Poniatowska v Director of Public Prosecutions (Cth)

The appeal concerned the conviction and sentence of the appellant, Ms Poniatowska, who had pleaded guilty to 17 counts of obtaining a financial advantage from the Commonwealth contrary to s 135.2 of the *Criminal Code* (Cth). The dispute arose from the appellant's failure to advise Centrelink of changes in her financial circumstances while receiving parenting payments, leading to her receiving payments to which she was not entitled. The appellant appealed against the decision of the magistrate to record a conviction on each of the 17 counts. A single judge of the Supreme Court of South Australia dismissed her appeal, and she subsequently filed a further notice of appeal to the Full Court.

The Full Court was required to determine whether s 135.2 of the *Criminal Code* could be committed by way of omission, and if so, whether such an omission would only attract criminal liability if it constituted a failure to perform a pre-existing legal duty or obligation. Further, the Court considered whether the complaint was defective, either because the alleged conduct did not amount to an offence, or because the admitted facts could not support the charges as laid, or by reason of a failure to identify the relevant transaction, act, or omission.

The majority of the Court (Doyle CJ and Duggan J) held that an offence under s 135.2 of the *Criminal Code* could indeed be committed by omission. However, they reasoned that for an omission to attract criminal liability under this section, it must constitute a failure to perform a legal obligation. The Court found that s 135.2 itself does not create a legal obligation to act or refrain from omitting. Consequently, the appellant could not, in law, have been convicted of the offences as charged, as the admitted facts could not support the charges laid in the complaint. Sulan J dissented.

The appeal against conviction was allowed, and the convictions were set aside.