Lodge v Hrasky - [2002] TASSC 83

[2002] TASSC 83

CITATION: Lodge v Hrasky & Anor [2002] TASSC 83

PARTIES:  LODGE, Eileen Joy
  v
  HRASKY, Peter Jan

LYNCH, Steven

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 8/2002
DELIVERED ON:  9 October 2002
DELIVERED AT:  Burnie
HEARING DATE:  7, 8 October 2002
JUDGMENT OF:  Evans J

Edited Edition of Reasons for Judgment delivered orally

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  G A Richardson
             Respondent:  I M Arendt
Solicitors:
             Applicant:  G A Richardson
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2002] TASSC 83
Number of paragraphs: 22

Serial No 83/2002
File No LCA 8/2002

EILEEN JOY LODGE v PETER JAN HRASKY & STEVEN LYNCH

REASONS FOR JUDGMENT EVANS J

(GIVEN ORALLY) 9 October 2002

The applicant appeals against her conviction on 31 charges of knowingly obtaining the payment of a social security pension for which she was not eligible in breach of the Social Security Act 1991 (Cth), s1347. The charges relate to 31 payments of a disability support pension to the applicant between 23 December 1996 and 25 June 1998.

At the outset of the applicant's trial, she, by her counsel, in substance admitted that during the relevant period: the 31 pension payments which are the subject of the charges were credited to the applicant's personal Trust Bank account; the applicant was in the main employed by and in receipt of income from G A and D R Moore; and the applicant was aware that the earnings she received would have adversely affected her entitlement to a pension.

The applicant's defence was that upon her gaining employment with G A and D R Moore, she cancelled her pension claim and thereafter the pension payments had been paid into her personal bank account without her knowledge. The core issue for the learned magistrate's determination was accordingly whether the applicant had knowingly obtained the pension payments.

The evidence called by the prosecution established the following matters:

·    By letter dated 25 October 1996, Centrelink advised the applicant that it would resume paying her a disability support pension.
·    By letter dated 29 October 1996, in response to an enquiry from the applicant, Centrelink provided her with confirmation that the rate of her pension was $351.80 per fortnight.
·    Within a short time of the resumption of the payment of the pension, the applicant obtained employment with G A and D R Moore, they paid her a week's pay on 29 November 1996 and regular fortnightly payments began on 26 December 1996. Nine fortnightly payments of an after tax amount of about $300, which are the subject of the charges, were paid directly into the applicant's personal Trust Bank account between 23 December 1996 and 17 April 1997.
·    By letter dated 23 April 1997, Centrelink advised the applicant that her pension would stop as from 17 April 1997 because the applicant had "started full time employment" and explained to her that if she stopped full time employment, she should get in touch and payments would start…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lodge v Hrasky

Details

AGLC: Lodge v Hrasky [2002] TASSC 83
Case: [2002] TASSC 83
Decision Date: 9 October 2002

CaseChat Overview and Summary

Eileen Joy Lodge appeals against her conviction on 31 charges of knowingly obtaining the payment of a social security pension for which she was not eligible. The charges relate to 31 payments of a disability support pension to the applicant between 23 December 1996 and 25 June 1998. The legal issues the court was required to decide include whether the applicant had knowingly obtained the pension payments and whether the sentences imposed by the learned magistrate were manifestly excessive. The court found that the applicant had knowingly obtained the pension payments as she had checked the amount of her pension entitlement with Centrelink and was provided with written confirmation of the same. The court also found that the sentences imposed by the learned magistrate were not manifestly excessive. The appeal against conviction is dismissed and the appeals against sentence are also dismissed.

Orders