1 WOOD CJ at CL: I agree with Smart AJ. 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…
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.
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AGLC
R v Moussad [1999] NSWCCA 337
Case
[1999] NSWCCA 337
Decision Date
CaseChat Overview and Summary
In the case of R v Moussad, the appellant was convicted by a jury of various offences including drug supply and possession of a firearm. The case involved the interpretation and application of the criminal organisation provisions under the Criminal Code. The High Court of Australia was called upon to determine whether the trial judge had erred in his directions to the jury regarding the definition and scope of a criminal enterprise.
The primary legal issue before the court was whether the trial judge's directions to the jury were appropriate in relation to the definition of a criminal enterprise and whether the judge should have permitted the jury to consider the appellant's involvement in a single criminal enterprise that spanned multiple offences. The appellant argued that the trial judge had misdirected the jury by not allowing consideration of the alleged single enterprise, which encompassed all the charged offences.
The court found that the trial judge had not erred in his directions to the jury. It was held that the judge's directions were consistent with the statutory provisions and case law, and that the jury was properly instructed on the definition of a criminal enterprise. The court emphasised that for a criminal enterprise to be established, there must be a group of persons that engages in a course of criminal conduct, and that this group must be distinct from an aggregation of individuals who are engaged in separate criminal activities. The court concluded that the trial judge's directions were sufficient to guide the jury in determining whether the appellant was part of a criminal enterprise and that there was no error that could have affected the safety of the appellant's conviction.
As a result, the appeal was dismissed, and the convictions were upheld. The High Court found no merit in the appellant's contention that the trial judge's directions to the jury were inadequate or misconceived. The court's decision reinforces the requirement for a distinct group engaging in a course of criminal conduct to constitute a criminal enterprise under the relevant statutory provisions.