Millen v Done
[2008] NTSC 7
•11 February 2008
Millen v Done [2008] NTSC 7
PARTIES:MILLEN, Leeanne
v
DONE, Sinead
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 40 of 2006 (20511237)
DELIVERED: 11 February 2008
PUBLISHED: 4 July 2008
HEARING DATE: 20 June 2007
JUDGMENT OF: SOUTHWOOD J
APPEAL FROM: Bradley SM
CATCHWORDS:
CRIMINAL CODE (Cth) – Justices Appeal – appeal against conviction - Commonwealth public official – abuse of public office – whether the magistrate erred in admitting propensity evidence – whether the magistrate erred in directing himself on question of silence of the defendant – whether the magistrate erred by failing to provide adequate reasons for rejection of alternative hypotheses consistent with innocence – whether the magistrate erred in finding that the appellant acted dishonestly – appeal dismissed
Criminal Code (Cth) 1999 – s 142.2(a)(ii) & s 142.2(b)(i)
Evidence Act (NT) 1939 – s 9(3)
M v The Queen (1994) 181 CLR 487; Pfennig v R (1995) 182 CLR 461, applied
Reg v Boardman [1975] AC 421; Harriman v The Queen (1989) 167 CLR 590; Hoch v The Queen (1988) 165 CLR 292; R v McGibbony [1956] VLR 424; Makin v A-G (NSW) [1984] AC 57; Martin v Osborne (1936) 55 CLR 367; R v Mong (2002) 5 VR 565; Weissensteiner v The Queen (1993) 178 CLR 217, referred to
REPRESENTATION:
Counsel:
Appellant:J Truman
Respondent: P Usher
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Commonwealth Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Sou0806
Number of pages: 58
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMillen v Done [2008] NTSC 7
No JA 40 of 2006 (20511237)
BETWEEN:
MILLEN, Leeanne
Appellant
AND:
DONE, Sinead
Respondent
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Published 4 July 2008)
Introduction
On 4 July 2006 the appellant was convicted by the Court of Summary Jurisdiction of the crime of abuse of public office contrary to s 142.2(1)(a)(ii) and (b)(i) of the Criminal Code (Cth) 1999 (the Code). The appellant appealed against her conviction by the Court of Summary Jurisdiction. On 11 February 2007 I dismissed the appellant’s appeal and I stated that I would publish my written reasons for decision at a later date. Following are my reasons for decision.
The case against the appellant in the Court of Summary Jurisdiction was as follows. The appellant’s father is Samuel Baird. During 2002 Mr Baird was receiving the Commonwealth Disability Support Pension and payments of rent assistance from the Australian Government. The continuation of Mr Baird’s payments of rent assistance was subject to an automatic six monthly review and was contingent upon the production of a current duly completed rent certificate that was also signed by his landlord. On 13 May 2002, while the appellant was an employee of the Commonwealth Service Delivery Agency (Centrelink), she accessed her father’s Centrelink computer records and processed an incomplete rent certificate in his name. The rent certificate was incomplete as, among other things, it had not been certified or verified by Mr Baird’s landlord. As a result of the appellant’s actions Mr Baird received one payment of rent assistance of $90.60 on the basis of the incomplete rent certificate.
The respondent’s case against the appellant was entirely based on circumstantial evidence. There was no direct evidence that the appellant accessed her father’s Centrelink computer records and processed an incomplete rent certificate in his name. The fact that the appellant accessed her father’s Centrelink record and processed an incomplete rent certificate was said to be established by evidence that was tendered about the following matters. First, only authorised staff that are employed by Centrelink may access the Computer records of Centrelink’s clients. All authorised staff including the appellant are issued with their own logon ID, a personal identification number (PIN) and a smartcard. In order to access Centrelink’s computer system it is necessary for each member of staff to enter in the computer their logon ID and a password obtained by entering their personal identification number into their smartcard. Secondly, Centrelink’s computer system is capable of producing reports about all accesses to all client records under each member of staff’s logon ID. These reports are known as Customer Record Access Monitor Reports. A report has been generated which shows all accesses that were made to the appellant’s father’s Centrelink computer records under the appellant’s logon ID and a password obtained from her smartcard. The report was tendered in the Court of Summary Jurisdiction as exhibit P7. Thirdly, the report and various related electronic documents show that on 13 May 2002 the appellant’s father’s entitlement to payments of rent assistance was reassessed on the basis of the incomplete rent certificate, which was tendered in evidence, and that all computer entries and electronic documents that were necessary to complete the reassessment of Mr Baird’s payments of rent assistance were made and created under the appellant’s logon ID and a password obtained with the use of the appellant’s personal identification number and smartcard.
The grounds of appeal
The grounds of appeal are as follows:
1.The trial magistrate erred in admitting propensity evidence.
2.The trial magistrate erred in directing himself on the question of the silence of the defendant.
3.The trial magistrate erred in failing to provide any or adequate reasons for rejecting a number of alternate hypotheses consistent with the innocence of the appellant.
4.The trial magistrate erred in finding that the appellant acted dishonestly.
5.The verdict was unsafe and unsatisfactory.
Section 142.2 of the Code
An employee of the Australian Public Service is guilty of an offence if the employee engages in any conduct in the exercise of the employee’s duties as an Australian public servant with the intention of dishonestly obtaining a benefit for another person: s 142.2(1)(a)(ii) and (b)(i) of the Code. Dishonest means dishonest according to the standards of ordinary people and known by the employee to be dishonest according to the standards of ordinary people: s 130.3 of the Code.
For the appellant to be convicted of the offence with which she was charged the respondent had to prove the following elements of the offence beyond reasonable doubt:
1.The appellant was an employee of the Australian Public Service.
2.In her capacity as an employee of the Australian Public Service, the appellant accessed John Samuel Baird’s Centrelink records and processed an incomplete rent certificate in his name (the conduct);
3.At the time the appellant engaged in the conduct, the appellant meant to obtain a benefit for John Samuel Baird, namely the continuation of his payments of rent assistance when the payments may otherwise have been stopped;
4.The conduct in which the appellant engaged was dishonest according to the standards of ordinary people; and
5.The appellant knew that the conduct in which she engaged was dishonest according to the standards of ordinary people.
The Reasons for Decision of the Presiding Magistrate
The trial magistrate gave the following reasons for finding the appellant guilty of the crime of abuse of public office:
This is a case [in which] Ms Millen has been prosecuted by the Commonwealth under the Commonwealth Criminal Code. She is charged with an offence contrary to s 142.1 of the Code, that as a Commonwealth public servant she acted in a way that provided a benefit to her father and that she did so dishonestly.
Counsels are agreed as to the elements of the offence, although they have used slightly different words in their written submissions. The Commonwealth’s submission is that on 13 May 2002 the defendant was a Commonwealth public official and she intentionally engaged in conduct, that she did access her father’s Centrelink record and she did process a rent certificate and she did so dishonestly obtaining a benefit.
Defence counsel, who specifically said that the prosecution submission as to the elements of the offence are agreed to, states that the relevant elements of the offence are that the defendant intentionally accessed her father, John Baird’s, Centrelink record and the defendant processed a rent assistance certificate which was incomplete and the defendant engaged in this conduct with the intention of dishonestly obtaining a benefit for another, namely John Baird.
There were a number of agreements between the parties. They are listed at page 2 of the prosecution submissions. There are a number of agreed facts. The agreed facts which I think are principally relevant for the purpose of my reasons are as follows. Ms Millen is the person in the information. The defendant’s parents are John Samuel Baird and Philomena Joy Baird. The defendant’s role within Centrelink from about 10 June was as an indigenous customer service officer with the Top End Remote Services Team. That seems to me to be an admission that the defendant was a Commonwealth employee, although the admitted fact does not specifically state that the defendant was a Commonwealth employee. No issue was ever really taken on that matter in the proceeding, but in so far as it is necessary I find that the defendant was a Commonwealth employee. It was also agreed that the Centrelink customer reference number for John Baird was a specific number being the number that was on the various records known as CRAM reports.
The [prosecution’s] case is based largely on circumstantial evidence. During the defence case it was pointed out that there is no direct evidence that Ms Millen accessed her father’s account. I am constantly mindful that the prosecution carries the entire burden of proof to the requisite standard. I am also mindful that I must carefully test the evidence and also be satisfied that all other reasonable hypotheses [consistent with innocence] have been excluded.
There is some general law that I have been referred to. I have had a look at R v Doney and R v Shepherd; and at some statements in East v The Repatriation Commissioner about the concept of alternative hypotheses being fanciful or not fanciful.
In this case, as with some other prosecutions, the Crown has relied on other behaviour of the defendant as part of the circumstantial case. I made a ruling to receive the similar fact evidence, which tends to show that the defendant had on other occasions accessed information files about [her] relatives. Such access may or may not have been in accordance with the Public Service Code of Practice, but I do not and would not conclude that they were unlawful or criminal acts and I note that was never alleged by the Crown.
The evidence is probative only of the defendant’s propensity to access relatives’ files and it too is circumstantial in nature. In receiving the evidence I do so conscious that it does not prove the offence with which the defendant is charged. It does not assist my determining whether on the occasion charged there had been some unusual event which might explain innocently the occurrence that occurred. In other words, I am saying that I still look at the options that might innocently explain the events on the day, notwithstanding that there is independent evidence showing that the defendant from time to time appears to have accessed the records of her relatives which was contrary to the policy of the Department.
In looking at those tests in relation to those matters I am conscious of a number of cases referred to in Ross on Crime, Makin v The Attorney General; Pfennig v R, which was referred to me by counsel, and Hoch v R. I did have a quote from the latter case that I intended to refer to, which I do not have with me, that specifically looked at some of the issues that I was considering in relation to how to apply the evidence but unfortunately I cannot give it to you.
There has been a lot of evidence in this case from prosecution witnesses. Indeed the only evidence that I have received is from prosecution witnesses. All of them were past or present employees of the Commonwealth. I assess and accept the Crown submission that they were all truthful witnesses and I accept their evidence as being truthfully given. I do not think that the defence ever really contested the truthfulness of the witnesses, although some of their recollections were tested from time to time and some of their attitudes to the likelihood of the events might have been tested and indeed the evidence showed that there were some odd occasions or events which the defence would say might explain innocently the occurrence that occurred on another occasion.
The defendant did not call evidence, as is her right, and I draw no conclusions from the defendant’s decision not to give evidence. The prosecution must still satisfy me that all rational explanations are negatived. The defence decision not to give evidence means only that there is no evidence perhaps to support an argument, or any alternative explanation, that might be consistent with innocence. It seems to me that notwithstanding – so what I am trying to say here is that the Crown evidence must satisfy me, and I only have the Crown evidence, I do not have any other evidence to positively assert an innocent explanation that might otherwise excuse the defendant from the behaviour.
The evidence as it came out through over 10 witnesses really consisted of an explanation of the Department, its organisation and its processes. The defendant is placed in that organisation and a history of employment and knowledge of the way in which the Department worked. The evidence also consisted of a detailed explanation of the computer records as they related to the defendant’s access to the Department and to specific entries to relatives of the defendant.
I do not think it is necessary to detail all of the evidence that was given over the four days. It is not my intention to do so. It is apparent to me from that evidence there is a reasonably secure system in place to ensure that all operator entries on the system are signed off, as it were, in a technological way, as in contrast to the old days when it was handwritten and signed in the hand of the person [who made the entry]. It is a new world and this tracing of operations is the only way in which the Department can indicate or find out who was responsible in certain events.
The evidence I received indicated that the defendant had an ID or an identity, M0I. This from the evidence, I am satisfied was probably known to some if not a considerable number of other members of the Department, although there was some indication that the telephone list had the wrong identity on it, it had MOI instead of M0I or perhaps the opposite way around. In any event, it would be unsafe to form a conclusion that that record was not known.
The offender also had a PIN which was explained to me to operate a bit like a bank PIN, something that is private to the person, and would only be known to other persons if she had voluntarily given it out. There was no evidence that she gave it out. There was no evidence that she did not give it out. The only evidence I have is that it is meant to be something that is kept private to the individual.
There was evidence that the defendant also had an object called a SMART card which was designed for her sole use that provided a unique number to enable entries into the system at any particular time. So that it is a triple security stage, as it were, to enable the computers to know who is operating the system. I am satisfied that in the absence of some fraudulent cooperation there was no reasonable likelihood for one person to be able to log onto the system under the name of another user.
The evidence was that the system would lock itself off if it was not used for a 10 minute period. It seems therefore that the only two probable or possible ways for a third party to simulate the actions by that authorised user would be upon being requested by the user to come and complete the process on her computer in her name, something which has been put to me on behalf of the defendant that happens from time to time. Secondly, a person, perhaps seeing an unattended screen, and deciding in that 10 minute gap to enter the screen contrary to Departmental policy to carry out some functions which would have been inappropriate given the protocols of the Department.
Given the admitted facts, which, as I say, were told to me at the beginning and listed in the Crown submissions, taking those facts, plus the security precautions generally, of which there was a considerable amount of evidence, and the evidence that the defendant had access to family files on a significant number of occasions, these entries were not really contested by the defendant, although they were not admitted and taken as a whole it seems to me unlikely to be explainable that she did not make at least some of those entries, if not the majority of them. It just seems to me that there were too many of them to have been all explainable by some third party fraudulently or erroneously using the defendant’s logon particulars.
Given, thirdly, the general tenor of the evidence as to the strict procedures in place to deal with relatives files, and I accept that evidence, there were guidelines regarded as serious guidelines and I find also that the defendant must have been aware of them at the time. Indeed she made some comments to that effect in the correspondence. But I do not rely on that. I rely on the general evidence to find that in turn that she had been in the Department a very considerable period, she knew or must have known about those things and then to act in the role of a supervisor it is inexplicable to me that a person would not know one of the basic functions or rules of the organisation.
Fourthly, taking account of the procedures required to revalidate rent subsidies to prevent its automatic expiry. In other words, looking at that system overall for rent assistance payments to be continued until they come up for a review period and then certain things having to be done, it seems to me, looking at those procedures, something positive has to be done by somebody to ensure the ongoing payment.
Given fifthly, the length of the defendant’s service in the Department, her promotions and the varied roles that she had played, indicate a [competence] sufficient – indicates to me a [competence] sufficient to carry out the conduct complained of.
Sixthly, the computer records which were tendered in evidence and received, which identified the process by which the document, the subject of the charge, was created, indicate to me that the access could not have been accidental. In other words, the to-ing and fro-ing from various sections of the records could not have been accidental.
The evidence about the relevant document appears to indicate – and whilst one would not take it as a proven fact if it was the sole subject of the charge, but it indicates the document did not go through the usual channels and it was not received and marked in the usual way. It did not have the note that would otherwise indicate that it was received separately over the counter and such things indicate to me that the document was received and processed or was likely to have been received and processed in an unusual manner.
Eighthly, the incomplete nature of the document was such that it would, on the evidence given to me – and there is no evidence to the contrary –should and would never likely to have been processed by an operator. There is not just a single irregularity with the document; there are several irregularities on the document such that all people who gave evidence indicated that the document would not have been processed.
Ninthly, it seems to me that the document clearly identified the defendant’s father’s name at the top of the document and it would be impossible, in my estimation, for the defendant to have that document in front of her and to start the process without realising it was her father’s. And it seems to me that it is so unlikely as to be fanciful that she would process the document without realising she was dealing with her own father. The particulars and the accounts and the names are all obvious on the document. It is apparent to anyone picking that up who the identity of the person was and particularly obviously it was apparent to the defendant. In such circumstances an accidental commencement – even an accidental commencement of the process of registering the document – seems to me to be unlikely.
As I said earlier, [the fact that] there was a long sequence of entries into the various records with the file also would negate against any accidental entry. And there are – a long list of supposed – some things that would have to be the case if there were any innocent dealings with the record that were identified in paragraph 23 of the Crown submissions. Most of which seem to me to carry some weight but not all.
I have carefully considered all of the submissions that have been put to me by defence counsel and I have carefully weighed them against the test that I have identified in the case at the beginning of these reasons. And while there is and clearly Counsel was successful obtaining evidence that staff were using other persons IDs in certain situations, it seemed to me that the evidence in relation to that was limited wholly or almost wholly to work done out in the community situation where sometimes there were difficulties getting into the computer, the central computer from remote sites.
Counsel was also successful obtaining evidence which indicated that officers were unable to exclude persons unauthorised – sorry, using someone else’s computer during the 10 minute timeframe when they were not authorised to do so. So while it was not excluded and there was some mention of it happening once in Kununurra, it seems to me to be a highly unlikely event that someone would deliberately come on and use another person’s computer and sign off in a way that was done in this case.
There is to my mind therefore no real rational explanation why anyone other than the defendant obtained this document, processed it and processed it on an incorrect ID. That is that someone else would have done it other than the defendant and on someone else’s computer. I am forced therefore to conclude that the only rational conclusion is that the defendant intentionally processed a rent certificate. That is enough to satisfy the charge. I need also to determine that she did so dishonestly with the intention of delivering a benefit or actually providing a benefit to her father.
On the evidence I am satisfied that the defendant knew that you should not access relatives accounts, that the document was not complete and would not be processed by another operator. Thirdly, that she knew the rent [assistance] would be discontinued unless the rent certificate was processed and the block cleared. So given those three facts I am satisfied that she carried out the procedure with this knowledge and therefore that it was carried out dishonestly as defined. That is, as defined in terms of the ordinary person’s view as to the appropriateness of that behaviour.
I should make it clear that like some of the witnesses before me, I [also] thought that the rent sounded rather higher than usual for the premises and location. That forms no part of my reasoning in this case. It seems to me that would be an incorrect finding to make sure that that was one of the things. It was the other issues about the rent document and its incomplete nature specifically having no certificate at all by the landlord that would make it unable to be processed.
Also I should say that the amount of the rent certificate is not in issue here. I have been told and I have no reason to doubt that the rent assistance continued both before and after this event. The issue is the continuance of it when the proper processes should have been followed and would have required one or two things to happen, either for the rent assistance to be cancelled for a time or for further enquiries to be made to enable the rent assistance to be continued.
I am satisfied too that the benefit continued to be paid when it ought not to be and that the benefit was a benefit received and that it was at least the defendant’s intention at the time she entered the record and completed the document that was done. In all those circumstances it seems to me inevitable that I must and do so find the defendant guilty as charged.
In his Reasons for Decision the trial magistrate dealt with the following matters: the elements of the charge against the appellant; the admitted facts; the circumstantial nature of the respondent’s case against the appellant; the necessity for the respondent’s evidence to exclude any reasonable alternate hypothesis that was consistent with the innocence of the appellant; the evidence (mainly computer reports known as “CRAM”) about the other accesses that had been made to Centrelink’s computer records and files of the appellant’s relatives under the appellant’s logon ID; the credibility and reliability of the witnesses called to give evidence by the respondent; the effect of the appellant’s election not to give evidence; the extent of the evidence given by the witnesses called by the respondent; the security system that Centrelink had in place to ensure that all operator entries into Centrelink’s computer system were signed off; the evidence about the appellant’s logon ID, PIN and smartcard; the possible means of access to Centrelink’s computer system with the use of another member of staff’s logon ID; the intermediate steps that his Honour found had been established by the evidence and on which he relied to find that the only rational conclusion was that the appellant had intentionally processed her father’s incomplete rent certificate and to exclude all other alternate hypotheses; and, the intermediate steps that his Honour found had been established by the evidence and on which he relied to find that he was satisfied that the appellant processed the incomplete rent certificate dishonestly with the intention of delivering a benefit to her father. Although a number of steps in the trial magistrate’s Reasons for Decision were based on an accumulation of evidence, his Honour appears to have reached the conclusion that the appellant was guilty of the charge against her on a step by step or sequential basis.
The trial magistrate’s finding that the only rational conclusion was that the appellant intentionally processed her father’s incomplete rent certificate and that all other alternate hypotheses consistent with innocence were excluded was based on the following intermediate steps: a finding that there were two ways in which another member of staff could reasonably access Centrelink’s computer records under the appellant’s logon ID – the appellant calling for another member of staff to assist her after she had logged on to her computer; and, someone opportunistically using the appellant’s computer after she had logged on and left her computer unattended and before the 10 minute automatic lock out of the appellant’s computer screen occurred; acceptance of the admitted facts; acceptance of the evidence about the security precautions which Centrelink had adopted; a finding that the appellant had accessed the Centrelink computer records of her relatives on a significant number of other occasions; acceptance of the evidence that there were strict procedures in place that prohibited employees from accessing their relatives computer files; a finding that the appellant was aware of the procedures that prohibited employees dealing with their relatives files; a finding that there were review procedures in place that required the clients of Centrelink who were receiving rent assistance to take positive steps in order to revalidate their rent assistance and avoid the automatic expiry of their rent assistance; a finding that the appellant had sufficient competence to undertake and complete the computer entries that are the subject of the charge; a finding that the processing of the incomplete rent certificate could not have been accidental; a finding that the incomplete rent certificate did not go through the usual channels; a finding that the incomplete rent certificate was so incomplete that it would not have been processed by another operator employed by Centrelink; a finding that the incomplete rent certificate clearly identified the appellant’s father as the relevant Centrelink client and that it would be apparent to anyone picking up the rent certificate including the appellant that the incomplete rent certificate related to the appellant’s father; and a finding that there could not have been an accidental commencement of the processing of the document.
The Principle Issues in the Court of Summary Jurisdiction
By way of background to the consideration of the appellant’s grounds of appeal it is useful to examine a number of the principal issues that arose during the trial in the Court of Summary Jurisdiction.
The first issue was whether there was a reasonable possibility that another member of staff could have accessed Centrelink’s computer system and processed the appellant’s father’s incomplete rent certificate under the appellant’s logon ID. The evidence before the Court of Summary Jurisdiction was that all operator entries on Centrelink’s computer system were logged off under a particular logon ID. Each member of staff was allocated their own logon ID, a personal identification number (PIN) and a smartcard. The logon IDs of members of staff were not confidential but their personal identification numbers were confidential. In order to access Centrelink’s computer system each member of staff would ordinarily turn their computer on and then type in their logon ID and a password that was obtained by entering their personal identification number into their smartcard. Staff would be locked out of their computers after a period of 10 minutes of inactivity. To access their computers again after they were locked out staff would have to again type in their logon ID and a new password obtained by again entering their personal identification number into their smartcard. The appellant was assigned her own logon ID. It was M0I. She also had her own personal identification number, which operated in a similar way to a bank PIN, and her own smartcard which was designed for her sole use. To access the Centrelink computer system the appellant had to type in her logon ID and a password which she obtained by entering her personal identification number into her smartcard. The Centrelink security system is a three stage system which enables the system to identify the computer records that have been accessed with the use of each particular logon ID at each point in time.
There were theoretically three ways in which somebody could access Centrelink’s computer system under the appellant’s logon ID. First, a member of staff could ask the appellant to tell them the appellant’s personal identification number and to provide them with the appellant’s smartcard. Secondly, a member of staff could with the consent of the appellant or at the request of the appellant, use the appellant’s computer after the appellant had logged on and before the appellant was locked out. Thirdly, another member of staff could opportunistically access the appellant’s computer after the appellant had logged on to her computer but was absent from her computer and during the 10 minute period before lock out.
The trial magistrate rejected the first method of access under the appellant’s logon ID on the basis that there was no evidence that the appellant had given her personal identification number and smartcard to anyone. There was no evidence of any fraudulent cooperation. In my opinion it would have been bizarre for the appellant to have given another person her personal identification number and smartcard to process her father’s rent certificate when the other member of staff would have been perfectly capable of undertaking such a task with their own logon ID, personal identification number and smartcard.
His Honour rejected the second method of access to Centrelink’s computer system under the appellant’s logon ID on the basis no other member of staff would process the rent certificate because it was incomplete and the rent certificate had not been verified by the appellant’s father’s landlord. His Honour found that the incomplete nature of the recent certificate was such that it would not have been processed by an operator. It may be inferred that his Honour may have been of the view that while there may be a possibility of another member of staff using the appellant’s computer to assist a relative of the appellant with a legitimate enquiry they would not assist them in such a fashion with an illegitimate inquiry. The trial magistrate also found that while such uses of another persons logon ID had occurred previously, such uses of another person’s logon ID were limited almost wholly to work done out in the community situation where sometimes there were difficulties getting into the central computer from remote sites.
His Honour rejected the third method of access on the basis that it was fanciful. He found that while such accesses could not be totally excluded and while there was evidence of such an access having occurred once in Kununurra, it was highly unlikely that someone would deliberately use another person’s computer under their logon ID in their absence and sign off in the way that it was done in this case.
The second principle issue was whether accesses that were made to the appellant’s father’s Centrelink records on 13 May 2002 were intentional? The trial magistrate concluded that the processing of the incomplete rent certificate was deliberate because Centrelink had established a periodic review procedure for payments of rent assistance whereby the payment of rent assistance would be stopped automatically unless positive steps were taken to prevent the payment of rent assistance being discontinued. Something positive had to be done to ensure ongoing payments of rent assistance. His Honour found that the to-ing and fro-ing from the various sections of the records could not have been accidental. There was a long sequence of entries into various computer records which revealed the steps that were undertaken in order to avoid an automatic cut off of payments of rent assistance to the appellant’s father. These entries included the creation of an electronic document on 13 May 2002 which recorded that a rent certificate had been received.
The third principle issue was whether there was a reasonable possibility that the appellant could have inadvertently processed her father’s incomplete rent certificate? The trial magistrate found that the incomplete rent certificate could not have been processed inadvertently or accidentally because it was abundantly clear that the rent certificate was the appellant’s father’s rent certificate and that the rent certificate was an incomplete certificate. His Honour found that the incomplete rent certificate clearly identified the appellant’s father’s name at the top of the document and that it would be impossible for the appellant to have that document in front of her and start to process it without realising that it was her father’s rent certificate. The particulars and the accounts and the names are all obvious on the document. His Honour further found that there was not just a single irregularity in the rent certificate. There are several irregularities. Even an accidental commencement would be unlikely.
Ground 1 – the trial magistrate erred in admitting propensity evidence
The first ground of appeal is that the trial magistrate erred in admitting into evidence three Customer Record Access Monitor Reports and associated documents which relate to the accesses (other than the access that was made on 13 May 2002) that were made to the Centrelink computer records of the appellant’s father, the appellant’s sister, Bridget Anne Murdoch (nee Baird), and the appellant’s brother, John Ahmat Baird under the appellant’s logon ID. The documents were admitted into evidence as exhibits P7, P7A, P8 and P9.
A Customer Access Monitor Report is a report that is produced by the security monitoring system that Centrelink has installed in its computer system. The reports show the time that each record was accessed, the duration of each access, the time when the access ceased and any activity that was undertaken by the person who accessed the records during the relevant period. The security monitoring system was established for quality assurance purposes and to monitor whether a member of staff who has accessed a client’s Centrelink computer records had authority to do so.
The evidence shows that between 1 August 1996 and 7 February 2003 the appellant’s father’s and siblings’ Centrelink computer records were accessed on more than 30 occasions under the appellant’s logon ID and a password obtained with the use of the appellant’s personal identification number and smartcard. The appellant’s father’s records were so accessed on five occasions. The appellant’s sister’s records were so accessed on 21 occasions and the appellant’s brother’s records were so accessed on 10 occasions. During the year 2002 the appellant’s father’s and siblings’ Centrelink computer records were accessed on nine occasions under the appellant’s logon ID. On five occasions including the occasion which was the subject of the charge against the appellant the accesses involved the creation of an electronic document by the person who accessed the computer records with the use of the appellant’s logon ID and a password obtained with the use of the appellant’s personal identification number and smartcard.
The respondent tendered the evidence contained in exhibits P7, P7A, P8 and P9 to establish – the context of the appellant’s offending, that it was the appellant who accessed her father’s Centrelink computer records on 13 May 2002, that the conduct of the appellant on 13 May 2002 was intentional, and that the appellant had the capacity to undertake the computer activities that were performed with the use of the appellant’s logon ID on 13 May 2002; and, to rebut – any assertion that the access on 13 May 2002 was inadvertent or accidental, and any assertion that it was someone other than the appellant who accessed the appellant’s father’s Centrelink computer records on 13 May 2002 as alleged.
On 3 May 2006, counsel for the respondent made the following submissions to the trial magistrate about the evidence contained in exhibits P8 and P9:
The prosecution seeks to lead evidence of accesses that the defendant, Ms Millen, is alleged to have made into the customer records of her other relatives both prior to and subsequent to the charge. I must make it clear at the outset, as I feel that this is the basis of my friend’s objection, that the records are not being led for any propensity or tendency purpose.
The purpose of adducing the evidence is to establish a context for the offending; to establish [facts] in issue, that is, that they were intentional acts and that they were the acts of the defendant; and also in anticipation of rebutting any assertion that may be made in her own defence by the defendant, that the access was inadvertent or mistaken. [The evidence] is not evidence of uncharged acts [it is] not being led to show bad character and [it is] not being led for a tendency or propensity purpose. I will not be inviting the court to conclude that because Ms Millen did it before, she did it again.
This is a circumstantial case and that the evidence is adduced because it supports the inference, in my submission, in a circumstantial case, that it was the defendant who accessed the record on the occasion charged on 13 May 2002, which is a fact in issue. [The evidence renders] it inherently improbable that [another] person was responsible for accessing John Baird’s record at the time of the alleged offence and under the circumstances in which that record was accessed.
In support of my submission as to its admissibility I refer to the comments of Brennan J in Harriman v R (1989) 167 CLR 590 at 594, where his Honour says:
… where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible.
Now as I stated some minutes ago, the evidence is not being tendered to show uncharged acts or bad character and I submit that it is a matter, upon hearing the evidence, for your Honour to determine whether that evidence is probative of the offence charged or the fact in issue.
I also refer to the comments of his Honour Dixon J in the case of Martin v Osborne (1936) 55 CLR 367 at 375 where his Honour states:
If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. [The application of this, as of any other general statement about relevancy is subject to the well-known specific rules of exclusion.]
I also briefly refer the court to the decision of R v Mong [2002] VSCA 203. I won’t go into detail but I note this was a drug matter, a trafficking in heroin case were evidence was admitted of prior conversations. In this case they are uncharged acts which were adduced by the prosecution in order to prove a subsequent commission of the same offence. I notice in the head note that the court was of the view that allowing that evidence provided a more realistic context in which to assess the allegations that the accused supplied the same purchaser with heroine on the occasion particularised in that charge. Given due warnings, which I would ask your Honour to give yourself in this regard, … [it is] just to admit the evidence, notwithstanding its prejudicial effect. … I would submit that after duly warning yourself, having heard the evidence, considering the circumstantial nature of the case and the underlying probity of that evidence, it would then be a matter for your Honour to determine whether that evidence was to be admitted.
When asked by the trial magistrate on 15 June 2006 if the evidence supported the prosecution case on the basis of propensity, counsel for the respondent stated:
Well no, not exactly. It’s a circumstantial case, and all inferences are open in a circumstantial case. And it’s my submission that these accesses may render inherently improbable that any other person was responsible for accessing John Baird’s record at the time of the alleged offence and under the circumstances in which that record was accessed. It’s not simply being admitted to say, oh well the defendant’s done it before so he must have dome it on this occasion, that’s not the case at all. The case is that it’s been raised and I think it’s abundantly clear that it’s raised; the defendant may be raising the defence that somebody else did it. So it’s not to prove that she did it on this occasion, it’s to rebut the assertion that [somebody else did it and to establish] that it is inherently improbable that somebody else did do it on the occasion on which she has been charged.
…
… So the fact that the defendant’s logon appears in relation to the accesses of her relatives’ records, tends in my submission to make it objectively improbable that any other person was responsible for making that access to her father’s records on the occasion charged. The evidence is not sought, as already indicated, to be admitted for the purpose of simply saying well the defendant [has done it before she will do it again]. As I said, it goes to the issue of whether the court can accept, as reasonable, as probable, which in my submission it [cannot], that [another] person was responsible for accessing [the defendant’s] father’s record.
The appellant objected to the tender of the evidence contained in exhibits P7, P7A, P8 and P9 at the trial in the Court of Summary Jurisdiction on the ground that the evidence was mere propensity evidence which was highly prejudicial. Further, it was said that other than the evidence of the five occasions on which an electronic document had been created no detailed evidence was led about the other accesses of the appellant’s relatives’ Centrelink computer records. To be admissible the evidence had to comply with the principles enunciated by the High Court in Pfennig v R (1995) 182 CLR 461 and all of the accesses to the appellant’s relatives’ computer records must be proven beyond reasonable doubt. It was submitted that the prosecution had not shown any striking similarity or unusual feature about these entries. All of the other occasions of computer access on which an electronic document was created involved the person who had accessed the appellant’s relatives’ Centrelink computer records speaking to the various relatives and making an entry about what was discussed.
Having listened to both arguments the trial magistrate stated as follows:
Well I have listened to both of those arguments. I think that the end result I have reached is a conclusion that the documents are admissible. There are some matters about which I will positively remind myself at the time and no doubt I will be urged by Mr Bryant to remind myself as to what they cannot be used for. But there are a number of things that the evidence can be used for, that is, to show that essentially [an identifiable machine] or someone using the specific logon accessed those accounts. It can show that there is a frequency over a long period of time and it can show in each case what happened on those occasions. In other words, whoever did it; what happened on those occasions; and it may or may not, I’m not sure yet, be allowable to prove or disprove some assertions, for example, made by the defendant in her correspondence or what she might assert in her defence when she takes the stand.
So with those warnings to myself as to the extent to which they could be used, I propose to admit the documents …
The trial magistrate went on to say that:
Subject to any further submissions at the end, I think that it is fair to say that for the time being I adopt … Mr Bryant’s submission that they do not show a propensity to commit offences. They only show that someone has accessed these accounts with that logon.
In his reasons for finding that the appellant was guilty of the offence charged, the trial magistrate stated that:
In this case, as with some other prosecutions, the Crown has relied on other behaviour of the defendant as part of the circumstantial case. I made a ruling to receive the similar fact evidence, which tends to show that the defendant had on other occasions accessed information files about [her] relatives. Such access may or may not have been in accordance with the Public Service Code of Practice, but I do not and would not conclude that they were unlawful or criminal acts and I note that was never alleged by the Crown.
The evidence is probative only of the defendant’s propensity to access relatives’ files and it too is circumstantial in nature. In receiving the evidence I do so conscious that it does not prove the offence with which the defendant is charged. It does not assist my determining whether on the occasion charged there had been some unusual event which might explain innocently the occurrence that occurred. In other words, I am saying that I still look at the options that might innocently explain the events on the day, notwithstanding that there is independent evidence showing that the defendant from time to time appears to have accessed the records of her relatives which was contrary to the policy of the Department.
In looking at those tests in relation to those matters I am conscious of a number of cases referred to in Ross on Crime, Makin v The Attorney General; Pfennig v R, which was referred to me by counsel, and Hoch v R. I did have a quote from the latter case that I intended to refer to, which I do not have with me, that specifically looked at some of the issues that I was considering in relation to how to apply the evidence but unfortunately I cannot give it to you.
His Honour further stated:
Given the admitted facts, which, as I say, were told to me at the beginning and listed in the Crown submissions, taking those facts, plus the security precautions generally, of which there was a considerable amount of evidence, and the evidence that the defendant had access to family files on a significant number of occasions, these entries were not really contested by the defendant, although they were not admitted and taken as a whole it seems to me unlikely to be explainable that she did not make at least some of those entries, if not the majority of them. It just seems to me that there were too many of them to have been all explainable by some third party fraudulently or erroneously using the defendant’s logon particulars.
The trial magistrate did not make a specific finding that the appellant accessed her relatives’ Centrelink computer records on any of the other four occasions that an electronic document was created by the person who accessed the appellant’s relatives’ Centrelink computer records under her logon ID.
His Honour then took into account the other factors which I have referred to in par [9] before concluding that:
I have carefully considered all of the submissions that have been put to me by defence counsel and I have carefully weighed them against the test that I have identified in the case at the beginning of these reasons. And while there is and clearly Counsel was successful obtaining evidence that staff were using other persons IDs in certain situations, it seemed to me that the evidence in relation to that was limited wholly or almost wholly to work done out in the community situation where sometimes there were difficulties getting into the computer, the central computer from remote sites.
Counsel was also successful obtaining evidence which indicated that officers were unable to exclude persons unauthorised – sorry, using someone else’s computer during the 10 minute timeframe when they were not authorised to do so. So while it was not excluded and there was some mention of it happening once in Kununurra, it seems to me to be a highly unlikely event that someone would deliberately come on and use another person’s computer and sign off in a way that was done in this case.
There is to my mind therefore no real rational explanation why anyone other than the defendant obtained this document, processed it and processed it on an incorrect ID. That is that someone else would have done it other than the defendant and on someone else’s computer. I am forced therefore to conclude that the only rational conclusion is that the defendant intentionally processed the rent certificate. That is enough to satisfy the charge. I need also to determine that she did so dishonestly with the intention of delivering a benefit or actually providing a benefit to her father.
It is apparent that the trial magistrate was satisfied beyond reasonable doubt that the appellant accessed her relatives’ Centrelink computer records on a significant number of occasions.
On appeal the appellant essentially relied on the same arguments about the inadmissibility of exhibits P7A, P8 and P9 that were made in the Court of Summary Jurisdiction.
First, the appellant submitted that the evidence was propensity evidence which was inadmissible because it did not meet the test required to be met for its admissibility in accordance with the decision of Mason CJ, Deane and Dawson JJ in Pfennig v R (1995) 182 CLR 461 at 483 to 485. Their Honours stated that:
There has been a tendency to treat evidence of similar facts, past criminal conduct and propensity as if they each raise the same considerations in terms of admission into evidence. The difficulty is that their probative value varies not only as between themselves but also in relation to the circumstances of particular cases. Thus, evidence of mere propensity, like evidence of a general criminal disposition having no identifiable hallmark, lacks cogency yet is prejudicial. On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words that there is no reasonable view of the evidence consistent with the innocence of the accused. In stating the question in that way, we point out, as Lord Cross of Chelsea suggested in Boardman(64), that the purpose of the propensity evidence is to establish a step in the proof of the prosecution case, namely, that it is to be inferred, according to the criminal standard of proof, that the accused is guilty of the offence charged. Accordingly, the admissibility of the evidence depends upon the improbability of it having some innocent explanation in the sense discussed.
Acceptance of the statement of principles stated above means that striking similarity, underlying unity and other like descriptions of similar facts are not essential to the admission of such evidence, though usually the evidence will lack the requisite probative force if the evidence does not possess such characteristics. What is more, that approach conforms with the approach that now exists in the United Kingdom, Canada and New Zealand.
In Harriman v The Queen, Dawson J pointed out (65):
“In the past, evidence of a criminal propensity to commit crime in general, or a particular kind of crime, appears to have been regarded as inadmissible because it was thought to be purely prejudicial, and therefore irrelevant, rather than relevant but excluded because of its prejudicial nature. Upon this basis it was said that it became admissible only if some relevance could be shown beyond the propensity itself.”
His Honour observed that although this view had drawn some support from Lord Herschell’s statement in Makin that view had given way in Reg v Boardman to the opinion that Lord Herschell was pointing (66) “to the high degree of relevance required to render propensity evidence admissible rather than to the requirement of relevance of a different kind”. That is how Lord Goddard LCJ had stated the law in Sims when his Lordship said (67): “Evidence is not to be excluded merely because it tends to show the accused to be of a bad disposition, but only if it shows nothing more.” What his Lordship was insisting on was that the evidence of bad disposition should also have some “specific connexion” with the commission of the offence alleged. That is because, as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect. So the evidence of propensity needs to have a specific connexion with the commission of the offence charged, a connexion which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it. However, as we have already said, the criterion of probative force as against prejudicial effect and thus of admissibility is that deriving from Hoch.
The role of the trial judge in admitting propensity evidence Once that criterion of admissibility is accepted, it is apparent that the trial judge is required to discharge is an important responsibility. That point was made by the Supreme Court of Canada in Reg v B. (C.R.) (68) where it was accepted that the process of balancing the probative value of the evidence against its prejudicial effect was a delicate one. But the trial judge, in making that judgment, must recognise that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances. More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.
Secondly, the appellant argued that the evidence was inadmissible because the other accesses to the appellant’s relatives’ Centrelink computer records were not of striking similarity and there was no underlying unity, system or pattern in those accesses.
Thirdly, the appellant argued that there was no evidence before the trial magistrate which proved beyond a reasonable doubt that those other computer accesses had been committed by the appellant. The only evidence that implicated the appellant was the fact that the appellant’s relatives’ Centrelink’s computer records had been accessed on all of these occasions under the appellant’s log on ID. The appellant submitted that there was evidence before the Court of Summary Jurisdiction which established that if the appellant left her terminal without logging off, there was a ten minute window during which another member of staff could use the appellant’s terminal before the terminal would automate a lock out. Further, if the other member of staff accessed the appellant’s computer terminal during the ten minutes before a lock out was automated, then the automatic lock out would not occur and the member of staff could use the appellant’s terminal to access Centrelink client records for as long as they liked or at least until the appellant returned to her terminal.
According to the appellant a number of prosecution witnesses gave evidence that on occasion members of staff did use another person’s terminal after the other person had logged on. Two prosecution witnesses gave evidence that it was the practice of members of staff to leave their computers unattended from time to time while the computers were unlocked.
The appellant argued that as the evidence of the other accesses was also circumstantial it could only be admitted into evidence if all other hypotheses that were reasonably consistent with the appellant’s innocence were excluded. All other reasonable hypotheses were not excluded on the evidence that was before the Court of Summary Jurisdiction. There was an innocent explanation available on the evidence. In this regard the appellant referred to the evidence of Mr Kirby. He gave evidence that, apart from physically catching someone else using the appellant’s logon ID and password, he could not exclude the possibility that someone else other than the appellant may have made entries into the system using the appellant’s logon ID. There were also the appellant’s statements that were contained in her emails that were tendered as exhibit P13 during the evidence of Gregory John Clatworthy, to the effect that the appellant allowed other persons to use her computer.
In my opinion, contrary to the submissions of the appellant, the evidence of the other accesses to the appellant’s relatives’ Centrelink computer records, which is contained in the Customer Record Access Monitor Reports and related documents forming part of exhibits P7, P7A, P8 and P9, was admissible evidence. If accepted the evidence demonstrated that the appellant had engaged in a pattern of behaviour, namely, assisting her father and her sister and brother with their Centrelink enquiries over a period of about six years and, in particular, that in the year 2002 there were nine occasions on which the appellant assisted her relatives with their enquiries. The evidence is relevant evidence. It assists in the evaluation of the evidence about the processing of the incomplete rent certificate on 13 May 2002. It explains what may otherwise have seemed a curious or unlikely event and it rationally bears upon the assessment of the probability of a number of facts in issue including whether it was the appellant and not somebody else who accessed the appellant’s father’s Centrelink records on 13 May 2002, whether the accessing of the appellant’s father’s Centrelink records on 13 May 2002 was accidental or intentional and whether the appellant had the competence to access her father’s Centrelink records. Provided the evidence is otherwise relevant and it rationally bears on the probability of a fact in issue it is not necessary for there to be a striking similarity or underlying unity in the other accesses. Striking similarity, underlying unity and other descriptions of similar facts are not essential to the admission of such evidence: Pfennig v The Queen (supra) at p 484.
As the evidence about the other accesses to the appellant’s relatives’ Centrelink records is propensity evidence which was relied upon in conjunction with other circumstantial evidence to prove certain elements of the offence with which the appellant was charged, its admissibility is to be determined by applying the test stated in Pfennig v The Queen (supra) at p 483-485. The question is, assuming the evidence is ultimately accepted by the trier of fact, whether there is a rational view of the evidence that is consistent with the innocence of the accused or whether there is a rational view of the evidence (of the other conduct) that is inconsistent with the guilt of the accused. The test does not require the evidence of the other conduct without more to prove guilt of the offence charged and it must be assumed that the evidence of the other conduct must be accepted as true and that the prosecution case (as revealed in the evidence already given at trial) may be accepted by the trier of fact.
In my opinion the evidence of the other accesses to the appellant’s relatives’ Centrelink records passes the test enunciated in Pfennig v The Queen (supra). As a matter of commonsense and experience the evidence of the other accesses to the appellant’s relatives’ Centrelink records rationally tends to increase the probability that it was the appellant and not somebody else who intentionally and deliberately accessed the appellant’s father’s Centrelink records on 13 May 2002. There is no rational view of the evidence of the other accesses to the appellant’s relatives’ Centrelink records that is consistent with the innocence of the appellant.
The probative value of the evidence about the other accesses to the appellant’s relatives’ Centrelink computer records outweighs its prejudicial effect. It shows that the appellant’s relatives did contact her and seek her assistance and they did so on numerous occasions. It shows that the appellant had a disposition or tendency to personally assist them when they contacted her. It shows on a significant number of occasions it was the practice of the appellant to assist her relatives by accessing their computer records and that the occasion charged was not an isolated incident. It rationally increases the probability that the accesses to the computer records on 13 May 2002 were deliberate, not inadvertent or mistaken or accidental. The evidence is related to the proof of specific elements of the offence with which the appellant was charged and it rebuts alternate hypotheses such as that the processing of the incomplete rent certificate on 13 May 2002 was done by someone else and that the appellant may have inadvertently or accidentally processed the incomplete rent certificate. The evidence of other accesses to the appellant’s relatives’ Centrelink computer records together with the other circumstantial evidence does more than merely raise or strengthen a suspicion that the appellant committed the offence with which she was charged. The evidence showed that the accesses to the appellant’s relatives’ Centrelink computer records had been made over a number of years and that there were nine such accesses during the year 2002. More than 30 accesses had been made to the relevant computer records under the appellant’s logon ID and a password obtained with the use of the appellant’s personal identification number and smartcard. The accesses were made in circumstances where all of the appellant’s co-workers had their own computer, logon ID, personal identification number and smartcard and could have independently dealt with any of the enquiries of the appellant’s relatives. It was simply a matter of the appellant referring her relatives to another member of staff.
The fact that the evidence led by the respondent included evidence that on occasion when Centrelink staff attended remote communities and encountered computer difficulties they would share a laptop computer and make enquiries under another member of staff’s logon ID after the other member of staff had logged on; that members of staff did not always log off their computer before leaving their computer unattended; there was nothing in Centrelink’s computer system itself that prevented another member of staff from using a member of staffs’ computer with or without consent after that member of staff had logged on and the screen remained unlocked; and that there was one recorded occasion in Broome where a member of staff had used another person’s computer after that person had logged on does not undermine the trial magistrate’s finding based on exhibits P7, P7A, P8 and P9 that the appellant had access to her relatives’ Centrelink files on a significant number of occasions. Nor does it demonstrate that the probative value of this evidence was outweighed by its prejudicial effect. The great preponderance of evidence was that accesses under another member of staff’s logon ID were uncommon. Centrelink staff were trained and instructed that they only were to access Centrelink’s computer system under their own logon ID and they were able to do so even on some else’s computer. They were also trained and instructed to log off before leaving their computer unattended. Not one witness was cross examined with the purpose of trying to establish that the appellant regularly left her computer unattended while it was unlocked. His Honour’s reasoning that taken as a whole it was unlikely to be explainable that the appellant did not make at least some of the entries to her relatives’ Centrelink computer records, if not the majority of them; and that there were too many of them to have been all explainable by some third party fraudulently or erroneously using the appellant’s logon particulars remains sound.
The evidence of other accesses to the appellant’s relatives’ Centrelink computer records was not misused by the trial magistrate. The trial magistrate reminded himself that he could not reason that because the appellant had accessed her relatives’ Centrelink computer records in the past she must have done it on this occasion. The evidence of other accesses to the appellant’s relatives’ Centrelink computer records was not taken by his Honour to prove too much. The trial magistrate stated that:
The evidence is probative only of the defendant’s propensity to access relatives’ files and it too is circumstantial in nature. In receiving the evidence I do so conscious that it does not prove the offence with which the defendant is charged. It does not assist my determining whether on the occasion charged there had been some unusual event which might explain innocently the occurrence that occurred. In other words, I am saying that I still look at the options that might innocently explain the events on the day, notwithstanding that there is independent evidence showing that the defendant from time to time appears to have accessed the records of her relatives which was contrary to the policy of the Department.
The ground of appeal was unsustainable.
Ground 2 – The trial magistrate erred in directing himself on the question of the silence of the defendant.
The second ground of appeal was that the trial magistrate erred in directing himself about the silence of the appellant. In this regard the trial magistrate stated as follows:
There has been a lot of evidence in this case from prosecution witnesses. Indeed the only evidence that I have received is from prosecution witnesses. All of them were past or present employees of the Commonwealth. I assess and accept the Crown submission that they were all truthful witnesses and I accept their evidence as being truthfully given. I do not think that the defence ever really contested the truthfulness of the witnesses, although some of their recollections were tested from time to time and some of their attitudes to the likelihood of the events might have been tested and indeed the evidence showed that there were some odd occasions or events which the defence would say might explain innocently the occurrence that occurred on another occasion.
The defendant did not call evidence, as is her right, and I draw no conclusions from the defendant’s decision not to give evidence. The prosecution must still satisfy me that all rational explanations are negatived. The defence decision not to give evidence means only that there is no evidence perhaps to support an argument, or any alternative explanation, that might be consistent with innocence. It seems to me that notwithstanding – so what I am trying to say here is that the Crown evidence must satisfy me, and I only have the Crown evidence, I do not have any other evidence to positively assert an innocent explanation that might otherwise excuse the defendant from the behaviour.
In my opinion the above comments do not demonstrate any error in the directions that the trial magistrate gave himself about the election of the appellant not to give evidence. His Honour did not treat the appellant’s failure to give evidence as a circumstance bearing on the probative value of the evidence pointing to the appellant’s guilt and the trial magistrate reminded himself that he still had to be satisfied that the evidence of the respondent excluded all hypotheses consistent with the innocence of the appellant. Nor did the trial magistrate use the appellant’s failure to give evidence to fill any gaps in the prosecution case or as a “make weight” in considering whether the respondent had proven its case beyond reasonable doubt. His Honour does no more than state that in the face of the prosecution case, which was a purely circumstantial case, the appellant had not led any evidence that would diminish the prosecution case.
Although the trial magistrate did not apply the principles in Weissensteiner v The Queen (1993) 178 CLR 217 it is arguable that he was entitled to do so regardless of the provisions of s 9(3) of the Evidence Act. As this was a case in which the respondent sought to establish its case by circumstantial evidence, it is arguable that, as the trier of fact, the trial magistrate could have found that the failure of the appellant to give evidence about matters that must be within her knowledge is a factor which may be taken into account in deciding whether or not there was a rational hypothesis consistent with the innocence of the appellant: Weissensteiner v The Queen (supra) at 227 – 228; R v McGibbony [1956] VLR 424 at 428-429.
Nor does the trial magistrate’s failure to expressly reject the appellant’s statements in her various email replies to Mr Clatworthy, which are contained in exhibit P13, amount to an error. His Honour’s statement that “the only evidence that I have received is from prosecution witnesses” is plainly a reference to the sworn testimony of the witnesses that he heard in court. It follows from the fact that he accepted the evidence of the respondent’s witnesses that he rejected the statements that were made by the appellant in her emails that she sent in reply to Mr Clatworthy. The trial magistrate considered the alternate hypotheses that were raised by the counsel for the appellant in his written submissions that were relied on in the Court of Summary Jurisdiction and his Honour rejected them.
The trial magistrate was entitled to reject the statements of the appellant that were contained in her emails that she sent in reply to Mr Clatworthy. The appellant’s statements do not specifically deal with the charge against her in this case. The appellant’s replies were made in response to a general enquiry about the appellant accessing her relatives’ Centrelink computer files. The statements are vague and self-serving statements that are lacking in necessary detail. The emails as a whole showed that the appellant was prevaricating. They are unsupported by any sworn testimony. Her specific statements were not taken up in the cross examination of any witness called by the respondent. Ms Vicki Anne Miller was a witness who was called on behalf of the respondent. She gave evidence that in May 2002 she was working in the same office as the appellant in Knuckey Street and that she worked with the appellant for two years. She stated that on one occasion she was asked by the appellant to process a rent certificate for Mr Baird. She accessed Mr Baird’s computer records but she did not process the rent certificate because she felt that the rent was too high. She also gave evidence that there were a couple of occasions when the appellant asked her to deal with members of the appellant’s family. Ms Miller was not asked in cross examination if she undertook any of these enquiries under the appellant’s logon ID or if the appellant offered to let her undertake the enquiries with the use of the appellant’s computer or if she was aware of other staff members assisting the appellant with such enquiries in such a manner.
Ground 3 – The trial magistrate erred in failing to provide any or adequate reasons for rejecting a number of alternative hypotheses consistent with innocence.
The third ground of appeal is that the trial magistrate erred in failing to provide any or any adequate reasons for rejecting a number of alternate hypotheses said to be consistent with the innocence of the appellant. The appellant submitted that there were four alternate hypotheses consistent with the appellant’s innocence. First, it was submitted that there was a reasonable possibility that someone other than the appellant had processed her father’s incomplete rent certificate. It was said that in her email responses to the enquiries being made by Mr Gregory John Clatworthy, which are contained in exhibit P13, the appellant stated that when members of her family called her to seek her assistance in relation to their Centrelink matters she would request another member of staff to deal with their requests. The other member of staff would invariably come and use her computer and deal with her family’s enquiries under her logon ID. The appellant had stated that on one occasion she was even requested to unlock her computer by a member of staff so that the member of staff could assist a member of her family. Secondly, there was no consideration given by the trial magistrate to the possibility that the appellant was exercising an honest claim of right. Thirdly, there was a reasonable possibility that the appellant had inadvertently processed her father’s incomplete rent certificate and had reported the matter to Richard Woolfe. Fourthly, it was submitted that the entry in the “Oops Book” acknowledges that the appellant had accidentally or inadvertently processed her father’s rent certificate and had admitted this transgression. It was said that this again raised the possibility that the appellant did not intentionally and dishonestly access her father’s Centrelink record. There was evidence before the Court of Summary Jurisdiction that an ‘Oops Book’ was established in the Knuckey Street office of Top End Remote Services. The ‘Oops Book’ enabled entries to be made by staff when they had made inadvertent accesses to a Centrelink computer record which they should not have accessed. There was an entry made in the ‘Oops Book’ by the appellant. The ‘Oops Book’ is ex P 12. The book shows that on 2 December 2002 the appellant made the following entry: “Doc recorded rent assistance letter received.”
Prior to analysing the first alternate hypothesis it is important to note what occurred on 13 May 2002. As at 13 May 2002 John Samuel Baird was receiving a Commonwealth Disability Support Pension and payments of rent assistance from the Australian Government. As such his entitlement to rent assistance was subject to a six monthly review. The review procedure was that every six months a recipient of rent assistance would be sent a letter. The letter was in the form of a rent certificate. Within fourteen days from the date of the letter the Centrelink customer who was in receipt of rent assistance was required to complete part of the form and to obtain a signed verification from his landlord that the details provided about rent by the Centrelink customer were true and correct. The particulars requested in the rent certificate included confirmation that rent was being paid and a statement of the amount of rent that was being paid. The completed and verified rent certificate had to be returned to the Centrelink customer’s Local Customer Service Centre within fourteen days from the date of the letter. If the completed rent certificate was not provided within 14 days from the date of the letter then payments of rent assistance would be stopped. They were not finally cancelled. Once the completed rent certificate was provided payments of rent assistance would be recommenced. Payments of rent assistance would be back dated if the completed rent certificate was provided within 21 days of the date of the form. Payments of rent assistance would not be back dated if the completed rent certificate was provided after 21 days from the date of the rent certificate.
In May 2002 John Samuel Baird’s Local Customer Service Centre was at the corner of Maluka Street and Temple Terrace in Palmerston. It was not the Top End Remote Services office in Knuckey Street where the appellant worked. Mr Baird also had a specific Customer Services Officer who was looking after his file. Her name was Gayle. She was based in the Palmerston Office. Any enquiry about Mr Baird’s Centrelink matters should have been transferred to Gayle.
On 1 May 2002 a rent review letter was sent to John Samuel Baird. He completed his part of the rent review and he signed his name on the form. However, he did not obtain the verification from his landlord. The incomplete rent certificate was received in the Top End Remote Services Centrelink Office on or before 13 May 2002. As the rent certificate was not certified or verified by Mr Baird’s landlord it should not have been processed. Mr Baird should have been contacted and asked to obtain his landlord’s verification of his payments of rent. If Mr Baird had been contacted and if he was able to provide a completed rent certificate by 15 May 2002 his payments of rent assistance would not have been automatically stopped. If Mr Baird had been contacted and if he was able to provide the completed rent certificate by 22 May 2002 his payments of rent assistance would have been automatically stopped but they would have been recommenced upon receipt of the completed rent certificate and he would have been back paid rent assistance. If Mr Baird was contacted and if he had provided the completed rent certificate after 22 May 2002 his payments of rent assistance would have been recommenced at the time of receipt of the completed rent certificate but he would not have been back paid rent assistance.
There was a considerable amount of evidence before the trial magistrate that no member of Centrelink’s staff would have processed such an incomplete rent certificate. Indeed Vicki Anne Miller gave evidence that on one occasion she was asked to process a rent certificate that related to the appellant’s father but that she did not do so simply because she thought that the rent was too high. Obviously if staff were to process substantially incomplete rent certificates then the review procedure would break down. There was also a considerable amount of evidence before the trial magistrate that staff were instructed and reminded that they were not to access Centrelink’s computer system under another member of staff’s logon ID and that they were instructed and reminded that they were not to access their relatives Centrelink files.
On 13 May 2002 someone processed the appellant’s father’s incomplete rent certificate under the appellant’s logon ID and deliberately took positive steps to avoid the automatic cancellation of payments of rent assistance. These steps included the creation of an electronic document that stated, “rent certificate received advising that cust pays $125 Community rent per week. Rent details have been updated. Cust lives in remote community and region has been changed to reflect TERS.” In addition someone under the appellant’s logon ID changed Mr Baird’s Local Customer Service Centre from Palmerston to the Top End Remote Services Office in Knuckey Street. The person did so in circumstances where Mr Baird lived at Durduga Tree Point Aboriginal Community at Gunn Point which was not considered to be a remote community but a community attached to Centrelink’s office at Palmerston and his mailing address was a post office box at Winnellie.
As to the first alternate hypothesis the appellant’s principal position according to her email responses to Mr Clatworthy was that:
During the periods of 1994 – 2002 there were times when my family members either contacted me via the phone or asked for me at the counter. I am not sure of the times when they did come in, as I did not realise that I needed to document any contact. However, at the time of the contact I did advise them that it was inappropriate for me to deal with them due to the conflict of interest and that I would get another staff member to assist them with their enquiry. At these times I would just leave my work area and let the staff member either take the call or talk to the family member at the time. Most times the general practice was to leave your screen as this occurs.
There was a time when my screen was locked; and I was requested by the staff member assisting my family member to unlock the screen. This is what is usually done and you do it without thinking of the consequences. The general practice is that you can use another staff member’s screen be it in the office environment or out in the field on the laptop with travelling processing staff.
Even taken at its highest the appellant’s position does not deal with what occurred on 13 May 2002. Had assistance been sought from another member of staff on 13 May 2002 the only rational inference is that Mr Baird would have been told or contacted and advised to obtain his landlord’s certification before the incomplete rent certificate could be processed and to attend at the Palmerston Office once he had done so. There would be no drastic consequences for Mr Baird, if his landlord was required to verify the relevant part the rent certificate before it was processed. Nor was the work involved for the member of staff more onerous if Mr Baird was required to obtain a properly completed rent certificate. Another member of staff would have had no possible interest in processing the incomplete rent certificate let alone changing Mr Baird’s Local Customer Service Centre from the Palmerston Office to the Knuckey Street Office. The natural human reaction would be to brook at any request by another member of staff to process their relative’s incomplete rent certificate. As a matter of commonsense alone the first alternate hypothesis is implausible. Furthermore, the evidence of all of the other witnesses called by the respondent was that it was not common practice to use someone else’s logon ID. In such circumstances as described by the appellant staff were instructed to ensure that the first user of the computer had logged off and to log on under their own logon ID. The process of doing so only took a few minutes.
The notion that another member of staff would have opportunistically used the appellant’s computer to take positive steps to process her father’s incomplete rent certificate in her absence in circumstances where she had failed to log off her computer before leaving it unattended is even more fanciful than the above position. In relation to this hypothesis the trial magistrate correctly held:
Whilst there is and clearly counsel was successful in obtaining some evidence that staff were using other IDs in certain situations, it seemed to me that the evidence in relation to that was limited wholly or almost wholly to work done out in the community situation where there were sometimes difficulties getting into the computer, the central computer from remote sites … It seemed to me to be a highly unlikely event that someone would deliberately come on and use another persons computer and sign off in a way that was done in this case.
In my opinion the first alternate hypothesis is implausible.
The second alternate hypothesis is also implausible. The hypothesis is based on the following statement contained in the appellant’s email or letter dated 13 October 2003 which forms part of exhibit P13:
I regret that this incident has happened and honestly believe that I was doing the right thing at the time. When you understand customer pressures of constant phone ringing you do the best that you can in all areas. I was helping out my team and believe that I was assisting a customer whether it is a family member or not. In TERS the staff relationship is one of unity and trying to help each other out as best we can. This I believe is what happens. I believe that I still have a lot to offer Centrelink and believe that once this is all over with I would be able to continue to do the best job that I can for the organisation.
I accept the respondent’s submission that such an assertion does not fall within the provisions of s 9.5 of the Code. The statement does not demonstrate or raise a reasonable possibility that the appellant had a mistaken belief about a proprietary or possessory right or entitlement of her father. It is also evident from the nature of the periodic review of rent assistance that payments of rent assistance would cease if a duly completed rent certificate was not produced. The rent certificate expressly states, “If you have been getting Rent Assistance it will cease for existing customers unless the requested information is provided by the due date.” Furthermore, the evidence tendered by the respondent in the Court of Summary Jurisdiction demonstrated that the appellant knew about the prohibition about dealing with relatives and accessing their Centrelink records.
The trial magistrate accepted the evidence of the respondent’s witnesses regarding the prohibition on accessing relatives’ computer records. As to the appellant’s knowledge of these matters his Honour stated:
[T]he general tenor of the evidence as to the strict procedures in place to deal with relatives files, and I accept the evidence, that there were guidelines regarded as serious guidelines and I find also that the defendant must have been aware of them at the time. Indeed she made some comments to that effect in the correspondence. But I do not rely on that. I rely on the general evidence to find that in turn that she had been in the Department a very considerable period, she knew or must have known about those things and then to act in the role of a supervisor it is inexplicable to me that a person would not know one of the basic functions or rules of the organisation.
The third alternate hypothesis raised by the appellant is said to be the possibility that the appellant inadvertently accessed her father’s Centrelink computer records. This possibility is said to be raised by the fact that during his cross examination Richard Woolfe, who was the appellant’s supervisor, gave evidence that prior to the introduction of the “Oops Book” a person would inform him of an inadvertent slip when accessing the Centrelink computer system and Mr Woolfe would make a note of the slip in his diary and he was unable to recall whether or not the appellant had come and spoken to him about accessing family records.
The relevant evidence of Richard Woolfe was as follows:
Prosecutor:Do you recall whether in May 2002 Ms Millen approached you regarding an inadvertent access to a relative’s account?
Woolfe:No, I don’t recall that. She did approach me later in the year though. I’m talking about the thing in the ‘Oops book’ (04/05/06 pp 161)
Bryant:You don’t recall whether or not prior to the implementation of the ‘Oops book’ whether or not you spoke to or counselled Leeanne Millen about accessing family records?
Woolfe:I don’t recall specifically saying those things to Leeanne Millen but I recall in general talking to many, many staff about, you know, sometimes in groups and I don’t recall every individual who was at the meeting.
Bryant:But is it possible – you don’t recall, but I’m saying is it possible?
Woolfe:Leeanne would have come to me on many, many issues. So she had the opportunity to come to me but I didn’t recall and I don’t recall saying anything like that.
Bryant:So it’s possible that she did, but you don’t recall?
Woolfe:I don’t recall that
Bryant:You have no recollection?
Woolfe:That’s right. No recollection.
Bryant:But she’d come to see you about a whole host of things?
Woolfe:That’s right
Bryant:In the course of the day or week?
Woolfe:Yeah, so it’s possible that she didn’t
Bryant:Sorry?
Woolfe:I think it’s possible also in terms of recalling information that she didn’t come to me because I remember her coming to me about other issues.
Bryant:So either way, it’s possible she did and possible she didn’t?
Woolfe:Yes.
The above evidence does not raise the possibility of an inadvertent slip nor does Mr Woolfe’s limited recall mean that this hypothesis has not been excluded. More importantly what occurred on 13 May 2002 cannot be characterised as an inadvertent slip. The trial magistrate correctly held as follows:
Eighthly, the incomplete nature of the document was such that it would, on the evidence given to me – and there is no evidence to the contrary –should and would never likely to have been processed by an operator. There is not just a single irregularity with the document; there are several irregularities on the document such that all people who gave evidence indicated that the document would not have been processed.
Ninthly, it seems to me that the document clearly identified the defendant’s father’s name at the top of the document and it would be impossible, in my estimation, for the defendant to have that document in front of her and to start the process without realising it was her father’s. And it seems to me that it is so unlikely as to be fanciful that she would process the document without realising she was dealing with her own father. The particulars and the accounts and the names are all obvious on the document. It is apparent to anyone picking that up who the identity of the person was and particularly obviously it was apparent to the defendant. In such circumstances an accidental commencement – even an accidental commencement of the process of registering the document – seems to me to be unlikely.
As I said earlier, [the fact that] there was a long sequence of entries into the various records with the file also would negate against any accidental entry. And there are a long list of supposed – some things that would have to be the case if there were any innocent dealings with the record that were identified in paragraph 23 of the Crown submissions. Most of which seem to me to carry some weight but not all.
The fourth alternate hypothesis is that the statement in the “Oops Book” that “doc recorded rent assistance letter received” which was made by the appellant on 2 December 2002 is exculpatory as it raises the possibility that the appellant was referring to the access on 13 May 2002. In my opinion this hypothesis is also implausible. It may be rejected on the following grounds. The entry makes no mention of the transactions on 13 May 2002. Nor does it make any reference to the fact that the rent certificate was incomplete. There was a system in place for recording inadvertent slips prior to the introduction of the “Oops Book”, namely the recording of such incidents in Richard Woolfe’s diary and the entry is made almost seven months after 13 May 2002. In her telephone conversation with Juliana Nicholls on 22 September 2003 the appellant stated that from approximately the end of October to December last year she used to help out with registering mail that was received at Top End Remote Services. During this process customer records were searched for by the customer’s number rather than the customer’s name and she accidentally accessed her father’s record. She reported this incident to Richard Woolfe. If anything the “Oops Book” entry is likely to refer to this incident. In any event the accesses on 13 May 2002 were not inadvertent accesses.
Ground 4 – The trial magistrate erred in finding that the appellant acted dishonestly.
The fourth ground of appeal is that the trial magistrate erred in finding that the appellant acted dishonestly. In this regard his Honour stated as follows:
On the evidence I am satisfied that the defendant knew that you should not access relatives accounts, that the document was not complete and would not be processed by another operator. Thirdly, that she knew the rent [assistance] would be discontinued unless the rent certificate was processed and the block cleared. So given those three facts I am satisfied that she carried out the procedure with this knowledge and therefore that it was carried out dishonestly as defined. That is, as defined in terms of the ordinary person’s view as to the appropriateness of that behaviour.
As to this ground of appeal the appellant relies on the following propositions. First, proving a breach of the privacy and security protocols of the Australian Public Service does not amount to the establishment of a dishonest intent. Secondly, the finding that the appellant knew that the rent certificate was incomplete and would not be processed was not a finding that was open on the evidence. Thirdly, the finding that rent assistance would be discontinued unless the rent certificate was processed was not a finding that was open on the evidence.
This ground of appeal cannot be sustained. The submissions of the appellant ignore the reality of the situation and significant parts of the evidence. The appellant was in a position of conflict of interest. Her responses to Juliana Nicholls and Mr Clatworthy demonstrate that she was aware that she should not make enquiries or assessments on behalf of her relatives. While in such a position of conflict the appellant took positive steps to ensure that her father’s payments of rent assistance were not automatically terminated. She processed an incomplete rent certificate which on its face clearly revealed that her father’s claim for rent assistance had not been verified by the appellant’s father’s landlord. Her employer had an interest in ensuring that all such claims for rent assistance were verified by the claimant’s landlord. The rent certificate specifically contains the following heading, “If you have been getting Rent Assistance it will cease for existing customers unless the requested information is provided by the due date.” Beneath the heading appeared the following statement, “For existing customers, if you have been getting Rent Assistance it will cease unless the requested information is provided by the due date. This information must be given within 14 days of being given this notice. This is an information notice given under section 196 of the Social Security (Administration) Act 1999.” The appellant was in a position of trust and she preferred the interests of her father to that of her employer. She obtained a benefit for her father, namely the ongoing payment of his rent assistance. She did so secretly and without consulting her employer. The electronic document that was created by the appellant states, “rent cert recd advising that cust pays $125 Community rent per week. Rent details have been updated. Cust lives in remote community and region has been changed to reflect TERS.” The statement implies that all relevant information was provided. There is no mention that the rent certificate had not been verified by the appellant’s father’s landlord. In the circumstances the trial magistrate correctly found that the conduct in which the appellant engaged was dishonest according to the standards of ordinary people.
As the trial magistrate correctly found, the fact that the appellant knew that the conduct in which she engaged was dishonest according to the standards of ordinary people can be inferred from the fact that she engaged in the conduct herself in circumstances where she knew that she should not access her relatives’ files. She did not request another member of staff to process the incomplete rent certificate. It can also be inferred from the fact that in the electronic document she created she made no mention that the rent certificate had not been verified by the landlord and by the fact that she changed her father’s local service centre from Centrelink’s Palmerston office to Centrelink’s Knuckey Street office.
The finding that the appellant knew that the rent certificate was incomplete can be inferred from the facts that the appellant processed the rent certificate and the extent to which the rent certificate was incomplete. On the last page of the document there is the following heading, “8. Landlord’s declaration – this section is to be completed by the person who receives your rent payments.” The name address and signature of the landlord are not on the rent certificate. Nor, alternatively, is there any statement to the effect that the appellant’s father’s landlord refused to sign the document.
Evidence about the fact that the incomplete rent certificate would not be processed was given by witnesses Janette Grace McCormack, Richard Woolfe and Vicki Anne Miller. During her cross examination Ms McCormack stated:
Prosecutor:And in your experience, what would the effect be of an incomplete rent certificate?
McCormack: It would not be recorded as being verified. It would be recorded as being not verified and the rent would cease.
McCormack: In my experience, if a document is incomplete it is returned to the person and asked to be completed before the payment is made.
Bryant:So what happens to their benefits if that cut off period expires? So your system automatically cuts them off? Do you cut them off and send the document back and say fill it in properly?
McCormack: If it’s an automatic cut off by the system, yes that happens.
Bryant:So it’s the case then that if there is an incomplete document and it’s received by Centrelink, that benefit will automatically cease?
McCormack: That’s the general rule, yes.
Bryant:Is it an absolute rule?
McCormack: There are circumstances where a person – may I give you an example? …..So there are exceptions to the rule but they are still laid down in that legislation and policy on when exceptions may occur).
Bryant:What about in the context of this particular case, where there has not been a signature by the landlord or a declaration by the landlord? What’s the policy?
McCormack: It just doesn’t get processed. It’s totally incomplete. There’s no verification by a landlord that the amount of rent has been paid. There’s no signature, no date. There’s no address. It just wouldn’t be processed.
McCormack: If it was minus a signature of course we would cut the benefit off.
During his cross examination Mr Woolfe stated:
Bryant:If they put in a form and it’s incomplete, do you cut off the benefit immediately, is that your policy?
Woolfe:In some, the general mainstream if often was, in our policy was to try and follow it up so we could actually get that form or a duplicate filled out and replaced …. So we tried to give as much latitude as possible, different to our metropolitan office who would be a lot harder on them
Bryant:You might send a letter out to the person saying, here’s a duplicate form, fill it in and send it back, is that what happens?
Woolfe:Yes, or even try to contact the agent for the particular community and get them to follow it up and find the person and get them to fill in the duplicate.
Bryant;So as a general rule, benefits weren’t ceased if there was some document that had been filled out incorrectly … or was incomplete?
Woolfe:It depended on the claim that type of thing as well.
Bryant:What about if something was ongoing though, like someone had been receiving a benefit for 2 years, there had been six monthly reviews, documents had always gone in …
Woolfe:Once again, you would have to understand the exact circumstances about it, the officers had tried to follow it up a number of times. Sometimes it would be that they tried several times and it still hadn’t been able to get the information and in that case or some other case they would stop a payment or suspend the payment. So while we had to be flexible with people we did have to sometimes stop a payment or delay it until the correct information happened.
During her cross examination Ms Miller stated:
Bryant:In the time you have been processing data, have you ever processed a document which you’ve later found to be incomplete in some way?
Miller:That I’ve processed?
Bryant:Yes, in the hundreds that you have processed?
Miller:Probably.
Bryant:And would those deficiencies be things like a signature missing?
Miller:Never.
Bryant:If there had been a document which was incomplete and a claimant was approaching a cut off time and their benefit would expire, would you simply cut off the benefit?
Miller:No, if we were out in the field we would call in.
Bryant:Out in the field would you cut the benefit off?
Miller:Not normally, no you wouldn’t cut it off.
Bryant:What about if you’re back in Darwin or Palmerston?
Miller:It depends upon the circumstances.
Bryant:And what circumstance would you look at before you took a decision whether or not to cut off the benefit?
Miller:If they did not return the review, you would send it out a couple of times, because of the mail, so we suspend the benefit and that way they contact us.
Bryant:If a document was incomplete, you would notify the claimant and say fix it up or we’ll stop your benefits?
Miller:We would notify the agent in most cases.
Bryant:Before you cut the benefit off?
Miller:You actually suspend it. When you suspend them you’re making the customer aware that they’re not getting money, then they ring you.
The above evidence is consistent with the findings of the trial magistrate.
The trial magistrate’s finding that rent assistance would be discontinued unless the rent certificate was processed is supported by the fact that the appellant processed the rent certificate, by what is stated on the rent certificate and by the fact that Centrelink’s administration system was set up so that unless positive steps were undertaken the payments of rent assistance would automatically cease.
Ground 5 – The verdict was unsafe and unsatisfactory
The final ground of appeal is that the conviction was unsafe and unsatisfactory leading to a miscarriage of justice. It was submitted on behalf of the appellant that there is evidence on the record which contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force and that there is a significant possibility that an innocent person has been convicted in such circumstances that the verdict of the trial magistrate should be set aside. This ground of appeal necessitates the court reviewing the whole of the evidence and determining whether “upon the whole of the evidence it was open to the [trial magistrate] to be satisfied beyond reasonable doubt that the [appellant] was guilty”: M v The Queen (1994) 181 CLR 487 at 493.
As to the specifics of this plea counsel for the appellant stated that the appellant relied on the other grounds of the appeal. As I have stated the other grounds of appeal were not made out and therefore this ground of appeal also failed.
I also undertook the exercise of reviewing the whole of the evidence and I concluded that the respondent’s case against the appellant was a strong circumstantial case. I did not and do not experience any reasonable doubt as to the guilt of the appellant. I did not and do not consider that there is a significant possibility that an innocent person has been convicted: M v The Queen (supra) at 494.
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