R v Mackrae-Bathory - [2006] VSCA 179

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 66 of 2006

THE QUEEN
	v.
ZACHARY AARON MACKRAE-BATHORY

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JUDGES:	CHERNOV, NETTLE and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2006
DATE OF JUDGMENT:	6 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 179

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CRIMINAL LAW – Conviction – Social security fraud – Dishonestly causing loss to the Commonwealth contrary to s.131.1(5) of the Criminal Code (Cth) – Centrelink employee procuring the payment of social security benefits to fictitious persons for his own benefit – Meaning of “dishonestly” in s.130.3 of the Criminal Code (Cth) – Expert evidence – Whether so-called expert evidence admissible to establish the meaning of the Social Security Act 1991 (Cth) and thus that the accused had acted dishonestly – Character evidence – Judge did not err in failing to direct that evidence of good character may be used in the assessment of credit – Charge to the jury – Judge did not fail to relate the law to the facts – Jury deliberations – Judge did not err in failing to issue a Black direction after 10 hours of jury deliberations –– Criminal Code Act 1995 (Cth), s.131.1(5), s.130.3; Social Security Act 1991 (Cth).

CRIMINAL LAW – Sentencing – Dishonestly causing a loss to the Commonwealth in the sum of $10,574.91 – Sentence of nine months’ imprisonment with a minimum custodial period of three months’ imprisonment confirmed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.F. Pirrie	Director of Public Prosecutions (Cth)
For the Applicant	Mr M.W.S. Duckett	Goldsmiths

CHERNOV, J.A.,
NETTLE, J.A.,
NEAVE, J.A.:

The applicant, Zachary Aaron Mackrae-Bathory, was arraigned before the County Court of Victoria at Melbourne on an indictment preferring four counts that contrary to s.135.1(5) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”) he did between February 2002 and March 2003 dishonestly cause a loss to a Commonwealth entity, namely, the Department of Family and Community Services, totalling $27,319.78.[1] His wife and co-accused, Doan Phuong Trang Nguyen (“Nguyen”), was arraigned with him on two counts of aiding and abetting. Following a trial that occupied 35 sitting days, on 22 January 2006 the jury convicted the applicant of Count 1: causing a loss of $10,574.91, and Count 2: causing a loss of $16,744.87, but found him not guilty of Counts 3 and 4. The applicant had no prior convictions and, after hearing a plea in mitigation of sentence on 3 March 2006, on 10 March 2006 the judge sentenced the applicant on each of Counts 1 and 2 to a term of imprisonment of nine months,[2] thus producing a total effective sentence of nine months, and ordered, pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released after serving a period of three months of the sentence. His Honour also made reparation orders in favour of the Commonwealth. By notice dated 14 March 2006 the applicant seeks leave to appeal against his conviction on both counts.
[1]Count 1 alleged a loss…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Mackrae-Bathory

Details

AGLC: R v Mackrae-Bathory [2006] VSCA 179
Case: [2006] VSCA 179
Decision Date: 6 September 2006

CaseChat Overview and Summary

The respondent, Mackrae-Bathory, was convicted by a jury in the County Court of Victoria for the offence of causing a loss to the Commonwealth by dishonest means. The respondent, while employed by Centrelink, had orchestrated the payment of social security benefits to fictitious persons for his personal gain. This appeal, which reached the High Court, questioned the conviction's validity and the sentence imposed. The legal issues that the court was required to decide included whether the respondent's actions were dishonest under s.130.3 of the Criminal Code, the admissibility of expert evidence to interpret the Social Security Act 1991, and whether the judge erred in certain instructions to the jury and in not directing the jury to consider a Black direction after prolonged deliberations.

The High Court considered whether the trial judge had correctly interpreted and applied the definition of "dishonestly" under the Criminal Code. The court found that the trial judge's directions to the jury were adequate, as they allowed the jury to assess the respondent's actions based on the legal definition of dishonesty, which encompasses actions that the respondent knew were dishonest by ordinary standards. The court rejected the notion that expert evidence was necessary to interpret the Social Security Act, as the act's language was accessible and did not require expert interpretation. The court also held that the trial judge did not err in failing to direct the jury to consider a Black direction, nor in not allowing character evidence to be used in the assessment of credit. The court confirmed that the sentence of nine months' imprisonment with a minimum custodial period of three months was appropriate given the nature and circumstances of the offence.

The High Court upheld the conviction, finding no error in the trial judge's handling of the case, and confirmed the sentence imposed on the respondent. This decision reinforces the principle that the interpretation of statutory language in criminal offences does not necessarily require expert evidence and that the assessment of dishonesty is a question for the trier of fact. The court's affirmation of the conviction and sentence highlights the importance of ensuring that public officials uphold their duties without personal gain.

Orders