R v Stephens

[2021] ACTSC 308

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Stephens

Citation:

[2021] ACTSC 308

Hearing Date:

8 November 2021

DecisionDate:

9 November 2021

Before:

Mossop J

Decision:

See [42]

Catchwords:

CRIMINAL LAW – EVIDENCE – Admissibility – advance ruling application to adduce tendency evidence – charges of dishonesty offences – alleged tendency dishonestly to make false representations about accommodation arrangements to obtain financial benefits –– each charged act cross-admissible for tendency purposes – whether evidence about failure to declare rental arrangement admissible for tendency purposes – evidence with significant probative value – risk of prejudicial effect on accused low with appropriate jury directions – evidence admissible for tendency purposes

Legislation Cited:

Criminal Code 1995 (Cth), ss 11.2(1), 134.2(1), 135.1(3), 136.1(1)

Evidence Act 2011 (ACT), ss 97, 101(2), 192A

Cases Cited:

Hughes v The Queen [2017] HCA 20; 263 CLR 338

R v Bauer [2018] HCA 40; 266 CLR 56

R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228

Parties:

The Queen (Crown)

Travis Stephens (Accused)

Ilze Stephens (Accused)

Representation:

Counsel

M Hassall (Crown)

J Nottle (T Stephens)

K Archer (I Stephens)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Operational Legal Australia (T Stephens)

Kamy Saeedi Law (I Stephens)

File Numbers:

SCC 117 of 2021

SCC 118 of 2021

SCC 119 of 2021

MOSSOP J:

Introduction

1. The accused, Travis Stephens, faces the following charges:

(a)nine counts of contravention of s 134.2(1) of the Criminal Code 1995 (Cth) – obtaining a financial advantage by deception;

(b)one count of a contravention of s 135.1(3) of the Criminal Code – dishonestly causing loss to the Commonwealth; and

(c)a summary charge alleging a contravention of s 136.1(1) of the Criminal Code – making a false or misleading statement in an application.

1. The co-accused, Ilze Stephens, who is the mother of the accused, faces the following charges: eight counts of contravention of ss 11.2(1) and 134.2(1) of the Criminal Code. Section 11.2 of the Criminal Code relates to aiding and abetting the commission of an offence.

The charges

1. The central allegation against the accused is that between 6 October 2011 and 21 January 2019, he dishonestly obtained payments of rent allowance from the Commonwealth Department of Defence as a result of false representations that he made to Defence Housing Australia (DHA). Those representations were that he did not own or partly own the residence in Canberra for which rent allowance was paid (the Wentworth Avenue property) and that he was renting the property from the co-accused, his mother. The fact was that he was registered as the joint owner of the property with his mother. Eight of the 10 charges (counts 2, 4, 5, 6, 7, 8, 9, and 10) relate to representations which he made which permitted, over those years, rent allowance payments to be continued. These are alleged to be contraventions of s 134.2(1) of the Criminal Code, obtaining a financial advantage by deception.

1. There is a further allegation that the accused dishonestly claimed and obtained a relocation allowance by falsely representing to a business known as Toll Transitions that he had been evicted from his former rental property (count 1). This is a charge of dishonestly causing loss to the Commonwealth, contrary to s 135.1(3) of the Criminal Code.

1. There is also an allegation that he dishonestly claimed and obtained a rental bond advance which he was not entitled to (count 3). This is another count of obtaining a financial advantage by deception, contrary to s 134.2 (1) of the Criminal Code.

1. Finally, there is an allegation that he made false statements in an application for a “ceiling increase”, that is a higher than usual rate of rent allowance. This is the related summary charge alleging the making of a false or misleading statement in an application, contrary to s 136.1(1) of the Criminal Code.

1. The allegation against the co-accused is that she made false written declarations which aided and abetted the accused’s dishonest obtaining of rent assistance and the rental bond advance by purporting to confirm that the accused was renting the property from her and that he made a payment of bond to her with respect to that property. These are counts 11-18.

The applications for s 192A rulings

1. There were two issues before me yesterday. First, there was a tendency application by the Crown. Second, there were a variety of objections to aspects of the evidence made by the accused. Advance rulings under s 192A of the Evidence Act 2011 (ACT) were sought in relation to both issues.

1. The two issues are interrelated in that some of the objections are on the basis of relevance and the Crown relies upon the evidence as relevant for tendency purposes.

1. Although the proceedings involve the co-accused, who is accused of aiding and abetting, counsel for the co-accused was excused from the hearing because an agreement had been reached with the Crown about the use of evidence for tendency purposes. It is therefore not necessary to say anything more about the position of the co‑accused.

Tendency application

1. It is convenient to first deal with the tendency application.

1. The most relevant provisions are ss 97 and 101(2) of the Evidence Act. Section 97 requires that reasonable notice is given in writing and that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, has significant probative value. Section 101(2) also requires that the probative value substantially outweighs any prejudicial effect it may have on the defendant.

1. The Crown sought a ruling that four categories of evidence be admissible as tendency evidence:

(a)the evidence relating to each count on the indictment;

(b)the evidence relating to the related summary charge against the accused;

(c)the evidence relating to the accused’s renting out of the Wentworth Avenue property to Peter Frazer and his failure to declare the same to DHA; and

(d)the evidence relating to the accused sharing the Wentworth Avenue property with Danielle Bevins-Sundvall from at least 30 April 2017 and his failure to declare the same until 3 April 2018.

1. The tendency identified by the Crown is:

That the Accused had a tendency dishonestly to make false representations about his accommodation arrangements, by express representations and/or by omission, in order to obtain financial benefits from the Department of Defence.

1. After I had reserved my decision and shortly before it was to be delivered, counsel for the Crown indicated that the Crown no longer sought to rely on the fourth category identified above and that it would not rely upon that evidence as part of the Crown case. The Crown did so on the basis that if the accused was called to give evidence, he may be cross-examined in relation to that issue and that a ruling would then be sought as to the use of that evidence for tendency purposes. This change in the Crown’s position obviates the need for a ruling under s 192A of the Evidence Act in relation to this evidence.

1. The Crown submitted that each of the remaining categories of evidence is of significant probative value because a principal fact in issue in the proceedings is likely to be whether the accused made an innocent mistake as to his ownership of the property because he genuinely believed at all relevant times that his mother was the sole owner and he was a mere tenant.

1. In addition to each representation made in relation to obtaining rent assistance, the Crown points to the following additional evidence said to be significant to establish the tendency:

(a)the evidence in relation to count 1, which tends to prove that the accused falsely represented to Toll Transitions that he was being evicted from his former rental property;

(b)the evidence relating to the summary charge, which tends to prove that the accused made the same false representations in relation to a “ceiling increase”, that is, an increase in the amount of rent assistance that may be paid; and

(c)the evidence relating to Peter Frazer, which tends to prove that the accused rented out the property to Mr Frazer, gave Mr Frazer the impression that he was the sole owner of the property and failed to disclose the income so received to DHA or his commanding officer.

1. The Crown contended that all of these categories of evidence are closely related in both time and subject matter to the fraudulent obtaining of rent assistance by the accused. It submitted that the evidence establishes that he had a consistently dishonest state of mind in relation to multiple aspects of his receipt of benefits from the Commonwealth relating to his accommodation.

1. Although no admissions have been made in relation to other aspects of the case, counsel for the accused submitted that a principal issue at trial would be whether or not the accused knew that he was the owner of the premises and hence knew that to make representations to the contrary was dishonest. He identified that the circumstances were equally consistent with the accused believing that he was merely an agent of the owner, his mother. That submission is made in circumstances where the accused did not personally sign the transfer of the property into his joint name and in which he, for reasons which do not need to be gone into here, was not a party to the contract of sale by which the property was acquired.

Cross-admissibility

1. The Crown seeks to have the evidence on each of the charges able to be used in order to establish the asserted tendency. This would allow the jury to use any charge which was established beyond reasonable doubt in order to establish the tendency asserted by the Crown and then use that tendency in its consideration of the balance of the charges.

1. So far as each of the charges on the indictment are concerned, this would not alter the evidence that was to be put before the jury.

1. In relation to the series of rent assistance charges (counts 2, 4, 5, 6, 7, 8, 9, and 10), the accused submitted that tendency reasoning would add very little to the Crown case. That is because each one was made in relatively similar circumstances. As a consequence, it is unlikely that the establishment of a tendency by proof of one charge beyond reasonable doubt was likely to be significant for the determination of the other charges.

1. I accept that the likelihood is that each of these charges will be decided in the same way. However, that is not sufficient to provide a basis for avoiding the cross-admissibility for tendency purposes of the evidence in relation to each of the charges.

1. If the jury was satisfied beyond reasonable doubt that any one of the rental assistance charges was made out, then that would provide evidence that the accused had the asserted tendency. If, having regard to that evidence and other evidence in the case (such as the representation the subject of the Toll Transitions charge – count 1) the jury was satisfied that the accused did have such a tendency, the jury would then be entitled to take that tendency into account in assessing the evidence in relation to the other charges. This may be of significance in assessing whether or not the jury should accept as a reasonable possibility the hypothesis that the accused was not aware that he was an owner of the property. Put slightly differently, the existence of the asserted tendency may make it less likely that any false statements made to the Commonwealth involved honest errors rather than deliberate falsehoods. In the same way as in Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes), the tendency may have removed a doubt that the brazenness of the appellant’s conduct might otherwise have raised (see Hughes at [59]), the tendency here may remove a doubt that the jury has arising from the unlikelihood of someone engaging in what, on the Crown case, was brazen dishonesty relating to part ownership of the property.

1. Notwithstanding that the significance of tendency reasoning may vary as between counts, given the potential for evidence on each count either by itself or in combination with evidence on one or more of the other counts to establish a tendency, I am satisfied that the evidence would have significant probative value.

1. I do not consider that there will be any prejudicial effect on the accused. Plainly, the jury will need to be given directions about the use of tendency reasoning in relation to this evidence. Further, notwithstanding that, generally speaking, tendency evidence need not be proved beyond reasonable doubt: see R v Bauer [2018] HCA 40; 266 CLR 56 at [86], the jury will need to be instructed that they may only use the charged acts for tendency purposes if they are satisfied of them beyond reasonable doubt. That is because each of them are charged acts and it would be too confusing for a jury to be told that for tendency purposes they may accept proof of these charges to a standard less than beyond reasonable doubt but that the charges themselves can only be established beyond reasonable doubt.

1. If there is any other asserted risk of unfair prejudice that emerges at the trial, then I am satisfied that this may appropriately be dealt with by a specific direction in a way that maintains the position that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused.

1. I conclude that as between charged acts on the indictment, they should be cross‑admissible for tendency purposes.

1. The summary charge needs to be separately considered. That is a charge relating to an unsuccessful application for a “ceiling increase”. It included the following representations in relation to the reasons for his application:

Evicted at short notice from previous RA. Property due to owner reoccupying. Properties available in area were either poor quality/unsuitable or excessive for need/expensive. Market has increased beyond 10% p.a. Took first available (suitable) IOT prevent disruption at work. Vacancy rates at all time low.

1. The Crown case is that this includes (at the very least) the false statement that the accused was evicted due to the owner reoccupying the premises. The document was signed at the same time as the application for rent allowance was made and sent as part of a single application. It is therefore likely to be admitted as part of the context in which the application for rent allowance was made. However, even if it was not, in my view it would be admissible for tendency purposes and should be so admitted even if otherwise admissible. Upon the Crown case, it demonstrates a false statement made in a closely related context to the application for the rental bond advance which is the subject of count 3 and the claims about ownership of the property that give rise to count 2 relating to rent allowance from 25 August 2011 until 11 April 2012. It provides significant evidence to establish the asserted tendency and the asserted tendency would provide significant evidence to support the Crown case. It is of significant probative value. The risk of unfair prejudice is low. The jury would be given directions about the limited purpose for which it was relevant (context and tendency) and that it could not be used otherwise.

1. I therefore conclude that each of the charged acts should be cross-admissible for tendency purposes.

Evidence in relation to Mr Frazer

1. The evidence of Mr Frazer falls into a different category because it is not clearly otherwise admissible in the case. Mr Frazer is a person who occupied the premises while the accused was in Afghanistan and paid money to the accused for that entitlement.

1. The evidence in relation to Mr Frazer has two components to it. First, there was the evidence contained in the witness statement of Mr Frazer that he “understood” that the accused owned the property and that he believed that it was owned by him rather than rented. In the form in which it appears in the statement, it is difficult to see how this evidence could be admitted as it relates to Mr Frazer’s state of mind rather being evidence of admissions made to him by the accused. Second, is the inference sought to be drawn from the evidence that the accused knew that he was the owner of the property because of the absence of any necessity to consult with any other person about the rental arrangement with Mr Frazer. The difficulty with that contention is that the absence of a need to consult is also consistent with the accused subletting premises which he had rented from his mother (either with or without any consent required under his lease). It was also consistent with the possibility that he was authorised to act as agent for his mother in relation to rental of the property and was not required by the terms of the agency to consult with, or seek approval from, her.  As a consequence, insofar as the evidence is sought to be relied upon by the Crown in order to directly establish the accused’s knowledge of his ownership of the property, it is of limited probative value.

1. However, the evidence is also relied upon by the Crown for a tendency purpose. That is because the accused omitted to disclose to DHA or his commanding officer that any other person was in occupation of the premises or that he or the landlord was receiving rental income from another person in the period when he was not in occupation. The Crown says that this supports the existence of the asserted tendency. The obligation undertaken in the application for rent allowance was to “advise DHA and my Commanding Officer in writing of any changes to the details provided in this form within 10 days of the change”. In that form, the accused had identified that he was the sole occupant of the property. The form sought details of house sitters and the rent contribution that they had made. The manner in which the form was completed was, in this respect, accurate at the date that it was completed (26 August 2011) but made clear the obligation to identify changes of the type which previously occurred.

1. Counsel for the accused emphasised in relation to this evidence that there is a distinction between a positive representation and an omission. The failure to notify a change of circumstances is an omission. Omissions can have a different character to a positive representation. The value of an omission in establishing a tendency may be less because of the potential for an omission to be explained by circumstances other than dishonesty. These might include an oversight because someone had forgotten the obligation to give notice or had other things going on in their life at the time. That contrasts with a positive assertion, which may be more difficult to explain.

1. While I accept that omissions have the potential to be less significant in establishing a tendency of the type asserted here, the evidence of the failure to make any disclosure of rental income will be of significant probative value. The word “could” in the definition of probative value is significant and the focus on capability draws attention to what it is open for the tribunal of fact to conclude based on the evidence: see R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [61]. “Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent”: see Hughes at [16]. The assessment under s 97 of the Evidence Act must also consider other evidence to be presented by the Crown: s 97(1)(b).

1. In my view, when considered in this way and in the context of the other evidence in the case, the threshold of significant probative value is passed. The accused received a significant number of payments in relation to Mr Frazer’s occupation of the premises. Having regard to the other evidence about his involvement in the financial aspects of the ownership of this unit, a finder of fact may consider that the omission on the part of the accused to disclose this income in circumstances where he was continuing to receive rental assistance is significant in reaching a conclusion about the existence of the tendency asserted by the Crown. If that tendency is established, then that is a tendency that has the capacity to be significant for the jury in reaching a conclusion about the dishonesty involved in the charges.

1. Further, the risk of this evidence having a prejudicial effect on the accused is low. I do not consider that, with appropriate directions, it may distract the jury or provoke an irrational response from the jury. Rather, clear directions will make it apparent to the jury the purpose for which this evidence may be used and the factors that must be considered by the jury in relation to the tendency asserted by the Crown.

1. The evidence in relation to Mr Frazer is therefore admissible.

Objections on the grounds of relevance

1. Having regard to my conclusion that the evidence in relation to Mr Frazer is admissible for tendency purposes, that evidence is necessarily relevant. Therefore, the separate ground of objection to this evidence falls away.

Other documents

1. While there were some objections to other documents, these did not need to be resolved under s 192A of the Evidence Act because counsel for the Crown indicated that the documents would be dealt with in a way that counsel for the accused accepted avoided the necessity for a ruling.

Orders

1. The order that I will make is somewhat different to the order sought in the Crown’s application. It is designed to more accurately reflect the ruling that is being made and also to exclude the evidence relating to Ms Bevins-Sundvall, in relation to which an advance ruling was no longer sought. Pursuant to s 192A of the Evidence Act, the Court rules as follows:

1.The evidence in the Notice of Intention to Adduce Tendency Evidence dated 19 October 2021 (except the evidence identified in [2](l) of that notice) is admissible as tendency evidence in the trial of Travis David Morgan Stephens.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 21 December 2021