2 of the Criminal Code (and following a further reiteration of the required elements), her Honour describes globally that ‘there is an abundance of clear and compelling evidence in this Prosecution that the Accused in fact aided and abetted the Relevant Corporate Entities in commission of the principal offences’.[64] Specifically, she cites the ‘evidence listed by the Prosecution in paragraph 106 in addition to the summary of the evidence in these reasons’.[65]
[64]Ibid, [207].
[65]Ibid.
The defence submission, that the accused did not have overall responsibility for managing and running the business operations of the ‘Relevant Corporate Entities’, is dismissed in light of the ‘clear account of various witnesses’ and:
…documentary evidence seized from the head office at Multivic and the Accused’s home …. that demonstrate[s] that the Accused was issuing directions to her various staff with respect to all aspects of the business operations concerning the employment and payment of the non-citizen workers.[66]
[66]Magistrate’s Reasons [208].
Analysis
It is established law that, where a presentment contains multiple counts, the counts must be given individual consideration and a separate verdict reached for each.[67] Failure to do so constitutes an error of law. Both sides accepted that individual consideration of the elements was required for each charge, and it was the appellant’s contention that this did not occur.
[67]R v PMT [2003] 8 VR 50; MFA v R (2002) 193 ALR 184; KRM v R (2001) 206 CLR 221; R v TJB [1998] 4 VR 621; R v Robertson [1998] 4 VR 30; R v J (No. 2) [1998] 3 VR 602.
The requirement for separate consideration of multiple charges exists alongside evidentiary considerations, such as cross-admissibility and tendency and coincidence reasoning. The necessity to make individual findings is not obviated because evidence on one charge is cross-admissible on the others.[68] This requirement is of particular importance in this case, where the appellant was convicted on 111 counts of aiding and abetting a principal offender who cannot be identified beyond being one or other of several ‘relevant corporate entities’ in an ‘amorphous corporate structure’ at various points over a span of more than two years.
[68]See R v Mitchell (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Cole JA and Sperling J, 5 April 1995). In jury trials, a presiding judge should direct the jury to consider each count separately, even if all of the evidence is admissible in relation to all of the counts.
It is notoriously difficult to prove a negative. To make a finding that the Magistrate has erred in law, I must actively find that her Honour did not afford each charge individual consideration. The burden is on the appellant to establish this error. On balance, however, I am positively satisfied that her Honour failed to give each charge individual consideration.
That her Honour apparently spent a great deal of time upon her reasons sheds little, if any, light on whether the reasoning processes required by law were actually undertaken. Determined reiteration of the basal elements of the relevant statutory offence neither clarifies nor explains the proof of these charges. It is perplexing that in 100 pages of reasons devoted to determining 111 individual counts there is no significant explanation or justification as to why the conduct findings required for each count were articulated globally.
In my view, her Honour’s lengthy and detailed reasons seek to treat the 111 charges as a single continuing charge, or conspiracy. Individual consideration of the conduct elements in relation to each charge period is either absent or totally opaque. From the outset, her Honour’s reasons describe the charges using language that is largely in the plural.[69] Each of the 111 charges was a count of the same offence, and it is therefore understandable that the elements of that offence might logically be set out in a single section. However, in setting out these elements, her Honour repeatedly tied her explanation to the prosecution case in a manner indicative of a global approach to determining the charges.
[69]As I have outlined in [42], the language was at times singular.
As I have set out in [42] above, the principal offender for each of the charges is fairly consistently described as ‘the Relevant Corporate Entities’. Much was made of this description in the hearing before me. As both sides agreed, it cannot be that the principal offender on each offence was ‘the Relevant Corporate Entities’. It is not permissible for her Honour to reason globally that ‘the charges’ were committed by ‘the Relevant Corporate Entities’, rather, she must make a finding in respect to the principal offender on eahharegc c.
The use of plural language is not limited to the ‘Relevant Corporate Entity’ concept. For example, in explaining the application of the s 493 attribution provision, her Honour describes ‘... [The Accused] allowed tetdens tus hto work or continue to work, which is taken to be ndutengaedinbytempanyoc h g coc’.[70] This explanation clearly indicates that the relevant conduct is being treated globally, as no single charge was, or could have been, in respect of more than one student.
[70]Magistrates’ Reasons [30]. (Emphasis added.)
Significantly, her Honour’s ultimate findings, as I have outlined in [54] and [55] above, are also expressed in the plural.
The respondent submitted that the use of plural language in these sections is a mere linguistic point. Innocent mistakes of grammar cannot, and should not, amount to an error of law. I accept this general proposition, however in the context of the reasons when read as a whole, I am compelled to conclude that the language employed by her Honour to set out the offence elements connotes far more than linguistic confusion. In a body of reasons that do not, at any point, individually articulate the conduct elements in respect of the individual charges, her Honour’s use of collective language weighs strongly in favour of the inference that collective reasoning has been employed.
There is no doubt that her Honour gave individual consideration to certain aspects of the charges. Her Honour’s ‘Attachment A’ sets out her Honour’s finding, for each of the 111 charges, of the hours worked by the relevant student during the relevant charge period. This attachment, however, does not address the essential conduct elements required to establish the liability of both the principal corporate entity offender (via attribution of the appellant’s conduct) and of the appellant herself (as an accessory) on each individual charge.
In cases where the conduct of an accused is truly identical across a number of charges, global reasoning may be allowable. One offence committed identically on 111 occasions may well be amenable to global reasoning. There is no need to explore that question in these reasons, however, as the evidence at trial clearly established that the conduct alleged to constitute the appellant’s breach (outlined in [9] above) involved a variety of deceptive strategies. As summarised by her Honour, Indri Sutanti gave evidence that ‘there were different methods of paying the students to conceal hours worked in excess of the 20 hour limit, and that these changed at the direction of the Accused over time’.[71]
[71]Magistrate’s Reasons [134].
Examples of methods were elicited from Ms Sutanti via examination of excel spreadsheets. Ms Sutanti gave evidence that one spreadsheet she was shown indicated that the total hours worked by a student were disguised, that the student’s rent was deducted from their pay.[72] Another spreadsheet showed that another student’s hours were stacked to be paid in the holiday period, when in reality the student had worked these hours during the term period.[73] Ms Sutanti thought further spreadsheet might demonstrate that a student would be paid the balance of extra hours in cash.[74] From the summary of Ms Sutanti’s evidence alone (which, as I have said in [51] above, I infer was accepted by her Honour) it is clear that the alleged deceptive conduct was not identical in respect of each of the charges.
[72]Magistrate’s Reasons [137].
[73]Ibid, [140].
[74]Ibid, [138].
Specific conduct attributed to the appellant is scattered throughout the witness evidence summaries, however the required nexus with each or any of the charges is, in my view, never properly substantiated. While the names of specific students are given, and various dates noted[75] the reasoning never appears to isolate or address any of the 111 charges in any kind of specific or systematic manner.
[75]See e.g. Magistrate’s Reasons [98], Adina Atmaja was referred to rosters of 2 – 8 July; 9 -15 July; 1 – 7 October and 8 – 14 October, and at least two people that she believed to be students – (the relevant year is not specified in Her Honour’s reasons, though her Honour does reference this summary to an exhibit, nor is it explicitly stated that the rosters referred to indicated students had worked beyond the 20 allowable hours per week); Magistrate’s Reasons, [100], Gunawan Hartano referred to a conversation which took place in 2008 in which he says the Accused asked him to give the students at least 40 hours per week; Magistrate’s Reasons [104] – [105], Gunawan Hartano was referred to an emails dated 21 June 2008 and 21 August 2008 which, her Honour summarises ‘sets out some of the names of the international students who were to be given working hours in excess of their 20 hours per week’; See also, Magistrate’s Reasons, [157] – [160]; [165] – [190], her Honour’s summary of the evidence of Muliani Thedger, with reference to a number of identified students.
Further, the appellant, both at the appeal before me and in her defence at the Magistrates’ Court, made submissions that, as her corporate role varied with respect to each of the relevant corporate entities, her conduct could not be identically imputed to each corporate entity by way of the s 493 attribution provision. It was the appellant’s submission, therefore, that a specific individual corporate entity ought to have been established as the principal offender in respect of each charge.
In my view, were her Honour satisfied that:
(a)the appellant had effective control over each and all of the corporate entities; and
(b)that control was exercised in the same manner with respect to all of the corporate entities; and
(c) that the actions imputed to the relevant entity were conducted in the context of the appellant exercising her control;
then individual identification of the specific corporate entity on each charge would not be required, as the attribution element truly would be identical across each.
From her Honour’s witness summaries, it seems that a number of witnesses gave evidence to the effect of the above – that the Multivic office was the head office of all Nandos restaurants and Chaddy Mart stores,[76] that the appellant was ‘the boss’ of Multivic Pty Ltd,[77] and that the appellant was in charge of rostering and payroll at the relevant restaurants and stores.[78] Although her Honour could certainly have articulated her findings in this respect more clearly (i.e. by making a specific finding of the appellant’s effective control of each company within the ‘amorphous corporate structure’) I do not consider this shortcoming fatal to her Honour’s reasoning. On the other hand, failure to individually link actual conduct to each charge – the conduct which would be attributed to a corporate entity principal via s 493 in any case – in my view, is fatal.
[76]See e.g. Magistrate’s Reasons [113], summary of Anshuman Sohal’s evidence; Magistrate’s Reasons [119], summary of Indri Sultani’s evidence.
[77]See e.g. Magistrate’s Reasons [144], her Honour’s summary of Muliani Thedger’s evidence.
[78]See e.g. Magistrate’s Reasons [158], her Honour’s summary of Muliani Thedger’s evidence.
In the context of the collective language in which the statement of the offences was framed, the collective language in which her Honour’s conclusions were put, and the absence in the reasons of any link between specific conduct and a specific charge, I am compelled to the conclusion that her Honour approached certain aspects of her reasoning processes from a global perspective. It follows that I am satisfied that her Honour did not afford individual consideration to each element of each of the 111 counts as required.
In reaching this conclusion, I am cognisant that her Honour was confronted with a most unenviable task. The temptation to eschew individual consideration is almost irresistible when a judicial officer is confronted with 111 charges of similar but not identical conduct, where all evidence is cross admissible, and where tendency and coincidence reasoning is potentially open.[79] Nevertheless, it is a temptation that must be avoided. Persons accused of multiple offences are entitled to have each offence scrutinised individually and element by element. This task, in this case, would have been considerably easier if the indictment alleged a sensible number of charges. Prosecuting authorities are expected to use common sense when drawing up indictments, and magistrates, like judges, have the power to sever overloaded indictments into a more palatable form.[80]
[79]Tendency and coincidence notices however were not served in this matter and these types of reasoning were not ostensibly relied upon by the prosecution.
[80]Criminal Procedure Act 2009 s 58.
Section 272(9) of the Criminal Procedure Act 2009 provides that after hearing and determining an appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case to the Magistrates’ Court for rehearing, with or without a direction in law.
I have given a deal of thought as to the further hearing of this matter. I have concluded that I should not remit this matter back to her Honour for further consideration, despite the pragmatic attraction of such a course. Whilst the defect identified in this appeal is confined to her Honour’s reasoning process and not to any findings of fact, should further consideration result in an outcome adverse to the appellant there may well be a perception that the reconstructed reasoning has been designed to meet this defect as opposed to being a fresh individual consideration of each charge.[81]
Conclusions and consequences
[81]See e.g. B.C.S.P v Stirling Properties (No 2) [1984] VR 903, 912.
I am satisfied that her Honour did not afford the requisite individual consideration to the elements of each of the 111 counts.
Pursuant to s 272(9) I order that:
(1)The decisions of the Magistrate be quashed; and
(2)The matters be remitted to the Magistrates’ Court of Victoria, for hearing by a different Magistrate.
Given this outcome, there is no need for me to consider the appellant’s grounds of appeal with respect to sentence.
I will hear the parties as to costs.
Annexure A
Annexure B
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