R v Moussad
[1999] NSWCCA 337
•27 October 1999
CITATION: Regina v Moussad [1999] NSWCCA 337 revised - 29/10/99 FILE NUMBER(S): CCA 060842/98 HEARING DATE(S): 14 May 1999 JUDGMENT DATE:
27 October 1999PARTIES :
Regina v Amani MoussadJUDGMENT OF: Wood CJ at CL at 1; Bell J at 2; Smart AJ at 3
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 95/21/0187 LOWER COURT JUDICIAL OFFICER: Coleman DCJ
COUNSEL: Appellant; P J O'Donnell
Respondent: C P O'DonnellSOLICITORS: Appellant: Matthews Dooley & Gibson
Respondent: Commonwealth Director of
Public ProsecutionsCATCHWORDS: Allegation of single criminal enterprise covering a number of offences permissible - Directions as to what constitutes an enterprise ACTS CITED: Crimes Act 1914 (Cth)
Drugs Misuse & Trafficking Act 1985CASES CITED: S v The Queen (1989) 168 CLR 266
Johnson v Miller (1937-38) 59 CLR at 489
Walsh v Tattersall (1996) 188 CLR 77
R v Hamzy (1994) 74 A Crim R 341
Merriman (1973) AC 584
Locchi (1991) 22 NSWLR 309
R v Velardi NSWCCA, unreported, 24 May 1996
R v Trad & Younan NSWCCA, unreported, 19 February 1996
United States v Awan 5 December 1989 MD Fla, unreported
F (1996) 90 A Crim R 356
R v Giam (1999) NSWCCA 53, unreported, 10 March 1999
Taylor v The Queen (1997) 93 A Crim R 1
Carcosa Pty Ltd v Czerwanin (1997) 93 A Crim R 287.DECISION: Appeal dismissed
IN THE COURT OF
CRIMINAL APPEAL60842/98
WOOD CJ at CL
BELL J
SMART AJ
Wednesday, 27 October 1999
1 WOOD CJ at CL: I agree with Smart AJ.REGINA v Amani MOUSSAD
JUDGMENT
2 BELL J: I agree with Smart AJ
3 SMART AJ: Amani Moussad appeals against her conviction of between about 7 January 1991 and 12 July 1993 at Blacktown defrauding the Commonwealth in obtaining money by way of Child Care Fee Relief from the Department now known as Health and Family Services to which she was not entitled. She received a sentence of 12 months periodic detention. The charge was laid under s29D of the Crimes Act 1914 (Cth) which provides:
"A person who defrauds the Commonwealth ... is guilty of an indictable offence"
4 The charge covered moneys received pursuant to claims she submitted to the Department for the nine quarters commencing in 1991 and ending with the first quarter of 1993. These claims overstated the amount to which she as the owner and operator of the Kiddyland Child Care Centre for pre-school children, Blacktown, was entitled.
5 The appellant contended that the trial judge erred in permitting the Crown to lead evidence of multiple acts of dishonesty having regard to the indictment. This follows upon the judge’s decision that the charge was not bad for latent duplicity and his refusal to put the Crown to its election to select one of the nine occasions of submission of a fee relief claim by the appellant or to expand the indictment to nine counts. The appellant contends that the charge was bad for duplicity. The Crown contended that the appellant was involved in a single criminal enterprise which occurred between the specified dates. Full and extensive particulars of the criminal enterprise were supplied including the acts relied upon in respect of each child and parent (or guardian) for each of the nine quarters.
6 The jury was given a 19 page document setting out the Crown’s allegations in relation to each alleged overclaim in respect of each child and the defence case.
7 The appellant also submitted that the judge erred in directing the jury that any one act of dishonesty was sufficient to justify a verdict of guilty. There is an issue whether the judge did so direct the jury.
8 In January 1991 the appellant entered into a written agreement with the Department to participate in the Child Care Fee Relief Scheme. This provides subsidies for low income families for the fees for children at eligible child care centres. It was an ongoing scheme expected to extend into the foreseeable future. The responsibility for making claims for fee relief rested on the operator of the centre and the fee relief was paid directly to the centre. Fee relief funds were provided to participating centres on a quarterly cash advance/acquittal. Cash advances were made. The operator was required to submit a quarterly claim setting out details of the amount of fee relief provided to parents during the immediate past quarter. Adjustments and advances were made based on the fee relief provided.
9 Each centre was required to enter onto an individual fee relief record for each child for each quarter details of the hours of each child’s attendance, the amount of fee relief entitlements and the total Departmental liability. The centre operator was required to obtain the signature of the child’s parent on the fee relief record weekly certifying that the details relating to the child were correct.
10 The quarterly claim form lodged by each claimant was prepared on the basis of the details in the individual fee relief records. In 1991 claimants were required to submit the individual fee relief records to the Department with the quarterly claim form, but in 1992 and 1993 they were required to keep the fee relief records and submit them on demand.
11 The number of hours which a centre was entitled to claim in fee relief for a child depended on the number of hours of attendance booked and paid for as to that child. The scheme did not allow claims to be made for days when a child was not booked into the centre or for weeks after a child’s booking at the centre was cancelled.
12 The Crown contended that as part of a continuing offence the appellant submitted nine false quarterly claim forms supported by thirty-two false fee relief records in respect of 18 children who attended Kiddyland and thereby obtained $12,182.78 in fee relief payments to which she was not entitled.
13 The appellant pointed out that the Crown document headed “Particulars of Criminal Enterprise” alleged forty-six separate dishonest acts on her part. However, they all fit within the framework just mentioned.
14 The appellant’s defence has been summarised by her counsel thus:
(i) some of the parents of enrolled children gave wrong evidence under estimating the number of days booked and paid for:
(ii) on some occasions, the appellant underclaimed her entitlement;
(iii) parents sometimes removed their children from the child care centre without notice. The appellant did not know whether the child was returning and kept the child’s place open;
(iv) parents were wrong on occasions as to the first date when their child attended the kindergarten. Similarly, they were wrong on occasions as to the last date attended.
(v) on some occasions, the appellant did overclaim fee relief, but did so without fraudulent intent. In this regard, she asserted that she left the day to day operation of the kindergarten to her employees.15 It was alleged that the appellant had procured parents to sign false fee relief records.
16 The Crown contended that despite the particularisation of the appellant’s defence it was essentially twofold, honest mistake in some instances and denial of any involvement in the preparation or obtaining of a false fee relief record from a parent. That is how the judge described it. She attributed some of the incorrect statements to her staff.17 The judge gave detailed reasons for concluding that the count was not duplicitous reviewing both the relevant case law and the facts. He said:
Appeal ground 1 - the duplicity point
"Where the various acts can be fairly and properly identified as part of the same criminal enterprise, the one activity, the indictment may charge a single offence notwithstanding that in proving it the Crown intends to rely upon individual acts. The single count is not duplicitous merely because it contains allegations that could be stated as separate offences."
In so holding, the judge applied R v Velardi (24 May 1996, NSW Court of Criminal Appeal, unreported) and R v Hamzy (1994) 74 A Crim R 341.
18 The judge noted that the appellant acknowledged that she knew what case she had to meet. However, she submitted to the judge that it was not a case where there was the same criminal enterprise or the same criminal activity. It was common ground that the submission of each of the nine quarterly returns and the combining of the supporting records could constitute an offence. The appellant contended before the judge and this Court that there were nine acts by her in different factual situations and that the defence in relation to each was different.
19 The judge said:20 I would add that each of the claims arose out of the conduct of Kiddyland Child Care Centre, the attendance (or non attendance) of children at that centre and records of attendance completed by parents.
"In this case the acts are not connected with one another by the time and place of their commission but they are in my view linked by a common purpose in such a way as they could be fairly regarded as forming part of the same transaction or criminal enterprise because:
(a) Each of the acts of overstatement was related to a Fee Relief Record which was used to support a quarterly fee relief claim.
(b) The fee relief claims were made at quarterly intervals and in sequence.
(c) There was a continuous activity in the nature of an enterprise.
(d) The numerous acts make it clear it is a criminal enterprise rather than unrelated acts.
(e) An unrealistic picture would be presented if nine distinct offences in separate counts were charged."
21 Having held that the Crown was entitled to adduce evidence of nine false quarterly fee relief claims under the single count of defrauding the Commonwealth because they formed part of the same criminal enterprise or the one criminal activity the judge next considered the issue of unfairness. The judge said:
The judge further held:
"... the accused could be in no doubt as to the case to be presented against her which was that she misrepresented the effect and content of Fee Relief Records submitted to support quarterly fee relief claims and maintained those misrepresentations during periods specified in the indictment and as a result obtained regular payments from the Department. This was one activity of a continuing kind and it is legitimate to bring a single charge. In the present case the compendious charge laid did not in all the circumstances produce duplicity and only one offence was alleged."
"The issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly [be identified as part of the same criminal enterprise]. The Crown case is that the accused was continuously involved in obtaining false fee relief claims from various parents to obtain the benefit which would be paid on the basis of the false quarterly fee relief claims and it would present an unreal picture of the activities of the accused if the acts were broken up into nine different counts. Although the defence varies in relation to various categories of documents it is either one of mistake or denial of any involvement in the preparation or obtaining of a false fee relief claim from a parent.
The Accused has certainly not been taken by surprise in relation to the Crown case and I am not satisfied there is any unfairness caused to the Accused by the inclusion of all these acts within the one count."
22 The judge's reasons hinge on his view that there was one criminal enterprise and that it was not unfair to allow evidence of the nine false quarterly fee relief claims and of the false fee records to be led as part of that enterprise.
23 The appellant attacked the view that there was one criminal enterprise and the judge's general approach. She submitted that there were just too many criminal acts relied upon to be dealt with fairly on one count.
24 The appellant contended that three consequences flowed from the judge's ruling that the count was not duplicitous. Firstly, the Crown was not required to elect on which act of dishonesty the Crown relied. Secondly, the jury had before them potentially prejudicial evidence of propensity and/or coincidence contrary to Part 3.6 of the Evidence Act 1995. Thirdly, it was impossible to deduce from the jury verdict whether they found dishonesty on the basis of one act, forty-six acts, or any number in between.
25 Section 29D of the Crimes Act 1914 (Cth) uses words of general import, namely, "Any person who defrauds the Commonwealth". That does not indicate that the section is dealing with a single act. In many cases of social security fraud, medical benefit fraud, nursing home fraud, family benefit fraud and child care fraud practised on the Commonwealth, all of which come before the courts with frequency, there is often an initial agreement or arrangement between the Commonwealth and the recipient governing an ongoing position under which the Commonwealth makes payments, often in advance and there is a periodical accounting and acquittal under which adjustments are made. What is telling in such circumstances is not the odd error which may be due to an honest mistake but the pattern which emerges and makes it plain that there is in existence a fraudulent enterprise. Sometimes the individual acts relied upon involve small sums of money. This is such a case. To take the individual acts one by one does not reveal the true overall situation.
26 The appellant placed much reliance on the decision of the High Court in S v The Queen [1989] 168 CLR 266. In that case the Crown declined despite requests by the accused to supply proper particulars of each of the three counts of carnal knowledge. An application to the trial judge by the accused that the prosecutor nominate or identify the acts the subject of the counts was refused. This caused much difficulty.
27 In their judgments the justices discussed the matter of duplicity. At 277, Dawson J referred to Johnson v Miller (1937-38) 59 CLR at 489 where it was held that a complaint was rightly dismissed because of the failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number on which it relied. At 282 of S, Toohey J said:
"... as soon as it appears that a count in the indictment is capable of referring to a number of occasions, each of which constitutes the offence, the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged."
28 At 287-8, Gaudron and McHugh JJ pointed out that in cases of evidence of multiples acts of carnal knowledge it was essential to identify the acts said to be the offences and what acts were said to be similar facts. There was the problem that different jurors may have fastened on different acts constituting the offence charged. At 284-5, these justices discussed the basis for the rule against duplicitous counts. One important factor was the orderly administration of criminal justice and that included knowing the offence for which the defendant was to be punished and knowing the offence or alleged offence to which the pleas of autrefois convict or autrefois acquit applied.
29 S was not an enterprise case nor one in which there had been an ongoing fraud as part of that enterprise. While S contains an important affirmation of principles, it is a different case from the present one.
30 In Walsh v Tattersall (1996) 188 CLR 77, Walsh was charged with between October 1992 and October 1993 obtaining by dishonest means from the Women's and Children's Hospital payments or benefits by dishonestly pretending that he was incapacitated for work. This count was based on a statutory provision which read:
"A person who:
(a) obtains by dishonest means any payment or other benefit under this Act
...
is guilty of an offence."
31 The Crown case was that in the period specified Walsh dishonestly put forward to his employer a case of incapacity for work and dishonestly maintained that case by presenting medical certificates and receiving payments under the statute. The Crown contended that Walsh had followed a course of conduct which amounted to one compendious false pretence of incapacity for work.
32 As a matter of statutory construction, Gaudron and Gummow JJ held that Walsh had not been charged with any offence created by the statute because the section created a discrete offence upon the receipt of any one payment or benefit. Those words did not embrace payments or benefits. They said "the giving to par (a) of the specificity which it bears on its face assists in the determination upon conviction of the sentence appropriate to the offence and in determining the availability, if it be relevant, of pleas of autrefois acquit and autrefois convict".
33 At 91, the justices observed that that case was to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs.
34 Kirby J, the other member of the majority, after a lengthy review of the authorities and principles, said at 112:35 At 109 Kirby J said:
"This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence."
36 That was the test propounded in R v Hamzy (1994) 74 A Crim R 341 at 348. Gaudron and Gummow JJ did not comment upon Hamzy or the test there suggested. Kirby J much preferred the strict rule that had been applied for many years and rejected any reduction in the strict approach to resolving questions of duplicity. He declined to adopt the approach taken in Merriman [1973] AC 584, and exemplified in Lord Diplock's speech at 607:
"Nor is much held afforded by saying that the test is whether multiple acts can 'fairly and properly' be identified as part of the same criminal enterprise or activity."
37 The minority of Dawson and Toohey JJ in their joint judgment held that the laying of a compendious charge did not produce duplicity. They applied the principles stated in Merriman. They saw the position thus, at 85:
"Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."
The practice of using a single count in the circumstances mentioned is of long standing and should not be regarded as a recent development. Hamzy followed Merriman .
"... it was not the case against the appellant that by dishonest means on various separate occasions he obtained payments and benefits under the Act. The dishonest means alleged against the appellant was a continuing false pretence between October 1992 and October 1993 by receiving payments on the basis that he was incapacitated for work."
38 In R v Hamzy (1994) 74 A Crim R 341, Hunt CJ at CL considered in some detail the use of a single count charging supply of a prohibited drug where it was intended to prove a number of individual acts of supply by the accused to different people at different times. It was held that this was permissible provided that these acts could fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. The evidence showed that Hamzy was constantly involved in dealing in heroin. It was also held that it was permissible for the Crown to accumulate the amounts individually supplied where each act of supply could fairly and properly be identified as part of the same criminal enterprise in order to establish that a commercial or large commercial quantity had been supplied.
39 Hunt CJ at CL undertook a review of the authorities and followed a number of earlier decisions to the same effect by this Court. That judge, with whom Abadee and Simpson JJ agreed, noted that in Locchi (1991) 22 NSWLR 309 at 312 importance was attached to the breadth of the definition of "supply" in s3 of the Drugs Misuse & Trafficking Act 1985. He also noted that this Court had followed Merriman. It was held that the trial court had power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Following Merriman, Hunt CJ at CL said that the trial judge should apply common sense and decide what is fair in the circumstances. Hunt CJ at CL said at 349:
"I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin. Even if the individual acts of supply had been divided up into different counts, each count relating to the acts of supply to a different Crown witness, there would have been no real justification for separate trials relating to each count. Again, a totally unreal picture would have been presented. And, as the defence was one of denial of any involvement in the supply of heroin, the evidence of similar facts may well have been admissible in any event to meet the attempted exculpatory explanations by the appellant for the presence of the different Crown witnesses at his home. "
40 The appellant stressed that the Chief Judge had recognised that the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely there would be unfairness. She also stressed that there was but one defence. However, Hamzy involved a twenty month period and a large number of witnesses and frequent dealing in heroin.
41 Hamzy was followed and applied in R v Velardi, where there was a single charge covering complicity in several acts of supply of cannabis leaf. Allen J, with whom Gleeson CJ and James J agreed, said:
"The law is settled that where the various acts of 'supply' can fairly and properly be identified as part of the same criminal enterprise of supply, the one activity, it is permissible for the indictment to charge the single offence of supply notwithstanding that, in proving it, the Crown intends to rely upon each such individual act of supply. A charge so preferred is not duplicitous, provided the case as put to the jury, is that the Crown does rely upon all the individual acts to establish the single enterprise of supply."
42 Obviously, as Hunt CJ at CL pointed out in Hamzy, the Crown does not have to establish every such act in order to succeed.
43 In R v Trad & Younan (19 February 1996, NSW Court of Criminal Appeal, unreported), this Court in the joint judgment of Gleeson CJ, Badgery-Parker and Abadee JJ applied Hamzy. The appellants were charged between 5 and 16 July 1992 of money laundering in that they did possess and dispose of money, knowing the same to be the proceeds of a serious offence, namely the theft of $340,000 on 5 July 1992 at Punchbowl. The Court stated that the issued involved was similar to one considered by the Court in the context of the definition of "supply". The Court stated that in the United States in relation to money laundering legislation, it has been held permissible to charge a single offence involving a series of deposits, wire transfers and credit transactions: United States v Awan (5 December 1989, MD Fla, unreported) referred to in The Money Trail, Fisse, Fraser & Coss, Law Book Co, 1992 at p385. In that case, the Court pointed out that a single count is not duplicitous merely because it contains allegations that could have been stated as separate offences. The joint judgment applied Merriman, noted that there was no unfairness, embarrassment or surprise and that the appellants had no difficulty in understanding the nature of the case they had to meet or in framing their defence.
44 In F (1996) 90 A Crim R 356, the offence was knowingly take part in the supply of prohibited drugs. Upon one interpretation of the Crown case, the Court referred to a number of acts of actual supply for which the premises were suffered or permitted to be used.
45 Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, was not persuaded that the High Court by its decision in Walsh v Tattersall overruled this Court's decision in Hamzy. The Chief Judge thought that Hamzy should continue to be followed by the courts in New South Wales until the High Court gave a decision accepting or rejecting the approach taken in Merriman.
46 In R v Giam [1999] NSWCCA 53, the appellant was convicted on six counts of offences against s178BB of the Crimes Act 1900 of making a false statement with intent to obtain a financial advantage. Nothing turned on any difference amongst the six charges. In each case, there was the same conduct and the same alleged legal defect of duplicity. The false statement was that the appellant "was secretary (of the identified companies”) and that he had been authorised to enter into such an arrangement". The case was left to the jury on the basis that there were two statements and that the jury could find the appellant guilty if he had made one or both of those statements, such statement or statements were false and made with the requisite intent. The two statements were, firstly, he was the secretary, and secondly that he was authorised to enter into the specified arrangements.
47 Spigelman CJ, with whom Abadee and Adams JJ agreed, attached great weight to Walsh v Tattersall. He held that in s178BB of the Crimes Act the words "any statement" referred to a single statement and that on the facts Giam was not a case where a single statement was constituted from more than one utterance or representation. Giam was in substance undistinguishable from Walsh v Tattersall. Spigelman CJ commented that the doctrine of duplicity plays a number of different roles and performs a number of different functions. One of these is ensuring that a sentencing judge has a clear indication as to the facts that have been found on the elements of the crime.
48 In Giam, it was not necessary to refer to Hamzy, Velardi and F because the case was covered by Walsh v Tattersall. Further, Giam was not an enterprise case.
49 In Taylor v The Queen (1997) 93 A Crim R 1 Taylor was charged pursuant to s29D of the Crimes Act with three counts of defrauding the Commonwealth. The counts covered the periods November 1984 to June 1986, June 1986 to December 1992 and January 1993 to 20 May 1993. In each it was alleged that she obtained payment of a sole parent pension to which she was not entitled. The Crown alleged that on thirty-one separate occasions Taylor dishonestly made false claims, stating, in effect, that she was living separately from her husband.
50 As has often been said, duplicity is a matter of form, not evidence. At 11-12, Underwood J observed that s29D does not create a separate offence for each payment but held that the indictment and particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs but focussed on precisely identified false representations, each made with the intention of obtaining a benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made.
51 Zeeman J pointed out that the charges relied on misrepresentations made by the appellant at various times and in various documents. The particulars furnished did not suggest that the Crown relied on any ongoing failure to advise but on specific statements made by her in various documents and those statements were misleading. He concluded that the Crown alleged thirty-one separate deceits by Taylor and thirty-one acts of defrauding. On this reasoning each should have been the subject of a separate count. Zeeman J thought that such a result followed whether the reasons of Kirby J in Walsh v Tattersall applied or those of Dawson and Toohey JJ. The latter said:
"But the case against the appellant was not that on each occasion he received a payment there was a separate dishonest pretence that he was incapacitated for work. That is a case that the prosecution might have sought to make out. If it had, the count would have alleged the commission of a number of offences ... . But it would have been a different case to the one which the appellant faced."
Wright J agreed with Zeeman J.
52 The observations of the Tasmanian judges emphasise the importance of the way in which the prosecution frames and conducts its case. That was also a very important consideration in the judgment of Dawson and Toohey JJ.
53 As I understand the judgment of Kirby J, he does not attach the same emphasis to the way in which the Crown frames and presents its case. He was very much against what he described as a "rolled up" count. In his view, separate offences should be the subject of separate counts subject to the exceptions which he mentioned. Kirby J at 109 accepted that a great deal depended on the nature of the offence.
54 The courts in this State have found that "enterprise" counts have their place in drug supply and fraud cases where it is important to stress the overall criminality. Some large scale heroin and cocaine operators supply relatively small amounts at a time so that if caught, they cannot be charged with supplying a commercial quantity or a large commercial quantity. In order to bring home the full extent of their criminality and ensure appropriate punishment, the quantities from a number of acts of supply have to be aggregated. The enterprise is to supply large commercial quantities of heroin, cocaine or other harmful drugs.
55 In some of the fraud cases, as part of a systematic and long term defrauding, small sums are taken by overclaims and other dishonest means. Each instance may well involve only a small sum which can be dealt with by a magistrate. Often the frauds continue for some years. The smaller the sum taken, the less likely it is to be investigated and discovered. Despite the arguments to the contrary, if there had been a series of separate counts, whether nine based on the false quarterly fee claims or forty-six based on the false statements. I would not have regarded separate counts as appropriate.
56 It is of importance to examine how the case was put by the Crown to the jury and by the judge. In opening the Crown case, the prosecutor reminded the jury that the charge was (T16):
"… that between about 7 January 1991 and about 12 July 1993 at Blacktown ... the accused did defraud the Commonwealth in that she did obtain money by way of child care fee relief from the Department ... to which she was not entitled. ... Simply it means that the accused between those two dates firstly defrauded the Commonwealth's Department ... . And secondly that she so defrauded that Department by dishonestly obtaining money in the form of child care fee relief ... to which she wasn't entitled."
57 He emphasised that the heart of the charge was defrauding with the appellant deceiving the Commonwealth Department intentionally and dishonestly.
58 The appellant was supplied with a document headed "Particulars of Criminal Enterprise" and subtitled "Acts forming part of the enterprise". It continued "The acts of the accused which formed part of the criminal enterprise were" and set out forty-seven separate acts on which reliance was placed. The acts were grouped under quarters, for example, "First Quarter", "Fifth Quarter", "Ninth Quarter". That document was supplied to the jury.
59 In his summing up (SU15) the judge reminded the jury that the Crown case was that "each of the actions of the accused in creating or dealing with each of the beyond [sic] [or, perhaps, false beyond reasonable doubt] fee relief records for each of the children during the period was performed with a common purpose and were part of the same criminal enterprise".
60 The case against the appellant was framed and particularised as a one count enterprise case. It could have been presented differently. The jury were told that the case was a circumstantial one and the judge gave them a direction as to circumstantial evidence.
61 Before leaving the cases, the decision of the Court of Appeal in Carcosa Pty Ltd v Czerwanin (1997) 93 A Crim R 287 should also be noted. It reviewed many of the cases including Merriman, Hamzy and Walsh v Tattersall. The Court did not hold that Merriman should no longer be considered or cast doubt upon Hamzy. It referred to Walsh v Tattersall in detail. Studdert AJA at 296-7 said:
"It is clear from the authorities that whether an information offends for duplicity depends upon the particular circumstances. As Kirby J observed in Walsh at 108:
'Ultimately what is presented is a question of fact and degree for decision in each case.'"
62 Section 29D of the Crimes Act uses words of general import and considerable breadth, namely "a person who defrauds the Commonwealth". The general terms of s29D should be contrasted with the specific nature of the other offences in Part II of the Crimes Act, that is s29A false pretences, s29B false representation and s29C untrue statements in applications for grant of money where words of singularity are employed. Defrauding in s29D carries a much higher penalty. It has a wider embrace. The terms of s29D also differ from the specific terms used in the legislation under consideration in Walsh v Tattersall and Giam where words of singularity were used.
63 The different approaches in Walsh v Tattersall have caused me anxious consideration. Not least have been the differing attitudes to Merriman and two of the justices not expressing a view. Merriman has frequently been applied in New South Wales, probably for a combination of reasons including the quality and practical nature of the reasons and the extensive trial and appellate experience of Lord Morris and Lord Diplock in the criminal field. A similar approach has been adopted in New Zealand and South Australia.
64 Having regard to the practice in New South Wales as reflected in Hamzy and the cases there cited and the subsequent cases including F and the absence of a clear ratio in Walsh v Tattersall which can be applied in this case, this Court should continue to follow Hamzy and F where the Crown has framed and relied upon a single count alleging a criminal enterprise.
65 It is legitimate to conclude that all the acts complained of and set out in the particulars of criminal enterprise (mfi24A) formed part of the same criminal enterprise and that they were linked by a common purpose. Her acts should be seen against this background. The appellant was the owner of Kiddyland, a child care centre. The centre needed children for whom to care to prosper. She entered into an agreement under which she joined in the Child Care Fee Relief Scheme. This helped or enabled lower income parents to send their children to the centre. Fee relief records had to be kept (and for a period submitted to the Department) to substantiate the claims for money (fee relief) and the signatures of parents procured. Each of the acts of overstatement was related to the fee relief records. Quarterly fee relief claims had to be submitted. Cash advances were made to enable the centre to carry on. There was an acquittal each quarter. The centre operated throughout the nine quarters and there was continuous activity at the centre in caring for the children and obtaining fee relief which was paid direct to the centre. The criminal enterprise of defrauding the Commonwealth included the preparation of false fee records, procuring the parents' signature, submitting false quarterly fee relief claims, accepting advances of money from the Commonwealth on the basis that correct records would be kept and correct claims would be made (and certainly not ones known to be false) and seeking and receiving money from the Commonwealth to which she was not entitled. The numerous acts make it clear that what was involved was the ongoing, sustained and systematic defrauding of the Commonwealth.
66 There was no unfairness in having just one count. The appellant knew in detail what case she had to meet and was able to frame and put her defence fully and in detail. The degree of particularisation present in mfi24A (particulars of criminal enterprise), mfi24B (list of overclaims alleged by the Crown), mfi25 (defence position) and mfi26 (summary of Crown allegations and defence position in relation to each child), both as to the Crown allegations and the appellant's defence meant that the jury could have been in no doubt as to either when it deliberated upon its verdict.
67 The duplicity point fails.68 The appellant developed this ground thus:
Appeal ground 2 - The trial judge erred in directing the jury that any one act of dishonesty was sufficient to justify a verdict of guilty
69 It is necessary to set out the directions given by the judge. At SU14-15, he said:
(i) the judge fell into the same error as the trial judge in S v The Queen ( supra ) in effectively leaving the case to the jury upon the basis that if they were satisfied that any one of the multiple acts occurred they could convict;(ii) the judge's directions operated as an invitation to the jury to consider whether the appellant could exculpate herself in relation to each of the forty-seven alleged dishonest acts relied upon the Crown;
(iii) these directions permitted to be placed before the jury evidence of tendency and coincidence contrary to Part 3.6 of the Evidence Act ; and
(iv) provide no basis for fact finding as to the quantum of fraud (either as to duration or amount) in the event of a verdict of guilty.
"The charge is that she defrauded the Commonwealth Department of Health. Now to defraud is to deliberately use dishonest means to deprive another person of his or her property or to imperil his or her rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property or imperil the other person's rights or interests knowing that he or she has no right to deprive that other person or imperil that other persons rights or interests. The dishonest means which the Crown says the Accused used was the preparation of false fee relief records to support false quarterly fee relief claims involving one of several methods - obtaining parent's signatures to fee relief records which were false; obtaining parent's fee relief - I withdraw that - parent's signatures to fee relief records which were blank; completing and signing false quarterly fee relief claims supported by those documents and submitting them to the Department of Health; retaining false beyond reasonable doubt records for non-targeted quarters and falsifying the hours of claim in one copy of a fee relief application.
The Crown case is that each of the actions of the Accused in creating or dealing with each of the beyond fee relief records for each of the children during the period was performed with a common purpose and were part of the same criminal enterprise. In order to establish the particular activity or enterprise the Crown relies upon every act it intends to prove but it does not have to establish every such act in order to succeed. It is relevant for you to take into account a persistent pattern of dishonesty because although one act or a number of separate and isolated instances may not constitute such an activity or enterprise a persistent pattern or constant repetition may establish such a criminal enterprise. The Crown must prove that the individual acts of the Accused dealing with the fee relief records can fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. "
70 No complaint was made as to the direction about the meaning of defraud or the judge's summary of the dishonest means. Counsel told us that this was an agreed direction. The latter part of the direction was based upon Hamzy.
71 At SU38, the judge, referring to the particulars of criminal enterprise (mfi24A), said:72 At SU40 the judge referred the jury to mfi23 (fee relief claims for Kiddyland Child Care Centre) which contained a summary of each fee relief claim for nine quarters and the supporting fee relief records relied on by the Crown and those tendered by the defence, saying:
"Each of the acts which are particularised by the Crown in that list ... is an essential circumstance in the Crown's case and should be proved to your satisfaction beyond reasonable doubt."
"I take you back to mfi23. You can see how the circumstantial nature of the case put by the Crown is established and how the Crown relies upon each of the matters referred to in mfi24A as part of the criminal enterprise as an essential circumstance in the Crown case."
73 The judge was here explaining to the jury what the Crown case relied upon by way of circumstantial evidence to establish the alleged criminal enterprise.
74 At SU41 the judge continued:
"It will be a matter for you to consider the material and then bearing in mind that that which is listed in mfi24A is an essential circumstance in the Crown case to be satisfied beyond reasonable doubt that the act of the Accused done at that particular time was done with the intention of defrauding the Commonwealth. You must be satisfied of that beyond reasonable doubt. The Crown must prove each of the circumstances beyond reasonable doubt before any finding of guilt could be made on the basis of the circumstantial evidence."
75 At SU42 the judge reminded the jury of the appellant's submission that the overall percentage of claims submitted which were inaccurate or mistaken was very low. This submission was designed to refute that there was an enterprise.
76 The Crown prosecutor asked the judge to modify his later directions and explain to the jury that they did not have to be satisfied beyond reasonable doubt of every one of the acts on which the Crown relied but that they had to be satisfied beyond reasonable doubt of sufficient acts to amount to or constitute the criminal enterprise alleged. After discussion with counsel the judge read out the further direction which he proposed to give. There was no objection taken. The judge then told the jury (SU46-7):
"I just redirect your attention to mfi24A. And I will just clarify something that I said earlier. Each of the matters specified in mfi24A is an essential circumstance in the Crown case that the Crown relies on to establish the criminal enterprise or activity but it does not have to establish every such act to your satisfaction beyond reasonable doubt in order to succeed. In relation to nine quarterly fee relief claims it does not have to prove each of the particularised acts in relation to that particular claim and can rely on any lesser number in relation to that claim but if that lesser number or the whole are established to that standard you must still then be satisfied beyond reasonable doubt that the Accused submitted the quarterly fee relief claim with knowledge of the falsity of those fee, supporting fee relief claims.
Similarly the Crown does not have to prove that the Accused acted to defraud the Department in relation to each and every one of the nine quarterly fee relief claims submitted to the Department. "
77 This direction was intended to correct the judge's earlier statement that the Crown had to prove every act upon which it relied beyond reasonable doubt. The jury were instructed on more than one occasion that the Crown was alleging and had to prove beyond reasonable doubt that there was a criminal enterprise on the part of the appellant and that the individual acts of the appellant dealing with the fee relief records could fairly and properly be identified as part of the same criminal enterprise. The judge had explained that although one act or a number of separate and isolated acts may not constitute a criminal enterprise, a persistent pattern or constant repetition may do so. The judge's correction did not bear upon his earlier explanation at SU14-15 quoted earlier but on his overstatement of what the Crown had to prove. Taking the summing up as a whole, the jury would have understood that before they could convict, they had to be satisfied beyond reasonable doubt that the appellant was guilty of the criminal enterprise and that while the Crown did not have to prove every act upon which it relied, it had to prove sufficient acts to constitute the criminal enterprise alleged, that is, of defrauding the Commonwealth.
78 I would reject the first basis of attack under the second ground of appeal.
79 As to the second basis of attack, namely that the judge's directions operated as an invitation to the jury to consider whether the appellant could exculpate herself in relation to each of the forty-seven alleged acts of dishonesty, the judge stated that the Crown bore the onus of proof and had to prove the enterprise beyond reasonable doubt. The judge explained that the Crown relied on all the particulars it supplied but that it may not prove them all. It had to prove sufficient to constitute an enterprise. As earlier recorded, the judge directed the jury that if they relied on a lesser number of acts than alleged in relation to a claim they "must still then be satisfied beyond reasonable doubt that the [appellant] submitted the quarterly fee relief claim with knowledge of the falsity of those ... supporting fee relief claims". When the summing up is read as a whole, this basis of complaint is not established.
80 The appellant complained that the judge's directions permitted evidence of tendency and coincidence. This was not a case where the Crown was permitted to call what was in effect propensity or similar fact evidence without the protection of adequate directions as to the use which may legitimately be made of such evidence. The acts of the appellant were admissible as directly relevant to proving that she was engaged in the criminal enterprise alleged rather than to prove she had a propensity to commit a particular crime. Her acts also went to proving the extent of her involvement in the enterprise. See Hamzy (supra at 347). This basis of complaint is rejected.
81 The appellant further contended that the course taken did not permit findings to be available from the jury as to the duration or extent of the fraud in the event of a conviction and the judge imposing a sentence. The appellant submitted that this was one of the reasons why the law was against a single rolled up account. It is true that there are no specific findings from the jury as to each of the nine quarterly claims. The law regards the process of a judge making findings, even though beyond reasonable doubt and, for sentencing purposes, as less satisfactory than a jury making findings. However, there is an appreciable number of cases in which a judge has to make important findings. Manslaughter is an example. In murder cases the judge often has to decide whether the act causing death was premeditated.
82 In Velardi (at 11) Allen J said:
"Where a single count is preferred, the Crown case being that the commission of the crime was the one activity, and the Crown relies to prove that crime upon the commission of many acts some or all of which are themselves criminal, the sentencing judge, where the accused is convicted, has the task of determining what the proven facts are consonant with the jury's verdict of guilty. He is not bound, for sentencing purposes, to find all the individual criminal acts proven nor can he avoid his responsibility by taking the approach that whatever his own findings of fact would be he must sentence on the basis that only the minimum criminality has been established (R v Martin (1981) 2 NSWLR 640). These are settled principles of the law relating to sentencing. They are of general application."
83 The judge correctly applied these principles when sentencing. In his remarks upon sentence, the judge said that he was satisfied beyond reasonable doubt that the appellant submitted nine false quarterly fee relief claims and of the forty-seven acts relied upon as forming part of the criminal enterprise. They are set out in mfi24A. Having regard to the evidence, the judge's findings were those to be expected. The judge did not experience difficulty in identifying the acts the subject of the enterprise. The sentence imposed was very lenient and the appellant has suffered no prejudice from the judge having to make the findings.
84 While I appreciate the point being made, it is not in the circumstances one which would lead to disturbing the conviction.
85 I propose that the appeal be dismissed.
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