Pearce v Jennings and Luttrell

[1987] TASSC 101

Serial No B31/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Pearce v Jennings and Luttrell [1987] TASSC 101; B31/1987

PARTIES:  PEARCE
  v
  JENNINGS
  LUTTRELL

FILE NO/S:  LCA 29/1987
DELIVERED ON:  9 July 1987
JUDGMENT OF:  Green CJ

Judgment Number:  B31/1987
Number of paragraphs:  10

Serial No B31/1987
List "B"
File No LCA 29/1987

PEARCE v JENNINGS and LUTTRELL

REASONS FOR JUDGMENT  GREEN CJ

9 July 1987

1. The appellant was charged with the following offences:

1. Complaint 2815/87 dated 20 February 1987: three counts of imposition contrary to s29B of the Crimes Act 1914 which were alleged to have been committed on 31/2/82, 21/0/84 and 26/11/84.

1. Complaint 1422/87 dated 23 January 1987: one count of imposition contrary to s29B of the Crimes Act 1914 which was alleged to have been committed on 3/9/85. The particulars of the charge were as follows:

   "That Sally Maree PEARCE on or about the 3rd day of September, 1985 at Bellerive in Tasmania did impose upon the Commonwealth by means of an untrue representation to wit by presenting to the Department of Social Security a document entitled 'Clients Report' in which in answer to the question, 'Please advise if you are still working', the defendant answered 'No' which answer was false in that she was employed by Royal Hobart Hospital in the name of Sally Lee WEBB and was in receipt of wages."

2. Complaint 1421/87 dated 23 January 1987: 43 counts of obtaining payment of a benefit which was not payable contrary to s138(1)(b) of the Social Security Act 1947. The offences are alleged to have been committed between 20 October 1984 and 12 June 1986. The following count is typical:

"THAT SALLY PEARCE on or about the 20th day of October 1984 at Bellerive obtained payment of a benefit to wit an instalment of a Supporting Parents Benefit in the sum of $295.80 to which she was not entitled in that at the time the benefit was paid the defendant was employed by the Royal Hobart Hospital in the name of Sally Webb and in receipt of income from that employment."

1. All three complaints came on for hearing before a magistrate at the same time. After hearing submissions from both parties the learned magistrate in the exercise of his discretion ordered that complaints 2815/87 and 1422/87 be dealt with summarily. This is a motion to review those orders.

1. The learned magistrate's exercise of his discretion was influenced by, inter alia, the following findings or conclusions:

AThat the charge of imposition in complaint 142287 "related to" an amount of $300.60.

BThat what was alleged against the defendant in respect of all the complaints was a course of conduct whereby the appellant obtained benefits to which she was not entitled.

CThat the conduct constituting the offences against the Crimes Act was identical to that which constituted the offences against the Social Security Act.

DThat complaint 281587 alleged breaches of s29B of the Crimes Act rather than breaches of the Social Security Act 1947 only because proceedings in respect of the latter would have been statute barred.

1. The material upon which the magistrate made those findings consisted of the complaints, an oral reference by counsel to some particulars which had been delivered and statements from the bar table. For the following reasons I hold that those materials were not sufficient to sustain the above findings:

1The statements from the bar table were imprecise and their status was uncertain. It was not clear whether they were mere assertions of fact, statements of agreed facts, statements of particulars of the charges, or an indication of the evidence which the complainant was intending to adduce.

2The statement of the charge in complaint 142287 contains no allegation which would support an assertion that it "related to" an amount of $300.60 or any amount. The learned magistrate was told from the bar table that an amount of $300.60 was "involved" in that charge, but in the absence of particulars or a statement of agreed facts which showed precisely how that amount was involved in the charge, such as for example, particulars or an agreed statement of facts showing that the applicant made the representation with a view to obtaining $300.60, or alternatively that the applicant obtained $300.60 as a result of the representation, that assertion is too vague to support any finding upon which a court would be entitled to act.

3The elements of the offences created by s29B of the Crimes Act and s138(1)(b) of the Social Security Act are different from each other: the mental elements are different and obtaining money is an essential ingredient of the latter, but not the former – see Bacon v Salamane (1960) 112 CLR 85 at p.92. Thus, although it is possible that some of the applicant's acts constituted elements which were common to both offences, it is not possible that the conduct of the applicant which constituted one offence was identical to the conduct which constituted the other offence.

4It was conceded before me that the statement made from the bar table upon which the magistrate based his finding in paraD above, was incorrect.

1. I am not satisfied that the learned magistrate's findings set out above were not material and I am therefore satisfied that the exercise of his discretion miscarried. I do not need to consider the other grounds of this motion.

1. The motion is allowed and the orders made by the learned magistrate are quashed. As further submissions would have to be received before the discretion as to the appropriate forum for the hearing of these charges could be properly exercised and because it is prima facie preferable that such a discretion be exercised in a Court of Petty Sessions, I am not persuaded that I ought now to proceed to exercise my own discretion.

1. I order that the hearing of all three complaints be recommenced before a magistrate.