NSW Land and Housing Corporation v LC

[2023] NSWDC 241

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

NSW Land and Housing Corporation v LC [2023] NSWDC 241

Hearing dates:

09, 12 & 13 December 2022

Date of orders:

23 June 2023

Decision date:

23 June 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

In respect of each of the Sequences, One through to and including Seven, I dismiss the appeals from conviction

Catchwords:

LEASES AND TENANCIES — Agreement for lease

LEASES AND TENANCIES — False statement and Representations

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Children (Protection and Parental Responsibility) Act 1997

Community Welfare Act 1987

Crimes (Appeal and Review) Act 2001

Criminal Procedure Act 1986

Evidence Act 1995

Housing Act 2001

Public Sector Employment and Management Act 2002

Public Sector Employment and Management (Housing) Order 2013 (NSW)

Residential Tenancies Act 2010

Residential Tenancies and Housing Legislation Amendment (Public Housing-Antisocial Behaviour) Act 2015

Supreme Court Act 1970

Boarding Houses Act 2012

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218

Blackpool Corporation v Locker [1948] 1 KB 349

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560

Charara v The Queen (2006) 164 A Crim R 39

Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265

Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218

Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647

DPP v Lazzam [2016] NSWSC 145

DPP v West (2000) 48 NSWLR 647

Dyason v Butterworth [2015] NSWCA 52

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Frangieh v Commissioner of Taxation [2018] NSWCA 337

Garrett v Freeman [2006] NSWCCA 278

Justices Act 1902 (NSW)

LC v R [2022] NSWDC 19

Lunney v DPP [2021] NSWCA 186

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Moore v R [2016] NSWCCA 185

New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133

New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431

NSW Land and Housing Corporation v Navazi [2013] NSWCA 431

NSW Land and Housing Corporation v Quinn (No. 2) [2018] NSWDC 161

O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1

Parker v Comptroller-General of Customs (2009) 252 ALR 619

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319

Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

R v Doyle [2018] QCA 303

RvKeenan (2009) 236 CLR 397

Re Reference Under Section 11 ofOmbudsman Act 1976 (1979) 2 ALD 86

Rebecca Khodragha v R, unreported 22 February 2017, District Court of NSW, Sides DCJ

Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129

Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19

Sasterawan v Morris [2007] NSWCCA 185

Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363

Shepherdv The Queen (1990) 170 CLR 573

Stucky v Iliff [1960] HCA 57

Taciak v Commissioner of Australian Federal Police [1995] FCA 650; 59 FCR 285

The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308

Twaddell v New South Wales Land and Housing Corporation [2014] NSWSC 7

Texts Cited:

Criminal Practice & Procedure NSW

Category:

Principal judgment

Parties:

LC (Appellant)
NSW Land and Housing Corporation (Respondent)

Representation:

Counsel:
Greg Johnson (Counsel for the Appellant)
Tony Di Francesco (Counsel for the Respondent)

Solicitors:
Fourtree Lawyers (Appellant)
NSW Department of Communities and Justice (Respondent)

File Number(s):

2015/00259893

Publication restriction:

Order the continuation of the orders made in the Local Court, namely:

(1) The name of the appellant is suppressed and the pseudonym LC be used

(2) The address of the property to which proceedings relate is suppressed and not to be published

(3) The residential address of LC is suppressed and not to be published

 Decision under appeal 

Court or tribunal:

Hornsby Local Court

Jurisdiction:

Criminal

Date of Decision:

05 March 2021

Before:

B Williams LCM

File Number(s):

2015/00259893

JUDGEMENT

Introduction

1. LC appeals from proceedings in the Local Court at Hornsby on 4 December 2020 in which after a defended hearing she was found guilty of seven charges contrary to the Housing Act 2001 (the Act). The New South Wales Land and Housing Corporation (the Corporation) brought the prosecution.

2. Before consideration of the issues raised in these appeals, I wish to address the terms “the Corporation” and “Housing NSW”, used interchangeably throughout in the conduct of the appeals when referring to the New South Wales Land and Housing Corporation.

3. My references to the Housing Act 2001 unless otherwise stated are to the Act as it stood from 1 January 2014 until subsequent amendments, the first of which was on 5 November 2015.

4. It is uncontroversial that the New South Wales Land and Housing Corporation was established under the Housing Act 2001, wherein s 6 provides,

(1)   There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation.

(2)   The affairs of the Corporation are to be managed by the Secretary of the Department of Planning, Industry and Environment.

(3)   Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Secretary of the Department of Planning, Industry and Environment, or with the authority of the Secretary of the Department of Planning, Industry and Environment, is taken to have been done by the Corporation.

(4)   The Corporation is, for the purposes of any Act, a statutory body representing the Crown.

(5)   The Corporation is subject to the direction and control of the Minister.

(6)   (Repealed)

(7)   The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department.

(8)   The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act.

5. Paragraphs 5(1)(a) to (r) specify the objects of the Act including that it is to ensure that the available supply of public housing is shared equitably among people who are most in need

6. “Corporation” is defined in s 3 to mean the New South Wales Land and Housing Corporation. The Act does not define the phrase “Housing NSW”.

7. The Residential Tenancy Agreement between the Appellant and “the NSW Land and Housing Corporation” as landlord, signed by the Appellant on 30 January 2013 at the commencement of her occupation of premises at Lake Haven (the Property) leading to this prosecution, is headed “NSW GOVERNMENT” beside the words “Family & Community Services” immediately below which are the words “Housing NSW”.

8. Other legislation relevant to public housing and administration of the arrangements for it are the Community Welfare Act 1987 for the administration of the Department of Family and Community Services, and the Residential Tenancies Act 2010.

9. The inter-departmental arrangements for the management of the scheme for public housing are not without complexity, but it may be taken as known that currently the New South Wales Department of Community and Justice extends over portfolios for which ministerial responsibility falls upon seven ministers, including the Minister for Family and Community Services. The “Housing Hub” as it is described is within the responsibility of that minister and includes in its products and services housing for people on low or moderate incomes by way of tenancies in accordance with the Residential Tenancies Act 2010; the Corporation is included in the definition of social housing provider in s 36.

10. The arrangements of the scheme for public housing under these provisions explains the interchangeable use of the terms “the Corporation”’ and “‘Housing NSW”. Both terms used in the documents and representations before the court refer to the New South Wales Department of Land and Housing.

The Offences

11. The appellant was presented upon a Court Attendance Notice with seven offences in respect of her occupation of the Property. Subsequently the Court Attendance Notice was amended with refined particulars of the alleged misconduct.

Sequence One

12. The appellant made false statements and representations on 5 March 2015, contrary to s 69(1) Housing Act 2001 [1] , the particulars of which are:

    1. 69 False statements and representations

1. She wilfully provided a letter representing that her son, daughter in law and granddaughter referred to in an undated Rent Subsidy Application filed on 24 February 2015 had moved into the property on 20 February 2015, which she knew to be false, for they had been occupants of the property since at least 10 December 2013.

2. She made the false representations with intention to obtain or claim a rental rebate or rent subsidy.

Sequence Two

13. The appellant by means of a fraudulent device obtained or claimed from the New South Wales Land and Housing Corporation a rental rebate or a reassessment of a rental rebate in respect of the property and hid from the New South Wales Land and Housing Corporation information that would have allowed retrospective reduction of entitlements to rental rebates and reduce or terminate accommodation benefits, contrary to s 69(2) Housing Act 2001. [2]

    2. 69 False statements and representations

14. Particulars of this offence are,

1. The fraudulent device was lodging of the letter of 5 March 2015.

2. The letter or the lodging of the letter was a fraudulent device because it would be considered when determining whether the appellant was entitled to keep her rent subsidy and accommodation at the property, but did not inform the Corporation that:

1. Her son, daughter in law, and granddaughter were occupants since at least 10 December 2013,

2. Prior to her application in February 2015, she failed to obtain permission for them to be additional occupants,

3. Prior to her application in February 2015, she failed to notify the Corporation of the income of her son and daughter in law which would have increased the total household income upon which rebates and social housing are considered by the Corporation,

4. She failed to inform the Corporation that since at least 10 December 2013 she was in breach of a condition of her residential tenancy agreement with the Corporation of 30 January 2013, that no more than two persons may ordinarily live in the property at any one time, and

5. Her representation that her son, daughter in law and granddaughter moved into the property on 20 February 2015 was false, and implied that they had not moved into and occupied the property prior to that date.

3. The fraud perpetrated or sought to be perpetrated by the fraudulent device was to hide from the Corporation the truth of each of the aforementioned matters to assist the appellant,

1. Obtain, claim, or keep an ongoing rent subsidy or concessions from the Corporation, and/or

2. Obtain or keep occupation of the property from the Corporation for herself, her son, her daughter in law, and her granddaughter, and/or

3. Keep previous rent subsidies provided by the Corporation since at least 10 December 2013.

Sequence Three

15. The appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001.

16. The particulars of this offence are,

1. She wilfully provided to the Corporation a Rent Subsidy Application dated 20 March 2015 constituting her making statements or representations;

2. The application included the false statement or representation that her son, daughter in law, and granddaughter had moved into the property on 20 February 2015, which she knew at the time of the application was false because they had been occupants since at least 10 December 2013, and

3. She wilfully made the false statements or representations in the application, to obtain or claim a rental rebate or rent subsidy.

Sequence Four

17. The appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001.

18. The particulars of this offence are,

1. She wilfully provided to the Corporation an Application for Additional Occupant form dated 20 March 2015, constituting her making of statements or representations to the Corporation.

2. The form included the false statements of representations that her son, daughter in law and granddaughter had moved into the property on 20 February 2015, which she knew at the time of providing the form was false because they had been occupants since at least 10 December 2013, and

3. She wilfully made the false statements or representations, to deceive the officer or employee of the Corporation who would consider the form in relation to obtaining for her a rent rebate or rent subsidy from the Corporation.

Sequence Five

19. The appellant on 20 March 2015 aided and abetted, counselled or procured, or by act or omission was directly or indirectly concerned in the commission of an offence by her son NC against s 69(1) Housing Act 2001 contrary to s 69(3) Housing Act 2001 [3] .

    3. 69 False statements and representations

20. The particulars of this offence are,

1. The appellant wilfully provided to the Corporation the Additional Occupant Form which attached an additional person declaration by NC as being true and correct and in support of her Additional Occupant Form.

2. By the declaration NC wilfully made statements or representations.

3. The declaration included false statements or representations by NC that he moved into the property on 20 February 2015 and did not occupy the property in six months preceding that date, which he knew to be false because he had been an occupant since at least 10 December 2015.

4. NC wilfully made the false statements or representations in the declaration to obtain or claim from the Corporation a rental rebate or rent subsidy or occupation of the property.

Sequence Six

21. The appellant on 20 March 2015 aided and abetted, counselled or procured, or by act or omission was directly or indirectly concerned in the commission of offence by her daughter in law KG against s 69(1) Housing Act 2001 contrary to s 69(3) Housing Act 2001.

22. The particulars of this offence are,

1. The appellant wilfully provided to the Corporation the Additional Occupant Form which attached an additional person declaration by KG as being true and correct and in support of her Additional Occupant Form.

2. By the declaration KG wilfully made statements or representations.

3. The declaration included false statements or representations by KG that she moved into the property on 20 February 2015 and did not occupy the property in six months preceding that date, which she knew to be false because she had been an occupant since at least 10 December 2013.

4. KG wilfully made the false statements or representations in the declaration to obtain or claim from the corporation a rental rebate or rent subsidy or occupation of the property.

Sequence Seven

23. The appellant by means of a fraudulent device on 20 March 2015 obtained and claimed from the New South Wales Land and Housing Corporation a rental rebate or reassessment of her rental rebate, claimed accommodation benefits for her son, daughter in law, and granddaughter, and hid from the New South Wales Land and Housing Corporation information that would have allowed a retrospective reduction of entitlements and reduce or terminate accommodation benefits contrary to s 69(2) Housing Act 2001.

24. The particulars of this offence are,

1. The fraudulent device was either.

1. The lodging of the March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, or

2. The March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, individually or taken together.

2. The March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, individually or taken together or the lodging of those with the Corporation, was a fraudulent device because the documents could be considered when determining whether the appellant was entitled to keep her rent subsidy and accommodation, and whether to allow her son, daughter in law and granddaughter to also occupy the property.

3. The documents did not inform the Corporation of that her son, daughter in law, and granddaughter were occupants since at least 10 December 2013,

4. The Appellant prior to the February 2015 application failed to obtain permission for her son, daughter in law, and granddaughter to be additional occupants,

5. The Appellant prior to the February 2015 application failed to notify the Corporation of the income of her son and daughter in law which would have increased the total household income upon which entitlements to rebates and social house are considered,

6. The Appellant failed to inform the Corporation that since 10 December 2013 she was in breach of a condition of her residential tenancy agreement of 30 January 2013, that no more than two persons may ordinarily live in the property at one time.

7. Representations that her son, daughter in law and granddaughter moved into the property on 20 February 2015 were false and implied that they had not moved into and occupied the property prior to 20 February 2015.

8. NC’s declaration falsely represented that he moved into the property on 20 February 2015 and had not occupied the property in the preceding six months.

9. KG’s declaration falsely represented that she moved into the property on 20 February 2015 and had not occupied the property in the preceding six months.

10. The fraud perpetrated or sought to be perpetrated was to hide from the Corporation the truth of one, some, or each of these matters to assist the Appellant:

1. Obtain, claim, or keep an ongoing rent subsidy or concession, and/or

2. Obtain or keep occupation of the property from the Corporation for the appellant, her son, daughter in law and granddaughter, and/or

3. Keep previous rent subsidies provided by the Corporation to the Appellant since at least 10 December 2013.

The Local Court Proceedings

25. The prosecution in the Local Court was protracted.

26. The Appellant’s written submissions advise that the originating Court Attendance Notice was filed on 4 September 2015. The defended hearing in the Local Court took place on 13 October 2016, 4 May 2017, 1 April 2019, 2 July 2019, 14 January 2020, 10 March 2020, 18 March 2020, and 4 December 2020 when the presiding Magistrate delivered judgement and found the offences to be established.

The Appeals

27. The appeals came to my court on 20 October 2021 and 16 November 2021 for argument upon applications for the tender of what was said to be fresh evidence and for the attendance of two witnesses for cross examination. I delivered judgement on 28 January 2022. I refused the application for attendance of the witnesses but allowed the tender of the documents offered as fresh evidence: LC v R [2022] NSWDC 19. The appeals were then adjourned for preparation of the materials upon which they were to be pursued against a timetable for their provision.

28. This next phase was also protracted, for which there can be no criticism in the circumstance. The advocate appearing for the Respondent through illness became unavailable and the Respondent thereafter retained counsel who needed time to master the volumes of material assembled for the appeals.

29. Hearing of the appeals commenced on 9 December 2022 with five days set aside. From that day the appeals were resumed on 12 and 13 December 2022 and thereafter adjourned to 30 March 2023 for my decision and judgement. Unfortunately due to circumstances the time I allocated for the matter over the Christmas vacation was lost to me. My Associate contacted the parties on 20 March 2023 to arrange a suitable date. The matters were relisted to 30 May 2023 but in anticipation that they could not be accommodated on that day due to continuation of trials, the parties’ representatives were notified of the court’s difficulties and the proceedings re-appointed to 16 June 2023, and thereafter to 23 June 2023.

27. A large amount of material was put before the court for consideration and analysis; however I was assisted with the careful and thorough submissions by both counsel who identified with commendable precision the steps taken in the investigation and prosecution and the evidence relevant to the issues joined.

28. The thoroughness of the submissions filed, to which counsel spoke over the three days the appeals were heard, were such that I was able to adopt the structure of what was written and said by each in consideration and formulation of reasons for the decisions made.

General Principles

32. The appeals are pursuant to the Crimes (Appeal and Review) Act 2001.

33. Section 11 provides relevantly:

(1)   Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).

(1A)   ...

(1B)   ...

(2)   An appeal must be made—

(a)  within 28 days after sentence is imposed, or

(b)  if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,

but (in the case of an appeal against a conviction) may not be made before sentence is imposed.

34. The appeals were filed within the time specified.

35. Section 20 provides:

(1)   The District Court may determine an appeal against conviction—

(a)   by setting aside the conviction, or

(b)   by dismissing the appeal, or

(c)   …

36. I considered sections 18 and 19 in LC v R [2022] NSWDC 19 when I refused the Appellant’s application to have witnesses attend to give evidence but allowed the use of documents sought to be adduced as fresh evidence given that for the most part they were material before the Magistrate for the determination of the issues in that court. There is no need for me to revisit the questions agitated before me on that occasion though the judgement is helpful for the chronology of the proceedings in the Local Court leading to the findings of guilt.

37. I noted in my judgement that the issue joined in the appeals is whether there was authority in the corporation or officers on its behalf to have investigated possible breaches of s 69 of the Act and thereupon commence the prosecution against the appellant. This is much narrower than the task before the Magistrate in what were on the face of things vigorous contests upon an array of matters for determination, and the Appellant’s arguments in the appeals across the Magistrate’s findings to support the contention that the Magistrate erred and intervention of this court is required.

38. There are several principles of which I must be reminded.

39. First, the approach to appeals from convictions in the Local Court was the subject of decisions in the Court of Appeal including Dyason v Butterworth [2015] NSWCA 52; in which it was stated that such an appeal is not an appeal de novo, that the approach to be taken is analogous to that taken on a civil appeal under s 75A Supreme Court Act 1970, the judge to form his or her judgement of the facts recognising the advantage of the Magistrate who heard and saw the witnesses in the Local Court, and that the powers of the District Court under s 18(1) are exercisable where an Appellant demonstrates the order the subject of the appeal is the result of legal, factual or discretionary error, in which case the court can substitute its own decision based on the facts and law as they then stand. The District Court is not compelled in every case to undertake a complete review of the whole of the evidence to form its own view regardless of the issues raised, and the extent of the review required will depend upon the circumstances of the case and the nature of the error alleged: Lunney v DPP [2021] NSWCA 186. (Note the discussion in Criminal Practice & Procedure NSW at [4 s 18.1]

40. By way of general directions, subject to the authorities to which I referred, and to the extent that they must be considered in reaching my findings of fact and circumstance in which the Appellant is said to have offended the provisions, I accept the following propositions:

1. It is for me to assess the evidence of the various witnesses and decide whether they are reliable. Reliability depends upon two overlapping considerations, honesty, and accuracy. Honesty involves considering not only what the witness said, or perhaps did not say, but also the impression that the witness made. The question, to be resolved, is whether the prosecution has proven the guilt of the Appellant beyond reasonable doubt upon evidence admissible in the prosecution case.

2. I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.

3. These are criminal proceedings in which the prosecution has the onus of proof beyond reasonable doubt in respect of every element of the charges.

4. It is not for the Appellant to prove that she did not commit the offences, but for the prosecution to prove, beyond reasonable doubt, that she did. Suspicion is not a substitute for proof beyond reasonable doubt. The Appellant must succeed if any one of the essential ingredients of the charges has not been proved to my satisfaction, beyond reasonable doubt.

5. If I am unable to decide whether the prosecution has proved its case, beyond reasonable doubt, in relation to any essential ingredient, or if I am left unable to decide whether the prosecution has proved, beyond reasonable doubt, that the Appellant committed the offences, and even though I might suspect that the Appellant might have engaged in the conduct upon which the charges are brought, the Appellant is entitled to the benefit of that doubt, and I must allow the appeals.

6. The Corporation relies upon circumstantial evidence in proof of the occupation of the Property by the Appellant’s family, and the wilfulness and purposes of her conduct. Accordingly,

7. I may draw inferences from the direct evidence. They might be valid or invalid, justified, or unjustified, correct, or incorrect. I may only draw an inference adverse to the Appellant from proven facts if such inference is a reasonable inference that can be properly drawn from the proven facts. I should examine any possible inference to ensure that it is a justifiable inference.

1. Because the onus of proof is on the prosecution to prove beyond reasonable doubt every essential element or ingredient of the charges, and that the Appellant committed the offences, any inference or conclusion from basic facts relied upon by the prosecution for this purpose must be a conclusion reached having taken into consideration the material presented on behalf of the prosecution and after having carefully considered the evidence presented by and on behalf of the Appellant, and the submissions of both.

2. There are two steps in this exercise. I must first of all decide whether I am satisfied that the direct evidence establishes the basic facts. These need not be proved beyond reasonable doubt. I examine the evidence with care and consider whether it is reliable before taking the next step and drawing any conclusions from the facts that I regard as established by it. If in my view it is not sufficiently reliable to allow me to conclude what the prosecution asserts after having taken into consideration and given due weight to the submissions of both counsel, I must allow the appeals.

3. If, however I am satisfied that the direct evidence has established the basic facts for which the prosecution contends, then I must consider what inferences I might draw from those basic facts. Whether the inferences for which the Corporation contends are established depends upon the nature of the circumstances relied upon considered as a whole and not individually or in isolation and the degree of clarity and certainty to which the evidence leads to the conclusion that the Corporation has established its case.

4. Before I may draw any inference of the existence of essential matters the Corporation must prove or the Appellant’s guilt I must be satisfied as to the existence of a facts and circumstances from which I am asked to draw the conclusion and I must avoid any speculation or conjecture in arriving at a conclusion that is averse to the Appellant. If such a conclusion is to be drawn beyond reasonable doubt it must be on the basis of a rational and logical process of thought. If there is available an alternative hypothesis consistent with innocence the appeals must succeed.

8. The Appellant gave evidence before the Magistrate and called evidence in her defence. An Appellant in proceedings at first instance may always make a response to the case presented by the prosecution by way of an explanation for the whole or part of a prosecution’s case, but there is no obligation to do so. The Corporation bears the onus of proving, beyond reasonable doubt that the Appellant committed the offences. The Appellant bears no onus. The Appellant is presumed to be innocent unless and until I am satisfied, beyond reasonable doubt, by the Corporation that the Appellant committed the offences. Although the Appellant may give and call evidence in relation to the whole, or any part of the prosecution case, by way of explanation for it, or by way of additional matters which the Appellant may wish to raise, the Appellant may equally have elected to give no such explanation or call any evidence in that regard. The Appellant was entitled to say nothing and make the Corporation prove that she committed the offences. The Appellant’s election to give evidence in the proceedings does not attract any burden of proof. She was entitled to have the court weigh the evidence given, but this does not mean that if the court does not accept the truth or accuracy of her evidence, or any part of it, that it must follow that she is guilty of the offences. Were I to doubt the truth or accuracy of the Appellant’s evidence it remains that I am not to dismiss the appeals unless I accept, beyond reasonable doubt, the truth and accuracy of the evidence led to establish each of the elements of the offences.

The Appellant’s Written Contentions

41. The Appellant summarised the jurisdiction of the court to hear and determine these appeals found in s 11(1) and s 20 (1)(a) Crimes (Appeal and Review) Act 2001. The Crown raised no issue regarding this.

42. The Appellant summarised the history of the proceedings from commencement on 4 September 2015 naming the Corporation constituted by the Act as prosecutor in seven sequences.

43. Separate charges upon the same subject matter were brought against the appellant’s son NC and daughter in law KG Their daughter was born on 4 December 2013.

44. The original Court Attendance Notice was subsequently amended.

45. The offences against the Appellant were summarised in terms consistent with what I provided above though in less detail. However the factual matrix described in substantial detail the facts and circumstances from which the offences are alleged, consistent with my summaries, followed by extensive submissions upon the law relevant to the determination of the appeals and the findings of fact that ought to follow.

The Appellant’s Factual Matrix

46. The prosecutions of the Appellant and her son and daughter in law were heard together, after which the Magistrate found proved some of the charges brought against NC and KG. Each was convicted. There is no challenge in these appeals in respect of their convictions.

47. The lengthy Local Court proceedings included various interlocutory applications brought by the defendants and interlocutory judgements delivered on 5 August 2016, 14 June 2017 and 16 May 2018.

48. The submissions include a summary of uncontroversial background circumstances:

1. The Appellant aged 52 years, a disability support pensioner, remains of modest circumstances.

2. From 2013 she lived in the Property at Lake Haven with her now young adult daughter AB pursuant to a Residential Tenancy Agreement she signed on 30 January 2013. The Property is public housing for the purposes of the Act and the Corporation a statutory corporation established under s 6(1) of the Act.

3. The Residential Tenancy Agreement provided for a fixed term tenancy of six months, with the condition that,

No more than 2 persons may ordinarily live in the premises at any one time.

4. On or about 30 January 2013 the Appellant signed and lodged with the Corporation, also referred to as Housing NSW, an agency of the Department of Family and Community Services, a “Rent Subsidy Application”. Under s 56 of the Act the Corporation had power, after an investigation under s 58, to grant to an applicant a weekly rebate of rental. In the Rent Subsidy Application the Appellant disclosed the occupants of the property as herself and her daughter AB. The Appellant authorised the Corporation to obtain her income details from Centrelink.

5. The Rent Subsidy Application was approved, whereupon the Appellant was entitled to the subsidy on an ongoing basis. The Corporation had power pursuant to s 57(1) of the Act, after investigating under s 58, to vary or cancel any rental rebate granted under Part 7. The Rent Subsidy Application stated:

Important: You must advise Housing NSW in writing within 28 days of any changes to the people in the household, or of any changes to the income or assets of any person in the household.

6. The Rent Subsidy Application did not define or explain the phrase.

… changes to the people in the household,

7. On 8 August 2013 the Corporation wrote to the Appellant confirming that her residential tenancy agreement was subject to a further fixed term for five years from 5 August 2018 (sic.) This must be meant as 2013.

8. Margaret Smith, employed by Family and Community Services, the client services officer for the Property from about February 2013 to May 2015, whilst conducting an inspection of houses in the vicinity of the property in or about August 2014, was given information suggesting that additional people were staying with the Appellant at the Property. Consequently, she sent an email to the Tenancy Fraud Unit of Family and Community Services, stating,

I have had my suspicions that there are unauthorised additional occupants residing at this property but have not been able to gather any evidence.

9. In the email she referred to a neighbour of the appellant having mentioned,

… a number of cars coming and going from the property and there would be at least 3 adults residing there.

10. She included the model and registration numbers for the vehicles observed and asked for investigation of whether they were registered to the property.

11. In response Mr Fadi Chamoun, an “Advocate-Investigator” instructed Ms Smith to assist by issuing the appellant with a General Subsidy Review by letter attaching a Rental Subsidy Application for completion and return. Mr Chouman said in his email to Ms Smith:

NOTE: Client is not to be notified that the review is in relation to the investigation concerning undeclared additional occupants.

12. On 6 November 2014 the Corporation sent the Appellant a letter stating it wished to review her eligibility for a rent subsidy and requesting that she complete a Rent Subsidy Application and Income Confirmation Consent. The Corporation advised:

If you do not contact us or return your information by the above date, we will assume that you no longer wish to receive a rent subsidy and will charge you market rent.

13. The letter advised:

You must tell us in writing within 28 days of any changes to the income or assets of yourself or any household member. It is important that you do this because Housing NSW does not receive this information automatically from Centrelink.

14. On 22 December 2014 the Appellant lodged with the Corporation a Rent Subsidy Application, in which she again disclosed the occupants of the property as herself and her daughter AB.

15. In or about December 2014, Ms Smith attended the property, conducted an inspection, and observed beds in the garage. She gave evidence to the Local Court that she saw,

… personal belongings, a baby change table, baby products, baby nappies.

16. On 13 January 2015 Mr Chouman sent a letter to the Appellant suggesting she might be claiming a subsidy to which she was not entitled and alleged she might have not declared additional occupants at her residence.

17. On 24 February 2015 the appellant lodged with Family and Community Services a further Rent Subsidy Application. On page 2 it asked,

What has changed?

18. In response the appellant ticked the box “Household”, and provided the following details:

Details of change Date Son moved in 20.02.2014 Daughter in law moved in 20.02.2014 Granddaughter moved in 20.02.2014

19. In a telephone conversation on 3 March 2015, the Appellant advised Ms Smith that she had made an error in the Rent Subsidy Application, and that NC and KG moved in during 2015, not 2014. Ms Smith informed the Appellant that she must lodge another Rental Subsidy Application with the updated information.

20. On 5 March 2015 the Appellant provided the Corporation a handwritten letter stating she made an error in the 24 February 2015 application and that NC, KG and their daughter moved into the property on 20 February 2015, not 20 February 2014.

21. The provision of this letter to the Corporation is the subject of Sequences One, Two and Seven.

22. By letter of 13 March 2015 the Corporation requested the Appellant to complete another Rent Subsidy Application and advised,

… If the information [sought] is not provided, we may cancel your rent subsidy and you will be charged market rent.

23. On 20 March 2015 the Appellant lodged a revised Rental Subsidy Application; on page 2 responding to the question “What has changed?” the appellant ticked the box “Household”, and provided the following details:

Details of change Date Son moved in 20/02/2015 Daughter in law moved in 20/02/2015 Granddaughter moved in 20/02/2015.

24. This is the subject of Sequences Three and Seven.

25. On or about 20 March 2015 the Appellant provided an Additional Occupant Form to the Corporation, including the same information, and is the subject of Sequences Four and Seven.

26. About this time, NC and KG made declarations to the Corporation stating that each had moved into the property on 20 February 2015, for reasons associated with the Appellant’s medical issues. The Appellant provided their declarations to the Corporation when she provided the Additional Occupant Form. Provision by the Appellant of those declarations is the subject of Sequences Five, Six and Seven.

27. On 31 March 2015 the Corporation approved NC and KG as occupants of the property. On 1 April 2015 Mr Chouman wrote to the Appellant confirming an appointment for interview,

… regarding outstanding matters under investigation by the Tenant Fraud Unit.

28. On 7 April 2015 the Corporation wrote to the Appellant about her rent subsidy and rent account, advising her rent account was in arrears in light of the additional occupants added to the property. Subsequent civil proceedings brought by the Corporation against the Appellant in the New South Wales Civil and Administrative Tribunal for arears of rent resulted in consent orders and payment of an agreed amount by the Appellant to the Corporation.

29. On 17 April 2015 NC and KG signed statutory declarations stating they were moving to a new residence in Victoria Street, Werrington with their residential address at the time of the declaration as the Property.

30. On 30 April 2015 Mr Chouman interviewed the Appellant, which he said at the commencement concerned evidence the Corporation had received which,

… leads us to believe that you may have not declared occupants – undeclared occupants – in your Housing NSW property…

31. On 4 February 2018 the Corporation approved the Appellant’s extension of her lease for a further five years.

49. Against this factual matrix the Appellant’s submissions turned to “The appellate standard” and the powers of the Court hearing the appeals.

The Appellate Standard

50. Consistent with what I wrote earlier, the submissions note the appellate standard for a conviction appeal brought pursuant to s 18(1) Crimes (Appeal and Review) Act 2001 is correction of error: Dyason v Butterworth [2015] NSWCA 52; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290; Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218.

50. The term "error" has no precise meaning; but requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How this is achieved will depend upon a range of factors relevant to the specific case. The appellate judge is to form their judgement of the facts so far as they able to do so, recognising the advantage enjoyed by the Magistrate who heard and saw the witnesses in the lower court: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265. While the Magistrate’s reasons are not part of the transcript of evidence, recourse may be had to them on appeal; otherwise, the appellate function cannot properly take place: Charara v The Queen (2006) 164 A Crim R 39. The powers of the District Court pursuant to s 18(1) are exercisable (with counsel’s emphasis),

…where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand.

52. In McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 at para [25] Bell P said in respect of an appeal pursuant to s 18,

An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a s 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the Magistrate (supplemented by any further evidence received pursuant to s 18(2) of the CAR Act or as a result of the calling of a witness pursuant to s 19), whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the Court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo cf. an appeal pursuant to s 17 of the CAR Act.

53. The Appellant submits that the scope of the Court’s function in an appeal pursuant to s 81(1) Crimes (Appeal and Review) Act is properly informed by the scope of the issues raised by the Appellant, and thus the Court is not obliged to proceed to review the whole of the record to form its own judgement as to the Appellant’s guilt. Nonetheless, the requirement that the Appellant demonstrates error in the appeal does not reverse the onus of proof, and the prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, [35]. Lunney v Director of Public Prosecutions [2021] NSWCA 186, [29]-[30].

54. The Appellant submits that though the Court is not relieved of conducting a review on the basis of appellate deference to the advantages of the Magistrate, especially where demeanour-based findings are made, for appeals conducted by way of rehearing in respect to demeanour-based credibility findings contemporaneous evidence, objectively provable facts, and apparent logic of events, are likely to be of greater weight than demeanour.

Grounds of Appeal

55. The Appellant describes what were said to be six grounds of appeal in three categories, however there are in total seven grounds.

Category One: Non-compliance by the Corporation with the Criminal Procedure Act 1986 by commencing the prosecution.

Ground One: The Magistrate was in error in failing to dismiss the prosecution because the Corporation was not authorised to bring the prosecution in the manner it did.

Category Two: Errors in the admission of evidence.

Ground Two: The Magistrate erred in the admission of evidence of the record of interview of 30 April 2015 into evidence, or alternatively, erred in treating statements made by the appellant during the interview as admissions.

Ground Three: The Magistrate erred in admitting bank and other documents contrary to the Criminal Procedure Act 1986

Category Three: Errors in findings and approach resulting in the convictions.

Ground Four: The Magistrate asked the wrong question and misconstrued the offence the prosecution was required to prove.

Ground Five: The Magistrate erred in not finding that the Corporation had failed on the evidence before the Court to exclude all reasonable hypotheses consistent with innocence.

Ground Five (sic): The Magistrate made errors in applying the onus of proof.

Ground Six: Separately, and alternatively, the Magistrate erred in convicting the appellant of Sequence Two of the amended Court Attendance Notice.

The Arguments

Ground 1:

The Corporation’s Failure to Comply with the Criminal Procedure Act in commencing the prosecution.

56. The Appellant argues that the Corporation was not authorised to bring the prosecution in the manner it did. As expressed, this implies the complaint is about the manner and form of the investigation rather than whether the Corporation ought to have undertaken the investigation. Nonetheless, in the Local Court the Appellant sought dismissal of the proceedings on grounds including that the Corporation lacked authority to commence the proceedings, and that the Court Attendance Notice was defective failing to meet requirements of the Criminal Procedure Act. The Magistrate delivered judgement rejecting this contention on 14 June 2017.

57. The Appellant does not seek to re-enliven all arguments advanced on her behalf below in relation to the validity of the prosecution, however, for the reasons hereunder maintains that the Corporation lacked authority to prosecute, and that the Magistrate erred in deciding not to dismiss the prosecution on that basis.

58. The Corporation adduced affidavit evidence from its solicitor Mr Nathan Cureton of relevant delegations pursuant to s 15(2) of the Act. [4] Specifically:

    4. At the time s 15(2) provided

1. A delegation of 1 September 2009 signed by the Director-General of the Department of Human Services delegating authority under the Housing Act 2001 to the Chief Executive of Housing NSW, Mr Mike Allen. [5]

   5. In section 3 of the Act are the following definitions:

2. A delegation of 24 September 2009 signed by the Chief Executive of Housing NSW, Mr Mike Allen.

3. A delegation of 1 July 2013 signed by Acting Director-General of Family and Community Services, Mr Jim Longley without the schedule to the delegation; it could not be located.

4. A delegation of 4 August 2015 signed by the Secretary of Family and Community Services, Mr Michael Coutts-Trotter.

5. A delegation of 19 October 2015, signed by Minister Brad Hazzard.

59. Missing from the evidence was a delegation located by the Appellant’s legal representatives from subpoenaed documents in the Local Court proceedings in 2017, signed by Minister Gabrielle Upton, dated 16 January 2015, with general delegation powers under s 5 Community Welfare Act 1987.

60. The Appellant’s contention is that the prosecution was not properly authorised upon the following analysis.

1. A prosecution or proceeding in respect of an offence under the Act may only be instituted by or on behalf of the Corporation: s 74(2).

2. The Corporation was named on the Court Attendance Notice and the amended Court Attendance Notice as the relevant prosecutor. Nonetheless, the Corporation as a statutory entity established by s 6 of the Act can only act through its officers, was subject to the direction and control of the Minister for Family and Community Services: s 6(5), its affairs to be managed by the Secretary of Family and Community Services: s 6(2). The Corporation could not employ staff: s 7(3).

3. No evidence was led in the Local Court or explanation offered as to the mechanism by which public servants employed within Family and Community Services were deemed “officers” of the Corporation in the fulfilment from time to time of the functions or powers of the Corporation. Neither was there any direct evidence that identified who decided the prosecution ought to be brought. The Corporation cannot have instituted the proceedings without an individual making that decision for the purposes of s 74(2).

4. When the prosecution was commenced by filling the Court Attendance Notice on 4 September 2015 the relevant delegation was the delegation signed by Minister Gabrielle Upton, dated 16 January 2015. This operated from 16 January 2015. It contained no delegation for any of the purposes of Part 10 of the Act, including under s 74(2) for the institution of proceedings.

5. The Appellant says this caused a dilemma for the Corporation recognised by its legal representatives, revealed in email in which Ms Jade Lee wrote to Nathan Cureton on 8 November 2016:

I note that the Instrument of Delegation dated 16 January 2014 (relevant to the current proceedings) does not specify any authority to commence prosecution.

6. The Appellant submitted that the delegation signed by Minister Upton applied in this case, notwithstanding the subsequent delegation issued on 14 August 2015 by Mr Michael Coutts-Trotter, because the Corporation was subject to the direction and control of the Minister.

7. In any event the delegation issued by Michael Coutts-Trotter did not purport to replace or overcome the delegation by Minister Upton, which invested no power in any relevant officer to authorise or commence a prosecution.

8. The Secretary of the Corporation could commence the prosecution, absent delegated authority: s 6(3). However, the proceedings were commenced in the name of the Corporation. There was evidence purporting to demonstrate that Mr Vevers, Deputy Secretary, Family and Community Services, authorised or approved the prosecution, but it did not establish what he sought to approve.

9. In any event, Mr Vevers was not the Secretary of Family and Community Services.

10. For these reasons the Magistrate erred in failing to find that the prosecution was invalid.

61. It appears to me that the Appellant’s analysis here is flawed:

1. Section 6, as it was, provided (my emphasis),

6   Establishment of New South Wales Land and Housing Corporation

(1)   There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation.

1. The affairs of the Corporation are to be managed by the Director-General.

1. Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation.

   (4)   The Corporation is, for the purposes of any Act, a statutory body representing the Crown.

   (5)   The Corporation is subject to the direction and control of the Minister.

   (6)   (Repealed)

   (7)   The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department.

   (8)   The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act.

   1. The terms of sub section 6(3) must mean that the Director-General, may delegate within the terms of the provision.

   2. Section 74 of the Act provides,

   74   Proceedings for offences

   (1)   Proceedings for an offence against this Act or the regulations may be disposed of summarily before the Local Court.

   (2)   A prosecution or proceeding in respect of an offence under this Act may only be instituted by or on behalf of the Corporation.

   3. The plain words used in sub section 74(2) make clear that a prosecution such as this under the Act may only be instituted by or on behalf of the Corporation. I do not accept as correct that there was no evidence of how the decision to prosecute came about, but if it were so, it does not follow that evidence was necessary other than to show that the institution of the prosecution was by or on behalf of the Corporation with reference to the legislative and administrative scheme whereby the functions of the Corporation, including for the prosecution of offences, are authorised by appointed delegates.

   4. The submission that the delegation signed by Minister Upton applied in this case, notwithstanding the delegation issued on 14 August 2015 by Mr Michael Coutts-Trotter, because the Corporation was subject to the direction and control of the Minister I do not accept. It overlooks the terms of the provision constituting the Corporation in section 6:

   5. The Ministerial function of direction and control does not detract from the scope of the functions of the Corporation performed by the Secretary of the Department of Human Services, or the Director-General of the Corporation, or their delegates, or upon the operation of the Community Welfare Act 1987 mentioned below.

   6. I reviewed the Community Welfare Act 1987. The term Department in s 3 to mean the Department of Family and Community Services. Powers given the Minister are articulated in s 6. The powers of delegation re provided in s 5:

   5   Delegation

   (1) The Minister may delegate to the Secretary, or to any other person, the exercise of any of the Minister’s functions under the community welfare legislation, other than this power of delegation.

   (2)   The Secretary may delegate to any person the exercise of—

   (a)  any of the functions delegated to the Secretary by the Minister, or

   (b)  any of the other functions of the Secretary under the community welfare legislation, other than this power of delegation.

   (3)   In this section, a reference to the community welfare legislation includes a reference to each of the following Acts (and to any instrument under the Act) even though the Act may not be administered by the Minister within the Department—

   Children (Criminal Proceedings) Act 1987

   Children (Protection and Parental Responsibility) Act 1997

   (4)   However, a reference to community welfare legislation in this section does not include a reference to the Boarding Houses Act 2012 even if it is wholly or partly administered by the Minister.

   7. In s 3 the term community welfare legislation means,

   (a)   this Act and any other Act administered by the Minister within the Department, and

   (b)   any instrument under this Act or any other such Act,

   8. The chronology of events includes:

   1. On 16 January 2015 the Upton delegation took effect (subject to the error in the instrument of delegation with the handwritten date on page one of 16/1/15 and on page two of 16/1/14 with what appear to be the minister’s initials, and the assertion on page two that the instrument takes effect from 16 January 2015.). There is no delegation of 16 January 2015 other than the Upton delegation with the anomaly. Relevant email referred to the delegation of 19 October 2015 by Minister Brad Hazzard.

   2. 5 March 2015, date of the offences charged in Sequences One and Two.

   3. 20 March 2015, date of the offences charged in Sequences Three, Four, Five and Six.

   4. 14 August 2015, delegation by Michael Coutts-Trotter (Secretary of Family & Community Services).

   5. 4 September 2015. proceedings commenced.

   6. Thus the proceedings were commenced after the delegation by Michael Coutts-Trotter, which I accept was proven to authorise the prosecution.

   62. I do not accept the Appellant’s submissions upon this point for my reasons herein and those offered by the Respondent to which I later refer.

Errors in the admission of evidence

Ground 2:

The Magistrate erred when admitting evidence of the record of interview of 30 April 2015, or alternatively, in treating statements made by the appellant during the interview as admissions

63. The Appellant argues that the Magistrate erred when admitting evidence of the record of interview, or alternatively, in treating statements made by the Appellant during the interview as admissions, or in failing to exclude the evidence of the admissions considering the circumstances in which the admissions were made.

64. The Appellant submits that Fadi Chouman, the “Advocate Investigator” at Family and Community Services, had no authority to conduct the interview, that he and the Corporation had no authority to investigate to discover fraud suspected of the Appellant, and consequently this affected the admissibility of the record of interview upon the application of the Evidence Act 1995. The Appellant referred to Fadi Chouman’s affidavit of 1 March 2017.

65. The Appellant submitted these questions:

1. First, whether the Corporation was permitted to investigate the Appellant in the absence of any statutory or other authority to do so.

2. Secondly, if statutory or other authority was required, whether it existed.

3. Thirdly, assuming negative answers to the first and second questions, whether the Magistrate erred admitting evidence obtained in the investigation.

66. For the first question the Appellant submitted the Corporation was constrained in the investigations it was permitted to undertake upon the following analysis:

1. In the Act, Parliament invested the Corporation with certain investigative powers to be employed for certain purposes, but not beyond, reflected by the inclusion of Part 7 and in particular s 58, and s 68. Part 7 provides for rental rebate.

2. S 58 in Part 7 provides for investigations of applications:

(1)   The Corporation may make an investigation to determine the weekly income of:

(a)   a person who is an applicant for, or a recipient of, a rental rebate under this Part, and

(b)   any other resident of the house in which that person resides.

(2)   The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person’s weekly income and of the weekly income of any other resident of the house in which that person resides

3. S 68 found in Part 10, Miscellaneous Provisions, provides for investigations at the instance of the minister:

(1)   The Corporation may, and whenever required by the Minister must, conduct investigations as to the methods that should be adopted to ensure the provision in the State of adequate housing accommodation on reasonable terms or at reasonable rentals.

(2)   The Corporation must furnish the Minister with a report setting out the results of any investigation made under this section.

4. There was at the material times no other provision empowering a broader investigative function in the Corporation.

5. Parliament addressed this with the Residential Tenancies and Housing Legislation Amendment (Public Housing-Antisocial Behaviour) Act 2015 commenced on 18 December 2015 amending the Housing Act 2001 with the introduction of s 69C. This provides,

69C   Power to obtain information, documents and evidence to prevent or investigate fraud

(1)   For the purposes of preventing or investigating fraud against the Corporation or the Secretary, the Corporation or the Secretary (as the case requires) may, by written notice, require a person to provide information, produce documents or appear before a person to give evidence and produce documents, as specified in the notice.

(2)   The Corporation or the Secretary is not to make any such requirement if it appears to the Corporation or the Secretary that—

(a)   the person concerned does not consent to compliance with the requirement, and

(b)   the person would not, in court proceedings, be required to comply with a similar requirement on the grounds of public interest, privilege against self-incrimination or legal professional privilege.

(3)   A person who, without reasonable excuse, fails to comply with the terms of a notice given to the person under this section is guilty of an offence.

Maximum penalty—20 penalty units.

6. These provisions indicate that the intention of Parliament was that the Corporation did not have “a plenary power”, that is to say, it did not have unqualified or unfettered power to embark upon investigations even of frauds against the Corporation.

7. The limitation of investigative powers given by this legislation is consistent with the tenant’s right to quiet enjoyment and non-interference from the landlord protected by s 50 Residential Tenancy (sic) Act 2010.

67. For the second question, the Appellant submitted that the investigation conducted from in or about December 2014 was without authority under the Act or otherwise empowering the Corporation to investigate fraud as undertaken in this instance:

1. The powers given to the Corporation were constrained by s 58 of the Act limited to investigations to determine the weekly income of an applicant for or a recipient of a rental rebate and of any other resident of the house in which that person resides.

2. It is well-established that the purpose in s 58 of determining the weekly income of the relevant persons must be a purpose of the investigation but need not be its sole or ongoing purpose: New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431, [38].

3. The Appellant concedes the Corporation might have been entitled to investigate the prospect of fraud by a tenant, ancillary to or in connection with an investigation empowered under s 58 of the Act, but upon the evidence of the Corporation and Fadi Chouman the purpose and focus of the investigation was to discover fraud by the Appellant from the suspected unapproved occupancy of the property by her family and did not investigate under s 58.

4. The Magistrate erred accepting or assuming the investigation conducted by the Corporation through Fadi Chouman was one authorised under Part 7 of the Act.

5. McCallum J in Twaddell v New South Wales Land and Housing Corporation [2014] NSWSC 7, at [41]:

…it would be false logic to conclude that, since an inquiry to determine income requires identification of the relevant persons, an inquiry to identify the relevant persons is an inquiry to determine income.

6. Here, as in Twaddell, at [47],

… there was no attempt to obtain any information as to [the appellant’s] income [or the income of any other person].

7. Fadi Chouman in evidence on 30 July 2018 about the nature of the investigation (including in respect of the Appellant) said the investigation was not necessarily just about showing that NC lived at the premises (Transcript at page 25.22). He said his investigation “involves” investigating income and undeclared income (Transcript at page 25.14).

8. The Corporations was not concerned with investigating income or undeclared income, otherwise Mr Chouman would have interviewed NC and KG about their income for the relevant period. He did not interview either (Transcript page 22.36), did not ask the Appellant any question about their income, and made no enquiries of anyone about the income of any suspected additional occupant at the property. Fadi Chouman investigated solely upon the question of fraud, which is supported by communications, including on 26 October 2017 seeking information from Roads and Maritime Services. In email he responded when asked for confirmation of the statutory power under which his request for information was made,

... the Corporation is investigating a fraud against the Corporation.

9. Mr Chouman identified s 69C of the Act as the source of his investigatory power.

10. On 24 June 2015 Mr Chouman wrote to Medicare seeking residential address information for NC and KG and their daughter, representing therein,

… Housing NSW has received an allegation that [NC and KG] who are receiving a benefit from Housing NSW, has failed to properly declare to HNSW their circumstances.

and that

Persons in receipt of a housing benefit are required to notify Housing NSW within 28 days of changes to their circumstances, pursuant to Section 69 and 69A of the [Housing Act]. It is therefore illegal to contravene these provisions and if provided, may result in serious and/or criminal sanctions being imposed.

11. Mr Chouman wrote,

Housing NSW is authorised to undertake an investigation of these matters, pursuant to Section 58 of the Housing Act 2001 (NSW).

12. This provision was irrelevant considering the circumstances and nature of the investigation exposed in the evidence which was not for the purposes for which the provision was enacted. Belief that it was otherwise, and that he said as much to others in the course of his work, does not establish that it was so.

13. Mr Chouman’s investigation had one object only, to obtain evidence of fraud by the appellant, not an investigation the Corporation was empowered or permitted to conduct.

14. The appellant concedes the absence of authority to investigate did not preclude the Corporation from instituting proceedings for offences alleged under s 69 of the Act. These are not subject to a precondition that an investigation be conducted. Nonetheless, the Corporation lacked authority to conduct the investigation undertaken, which requires consideration of the consequences of that lack of authority.

68. For the third question, and the consequences of Mr Chouman holding himself out to the Appellant in writing in advance of the interview and during the interview as an investigator authorised to ask her questions about her tenancy:

1. It was impressed upon the Appellant by letter of 13 January 2015 that if she chose not to attend the interview, Housing NSW,

… may take action to terminate your rental subsidies.

2. The Magistrate ought to have assessed the admissions in the interview with reference to s 138(1)(a) Evidence Act 1995. The admissions were obtained “improperly”.

3. In Parker v Comptroller-General of Customs (2009) 252 ALR 619 French CJ said at para [29] that the relevant ordinary meanings of “improper” include,

… not in accordance with truth, fact, reason or rule, abnormal, irregular; incorrect, inaccurate, erroneous, wrong.

4. Alternatively, the admissions should in the circumstances have been excluded under s 90 Evidence Act.

5. The Magistrate erred in finding the Appellant made the “admissions”. Alternatively, if the Magistrate did not err admitting the record of interview, the Magistrate erred, upon a proper reading of what the Appellant said in response to Mr Chouman, in treating certain answers as “admissions” upon the following analysis:

1. During her interview on 30 April 2015 the Appellant gave responses offered as evidence of admissions and accepted by the Magistrate to be admissions concerning the “full extent” of the occupation of her house by NC and KG: Transcript 4 December 2020 17.27. The Magistrate found the Appellant’s “admission” in the interview with Mr Chouman “confirms that evidence” that,

[NC and KG] were occupants for the vast majority of the time between December 13 and February 15.

2. The Appellant did not make the admissions the Magistrate found.

3. In his judgement addressing challenge to the interview the Magistrate acknowledged,

.. there are aspects of the interview that would suggest it was conducted by a person with limited experience in interviewing techniques and methods.

4. The deficiencies in the interviewing technique and method seriously infected the reliability of the responses as admissions by the Appellant. Consideration of a response offered as an admission requires assessment of the quality of the question posed. Scrutiny of the questions asked and the answers was necessary. The Magistrate failed to do so.

5. Upon a proper examination of the interview the Appellant did not make admissions that the statements she made to Housing NSW were “false” or were “fraudulent device”. At the highest, the Appellant seemed to admit that NC and KG stayed with her extensively but not permanently after the birth of her granddaughter.

6. Mr Chouman put inconsistent, unclear, and confusing propositions to the Appellant, which ultimately led her to admit to certain things:

1. He suggested that she was required to “tell Margaret” NC and KG were staying with her, even though the appellant stated that,

…they stayed a lot longer from the beginning of the year and then permanently moved in at the beginning of February [2015] …

… they have been with me more regularly since all the complications with GC ..

2. that they stayed over only a,

… few weeks at a time”,

3. they were staying,

… not all the time, but most of the time,

4. and

… they hadn’t told me that they wanted to actually permanently move in”.

7. Mr Chouman seemed emboldened by these answers, suggesting to the Appellant that she needed to have told Margaret, [6]

   6. P 23 of the interview line 1.

… I’ve got my son, granddaughter, daughter-in-law coming up consistently, regularly, I hope it’s not a problem.

8. Mr Chouman put words into the Appellant’s mouth. She had not to this point said that NC and KG stayed consistently, or regularly, and it is clear from the Appellant’s response to from Mr Chouman that not only did she say she did tell Margaret (which Mr Chouman did not explore), but she appeared to understand Mr Chouman to be asking her about the “28 day” rule, her understanding of her disclosure obligations under the residential tenancy agreement.

9. At transcript page 23.27 of the interview the Appellant answered,

… I don’t know. I can only apologise …

in response to multi-pronged question.

10. When the Appellant said,

…I made a mistake, …

it is not clear whether the mistake admitted was her understanding or what Mr Chouman suggested to her was a breach of her disclosure obligations under the residential tenancy agreement. Mr Chouman put to the appellant that NC and KG

… were there for a regular and consistent period …

11. It is unclear what a “regular and consistent period” meant. It was unclear, in the context of the statement the Appellant made in the forms that NC and KG had “moved in” on 20 February 2015, whether her admission of them living with her for a “regular and consistent period” meant that she had made a false statement or was admitting to having done so: Interview at pages 20-22, 23.1, 23.7.

12. The Residential Tenancy Agreement provided at clause 39 that the tenant agrees,

… to give the landlord written notice within 28 days of any change of household membership; or to give the landlord written notice when an additional occupant resides in the premises for longer than 28 days.

13. The Appellant participated in the interview without a support person.

14. Mr Chouman asked questions both contradictory and confusing:

Whether it’s not 365 days a year, they’re still living with you. Just for the recording, exactly what date did they move in permanently? This is the last time I’m going to ask you.”

15. This was a contradiction, in that Mr Chouman asked when NC and KG “permanently” moved in, but at the same time suggested that this might mean “not 365 days a year”. What he asked here is open for speculation. The confusing and coercive nature of the question meant that the answer given by the Appellant was unclear.

16. Her confusion appeared at the interview page 24.42 where she added:

They moved in just before GC was born, permanently.

17. Considering Mr Chouman’s suggestion that permanent does not mean “365 days a year”, reliance on the appellant’s statement as an admission that NC and KG moved in permanently, in other words on an ongoing and indefinite basis, was highly prejudicial.

18. At page 25 of the interview transcript the Appellant gave some explanations for “why you didn’t tell Housing NSW”, but it is unclear from the course of questioning what Mr Chouman was suggesting must be disclosed, or how any obligation the Appellant had to inform Housing NSW of the living arrangements of NC and KG connected to the allegation that she had provided a false statement that the couple had moved in on 20 February 2015. Mr Chouman diffused this confusion but added to it by putting to the Appellant that “this is a breach of Housing NSW policy”.

19. In his reasons for judgement, the Magistrate stated that: Transcript of 4 December 2020 page 17.33.

[The appellant] agreed that she knew that she was making a false statement and that she did it to try and help the children …

20. However,

1. The Magistrate had ruled inadmissible a portion of the interview, from page 26, line 28, which included the Appellant’s answer “Yes” to the question asked, “You are admitting that that is a false statement?”

2. Secondly, the Appellant did not say in the interview that she knew at the time she made the statement that it was a false statement.

21. At transcript 4 December 2020 page 17.33 the Magistrate might have been referring to an earlier answer by the Appellant (at page 25, line 33 of the interview transcript) where she answered “Yes” to the question:

Are you also aware that that could be a breach of the section 69(a), 69(2) of the Housing Act? Section 69(1) is failure to notify Housing NSW within 28 days, section 69(1) is making a false statement in a rental subsidy form?

22. However, the question contained multiple questions, was muddled, vague and crucially misstated what the identified provisions of the Act said. The question was unfair, and in the circumstances in which the interview was conducted, it is unclear what the Appellant intended to admit.

6. For these reasons the Appellant contends the manner in which the interview was conducted, the questions asked, and the approach to understanding the answers given including those said to be admissions leads to the conclusion either

1. That the Magistrate erred in admitting the interview into evidence: s 85(3)(b)(i), s 90(b) and s 138 Evidence Act 1995 [7] , or,

   7. 85 Criminal proceedings: reliability of admissions by defendants

2. If the interview was admissible, the Magistrate erred in attributing any weight to the appellant’s answers as admissions to support the conclusions reached that the Corporation had proven the charges beyond a reasonable doubt.

69. I am not persuaded by these arguments.

70. I do not accept that it is correct to say that the Corporation could not as part of its management function investigate conduct in breach of the provisions imposing obligations upon tenants to provide when the need arises accurate and truthful information regarding their circumstances and any change to them upon which entitlements would be adjusted.

71. Moreover, s 69B of the Act provided for access to information held by other agencies for the prevention, investigation, and prosecution of fraud.

72. No prosecution for offences under the Act, for which it provides, commences in a vacuum and without grounds upon which to bring the proceedings, for which there is scope as was submitted on behalf of the Respondent for the investigation that was performed in this case.

73. I am not persuaded of the arguments advanced upon the aforementioned provisions in the Evidence Act. I note that the Respondent suggests that the Appellant has not adequately addressed the impact of these provisions upon the interview process, but I accept that the Appellant’s submissions at least generally attract consideration of the provisions. This said, I have considered the evidence upon which the Magistrate reached his conclusions upon the conduct of the interview and the evidential value of the responses and do not accept that the nature of the questions and the manner in which they were put render the responses inadmissible upon the grounds that the truth of the admissions was adversely affected, or that it was unfair to use the evidence as evidence of admissions. I do not accept that the evidence accepted by the Magistrate reveals any impropriety such as to engage section 138 Evidence Act 1995.

Ground Three

The Magistrate erred in admitting the bank and other statements contrary to the Criminal Procedure Act 1986

74. The Court had in evidence bank statements for:

1. Greater Bank (account XXX695 and account XXX909) – Exhibit 42.

2. St George Bank (account XXX173 and account XXX527) – Exhibit 41.

3. Commonwealth Bank (accounts XXX972, XXX563 and XXX237) – Exhibit 54.

4. Documents tendered by the prosecution to show the residential addresses nominated by the Appellant, NC, and KG: Transcript 4 December 2020 page 7.1. These were part of the prosecution brief of evidence for the purposes of s 183(2) Criminal Procedure Act 1986. [8]

   8. 183 Brief of evidence to be served on accused person where not guilty plea

75. Most of the Bank Documents and Address Documents were not served in accordance with s 183(3) of the Criminal Procedure Act, which required,

The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.

76. The prosecution served a statement of Mr Chouman of 10 February 2016 to which were annexed some of the Address Documents.

77. The trial commenced on 8 June 2016. Defence counsel for NC indicated an objection to the “allegedly the bank records of NC” served just prior to the commencement of the trial: Transcript 8 September 2016, page 2.37.

78. Further documents were served by the prosecution on the appellant directly on 29 September 2016. The defence raised an objection upon the late service of the Address Documents when the matter was next before the Court on 13 October 2016.

79. The duty on the prosecution to serve the brief of evidence crystallises once a date to commence the hearing is fixed: DPP v West (2000) 48 NSWLR 647, 658-659 (Mason P). [9]

    9. Subject to the discretion in sub sections 187(4) and 188(2)

80. The Magistrate erred in failing to deal with the documents pursuant to s 183(4) or s 187(1) Criminal Procedure Act 1999. Accordingly, those of the Address Documents relied upon by the Magistrate were inadmissible: s 188. The Address Documents were ultimately of critical significance to the Magistrate’s findings of guilt: Transcript 4 December 2020 pages 7.1-11.27.

81. Considering the Magistrate’s failure to comply with the requirements of these provisions the convictions entered upon the findings of fact based in part, but materially, on those documents should be quashed.

82. I am not persuaded of the merit of this submission largely for the reasons offered by the Corporation to which I shall come. The protraction of the proceedings in the Local Court gave the Appellant ample opportunity to consider and respond to these documents, which the transcript reveals in the cross examination of the witnesses called to address them. In the circumstances the ameliorating effect of section 188(2) was justified.

Errors in findings and approach resulting in the convictions.

Ground Four: The Magistrate asked the wrong question and misconstrued the offence the prosecution was required to prove.

Ground Five: The Magistrate erred in not finding that the Corporation had failed on the evidence before the Court to exclude all reasonable hypotheses consistent with innocence.

Ground Five (sic): The Magistrate made errors in applying the onus of proof.

Ground Six: Separately, and alternatively, the Magistrate erred in convicting the appellant of Sequence Two of the amended Court Attendance Notice.

83. The Magistrate asked the wrong question, and misconstrued the offence the prosecution was required to prove:

1. The Corporation alleged the Appellant had asserted to the Corporation in a number of different forms that NC, KG, and their daughter “moved in” to the property on 20 February 2015, and that the Appellant knew at the time the statements to be false because NC, KG and their daughter “had been occupants of the Property since at least 10 December 2013”: Amended Court Attendance Notice.

2. Making the “false statement” in the various forms underpinned each of the seven sequences in the Amended Court Attendance Notice. Asserting as a fundamental premise to each sequence that the statement NC and KG were moved in on 20 February 2015 was false, the Corporation had to establish beyond reasonable doubt that NC and KG had not moved in on that date, or at least that the Corporation exclude as a reasonable hypothesis that NC and KG were not living at the property up to February 2015.

3. The circumstances in which the alleged false statements were made were important but not properly considered by the Magistrate.

4. The Appellant was not asked in any of the forms she completed in March 2015 to provide details of all occupants of the premises in or since December 2013, or for any other month, or for any other period between December 2013 and February 2015. [10]

   10. I do not accept this characterisation. The question is not what she was not asked, but what she was asked and whether her responses were true and accurate or deliberately false.

1. The charges against the Appellant were proven beyond a reasonable doubt; and

2. All reasonable hypotheses consistent with innocence reaching a level above mere conjecture had been excluded by the Corporation beyond a reasonable doubt.

247. I agree.

The learned Magistrate made errors in applying the onus of proof

248. At [97]-[102] of Submissions, the Appellant contends that the Magistrate incorrectly reversed the onus of proof from the Corporation as prosecutor to the Appellant such that effectively the Appellant had to prove her innocence.

249. On any fair reading of the 2020 Reasons this appeal point is not tenable.

250. The Magistrate was aware of and applied the onus of proof to the prosecution as can be observed from the following passages of the 2020 Reasons:

1. Page 4, line 44 of the 2020 Reasons, it states:

Apart from the statements made by LC in her record of interview, the Prosecution rely on a confluence of circumstantial evidence to prove their case. There is no direct evidence that NC and KG moved into the house prior to February 15;

2. Page 12, line 33 of the 2020 Reasons, states

Whilst the prosecution bears the onus of proof, at all times, LC did give evidence as to where NC and KG were living.” (Emphasis added);

3. Page 13, line 24 of the 2020 Reasons states:

Again, I emphasise that, at all times, the prosecution bears the onus of proof and it is not for the defendants to prove where they were living, however, I do note that despite LC giving evidence and making statements that NC and KG lived at a number of other locations from 2013 to 2015, there is no documentary evidence that supports any address other than the LC address. (Emphasis added);

4. Page 21, lines 19-48 of the 2020 Reasons, including:

Is there a reasonable hypothesis consistent with innocence? If there is a reasonable hypothesis consistent with innocence of the accused, then I would have to find that the prosecution had not satisfied me beyond a reasonable doubt as to their guilt. …

… A common mistake in circumstantial cases is that it is often said that if a defendant simply makes a statement that would exculpate him or her, then that is a hypothesis consistent with innocence. That is not and has never been a correct statement of the law.

What the law requires is that if there is a hypothesis consistent with innocence, that hypothesis has to be supported by the evidence in the case. A statement by an accused that he was not present at the scene of the crime is not a reasonable hypothesis unless there is evidence to support that proposition.

and

5. Page 25, line 17 of the 2020 Reasons, states:

I accept that the Corporation, at all times, bore the onus of proving beyond a reasonable doubt that this statement was false and that LC did not have to prove anything. However, once LC gave evidence, one would have expected her to give clear, precise, consistent evidence as to the date and the circumstances of them moving in. Her evidence did not bear any of those characteristics. (Emphasis added).

251. These passages are consistent with an accurate application of the law relating to burden of proof on the prosecution and for a criminal prosecution based upon circumstantial evidence.

252. In a circumstantial case, for an inference to be reasonable it must rest upon something more than mere conjecture or a bare possibility: The Queen v Baden-Clay bid at [47].

253. As the fundamental principle remains in a circumstantial case that the Crown must prove the charge beyond reasonable doubt, a defendant is not obliged to establish that an inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: The Queen v Baden-Clay ibid at [62].

254. The trial judge can invite defence counsel to state any reasonable hypothesis consistent with innocence that may be put to the jury in the summing up: The Queen v Baden-Clay ibid at [60].

255. Where an accused with peculiar knowledge of the facts is silent and could not be the subject of evidence from another source, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused: The Queen v Baden-Clay ibid at [50].

256. The Crown must prove its case beyond reasonable doubt so where the evidence relied upon by the Crown may give rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged the Crown has not proven the charge: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126].

257. In a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Baden-Clay at ibid [47]. The evidence must be considered as a whole and not by a piecemeal approach to each individual circumstance: The Queen v Hillier ibid at [46].

258. In R v Doyle [2018] QCA 303 at [29]-[32] Sofronoff P (with whom Douglas J agreed) explained the concept of mere conjecture as follows (footnotes omitted):

29   In my respectful opinion this submission misunderstands the well-established proposition that, in a circumstantial case, in order to secure a conviction the Crown only has to exclude every reasonable hypothesis consistent with innocence. It is important to appreciate that the word ‘reasonable’ does not mean ‘logically open in theory.’ Many inferences might be open as a matter of theoretical logic but which, in truth, are entirely unrealistic. Various terms have been used to describe such unreal, but theoretically possible, inferences. They have been called ‘light’ or ‘rash’ and they have been described as ‘mere conjecture.’  An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility or, if one prefers, upon ‘something more than mere conjecture.’  It must be based upon evidence.

30   In Peacock v The King, O’Connor J said:

‘In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner’s guilt, it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved.’

31   It is for the jury to determine whether a supposed hypothesis consistent with innocence is or is not reasonable in this sense. Hypotheses consistent with innocence cease to be reasonable when there is no evidence to support them, particularly when that evidence, if it exists, must be within the knowledge of the accused.

32   The hypothesis urged in this case was unreasonable in that sense. It was theoretically possible that somebody had borrowed the appellant’s car and that person had then committed the offences. It was also possible that someone had stolen the car and had then committed the offences. Such things do happen. In the sense of being possibilities, these theories were not irrational. However, the principle under consideration requires more than a theoretical possibility. There must be evidence to support such a hypothesis. There was no such evidence in this case. What is more, the person who could have given evidence about those matters if they were true was the appellant. He chose not to do so. The jury would have been wrong to base an acquittal upon mere theories.

259. In Moore v R [2016] NSWCCA 185 at [37]-[38] Basten JA (with whom RA Hulme JJ agreed) explained:

37   Further, it was necessary for that the possibility that the accused held a particular belief to be a reasonable (and not fanciful or entirely speculative) possibility in order for the doubt to be reasonable. That answer is consistent with the language and reasoning adopted by Barwick CJ in Viro, set out above.

38   In a sense, the requirement that a doubt be ‘reasonable’ requires a juror who has formed such a doubt to interrogate the basis of the doubt. That is not to say that it will be done in these terms, and the High Court has disparaged any suggestion that a juror be required to interrogate his or her thought processes. Nevertheless, the doubt will not be ‘reasonable’ if there is no reasonable ground to entertain it.

260. The Trial Magistrate’s explanation of the principles relating to circumstantial evidence in a criminal prosecution were consistent with the above legal principles.

261. In the present case, the Appellant by her oral evidence asserted that NC and KG were living with a friend and a sibling on the Central Coast and that explained why the Bank Statements would show so many transactions on the Central Coast. However, apart from the oral evidence of the Appellant, no other evidence before the Court corroborated the explanation as a reasonable possibility, but to the contrary, the evidence taken together overwhelmingly pointed to NC and KG living in the Property from December 2013 to 19 February 2015. Accordingly, the explanation that NC, KG and GC were living with a friend or sibling on the Central Coast did not enliven a reasonable doubt for there was no reasonable grounds open from the evidence upon which to entertain it as a possibility.

262. Similarly, there was no evidence given by the Appellant or anyone else that NC and KG used the Property only as a mailing address, a mere theoretical possibility not established as reasonable on the evidence before the Court. It rose no higher than mere conjecture. The only evidence that came close to it was the Appellant’s assertions that NC and KG used the address to access ongoing medical services, but this was not corroborated by other evidence before the Court, was contrary to the admissions in the ERISP, and did not explain the use of the address for NC’s employers and his insurers.

263. Accordingly, there was no error by the Trial Magistrate in respect of understanding and applying the onus of proof in this proceeding.

264. I agree with this submission.

Separately, and alternatively, the learned Magistrate erred in convicting the Appellant under sequence four of the Amended Court Attendance Notice

265. At paras [103]-[104] of Submissions, the Appellant contends that the Magistrate erred finding the Appellant guilty of sequence four in the Amended Court Attendance Notice because:

1. There is said to be no finding that the Appellant deceived or set out to deceive any officer or employee of the Corporation;

2. The Amended Court Attendance Notice did not identify with any precision the identity of the “Officer” the Appellant is alleged to have set out to deceive; and

3. The Corporation itself cannot employ any staff.

266. The Corporation notes that this appeal point and argument about the drafting and interpretation of sequence four of the Amended Court Attendance Notice does not appear to have been raised as a submission by the Appellant at trial. It is raised for the first time in this appeal. Nonetheless, the Corporation submits that this last ground of appeal should also be rejected as incorrect.

267. Sequence four is to the effect that contrary to section 69(1)(a) Housing Act, the Appellant made a false statement, by the 20 March 2015 Additional Occupant Forms [Trial exhibit ten, Appeal exhibit 9], stating that NC, KG and GC moved into the Property on 20 February 2015 instead of from at least 10 December 2013. The Appellant wilfully made the false statement to deceive the officer or employee of the Corporation who should consider the Additional Occupant Form in relation to obtaining a rent rebate or rent subsidy from the Corporation for the Appellant.

268. The Magistrate in the 2020 Reasons found all charges against the Appellant proven. The Magistrate found that the Appellant made the false statements and used the fraudulent devices to hide that NC, KG and GC had moved into the Property and lived there since at least December 2013 and up to 19 February 2015. The Magistrate found the Appellant did this to keep the accommodation at the Property for herself and NC, KG and GC and to avoid the rental increase that caused by reduction or cancellation of the rent rebate.

269. The officer or employee the Appellant set out to deceive is alleged in sequence four, and found proven beyond a reasonable doubt by the Magistrate, as

… the officer or employee of the Corporation who should consider the Additional Occupant Form in relation to obtaining a rent rebate or rent subsidy from the Corporation for the [Appellant].

270. There is no requirement in s 69(1) of the Act that the officer or employee should be identified by name. The Appellant at no time ever sought further and better particulars of the identity of the officer or employee referred to in the original or amended Court Attendance Notice.

271. The officer or employee is identified in the Amended Court Attendance Notice as the person, whomever he or she may be, who is the officer or employee that would consider the Additional Occupant Form in relation to obtaining a rent rebate from the Corporation after it was lodged by the Appellant with Family and Community Services Housing NSW.

272. The Appellant’s submission that s 7(3) of the Act states that the Corporation cannot employee staff, ignores the note to s 7 that states:

Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the Corporation to exercise its functions.

273. Sections 6 and 7 of the Act reflect that the staff employed by Family and Community Services NSW are the officers and employees of the Corporation, of which there is evidence by way of Schedule A to each delegation in evidence.

274. Accordingly, it was open to the Magistrate to find that sequence four of the Amended Court Attendance Notice was proven beyond a reasonable doubt and this ground of appeal should also be rejected.

275. I agree with this submission.

Consideration

276. Further reflection upon the evidence, the findings by the Magistrate which I accept were open to his Honour, and which I accept to be the appropriate findings in the matter, and upon the legislation and principles and their application here, is unnecessary considering the depth of the submissions made and my comments upon them as I brought them to mind.

277. I accept that the Corporation has proven each of the offences charged for the reasons given, and that the appeals from the convictions therefore fail.

Orders

278. In respect of each of the Sequences, One through to and including Sequence Seven I dismiss the appeals from conviction.

**********

Endnotes

(1) A person must not wilfully make any false statement or representation:

(a) to obtain or claim from the Corporation accommodation or a rental rebate, or any other advantage or concession, or

(b) to deceive any officer or employee of the Corporation in relation to obtaining accommodation or a rental rebate, or any other advantage or concession from the Corporation, or

(c) to affect the rate or amount of any rental rebate from the Corporation.

Maximum penalty: 3 months imprisonment or 20 penalty units, or both.

(1) ….

(2) A person must not by means of personation or any other fraudulent device obtain or claim from the Corporation accommodation or any rental rebate or any other advantage or concession.

Maximum penalty: 3 months imprisonment or 20 penalty units, or both.

(1) …

(2)

(3) A person:

(a) …, or

(b) …, or

(c) who aids, abets, counsels or procures or by act or omission is directly or indirectly concerned in the commission of such an offence,

is guilty in the same degree and liable to the same penalty as the principal offender.

(2) The Director-General may delegate to an officer of the Department, or to the Corporation, the exercise of any of the Director-General’s functions under this Act (including any function delegated to the Director-General under this section), other than this power of delegation.

“Department” means the Department of Human Services.

“Director-General” means the Director-General of the Department.

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—

(a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or

(b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account—

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning—

(i) the nature of the questions and the manner in which they were put, and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

…is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning—

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.

(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include—

(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and

(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.

(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.

(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.

187 When brief of evidence need not be served

(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied—

(a) that there are compelling reasons for not requiring service, or

(b) that it could not reasonably be served on the accused person.

(2) The court may make an order under this section on its own initiative or on the application of any party.

(3) An order may be made subject to any conditions that the court thinks fit.

(4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.

(5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations.

188 Evidence not to be admitted

(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.

(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.

(1) A person must not, with the intention of retaining or continuing to obtain a benefit to which the person knows that he or she is not entitled, fail to notify the Corporation of any relevant change of circumstances within the time specified in subsection (2).

Maximum penalty: 3 months imprisonment or 20 penalty units, or both.

(2) The Corporation must be notified under subsection (1) within 28 days after the person first becomes aware of the relevant change of circumstances.

(3) In this section:

“benefit” means any accommodation, rental rebate or any other advantage or concession from the Corporation.

“relevant change of circumstances” means a change in the person’s circumstances that will remove or reduce the person’s entitlement to a benefit.

Amendments

07 July 2023 - Name of counsel for the Respondent corrected