Regina v Clogher

[1999] NSWCCA 397

CITATION:	REGINA v. CLOGHER [1999] NSWCCA 397
FILE NUMBER(S):	CCA 60415 of 1998
HEARING DATE(S):	Wednesday 8 December 1999
JUDGMENT DATE:	8 December 1999
PARTIES :	REGINA v. CLOGHER, Sandra
JUDGMENT OF:	Meagher JA at 25; Newman J at 26; Greg James J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0436
LOWER COURT JUDICIAL OFFICER:	Shillington, DCJ.

COUNSEL:	Crown: P.G. Berman App: A. Radojev
SOLICITORS:	Crown: S.E. O'Connor App: Jack Rigg
CATCHWORDS:	Criminal law - appeal - recklessly make statements false in material particular with intent to obtain monies for another - statements made to ensure compliance by another with contract - not necessary under the contract for payment of monies - nature of materiality - directions to jury.
ACTS CITED:	Crimes Act 1900
CASES CITED:	Regina v. Maslen & Shaw (1995) 79 A. Crim. R. 199 Minister for Immigration, Local Government and Ethnic Affairs v. Dela Cruz (1992) 34 FCR 348 at 352 Regina v. Gervaise & Preece (CCA, unreported 13 November 1997) Regina v. Traino (1987) 27 A. Crim. R. 271)
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

No. 60415 of 1998 CORAM: MEAGHER, JA.

NEWMAN, J.
GREG JAMES, J.

WEDNESDAY 8 DECEMBER 1999

REGINA v. SANDRA CLOGHER

JUDGMENT

1 GREG JAMES, J: An appeal is brought from convictions of the appellant on three counts of having by way of statutory declarations made statements, false or misleading in material particulars with intent to obtain for Esenmette Pty. Limited ("the company") certain monies with reckless disregard as to whether those material particulars were true, false or misleading. The offences charged are provided for by s.178BB of the Crimes Act 1900 for which a maximum penalty is provided of five years' imprisonment. 2 The appellant had been tried in the District Court at Newcastle on 3 June 1998 and had pleaded not guilty to the charges. 3 In summary, the Crown case was that the appellant was the secretary of the company, she and her husband both being directors of it. It had entered into two contracts with the Department of Public Works, one for the construction of the sewerage pumping station at Morisset and the other for pumping stations and sewerage reticulation at Fishing Point. Under those contracts the company was entitled to claim progress payments for work completed at the end of each month. Fourteen days after the claim, the Department would issue a progress payment certificate and 14 days thereafter the Department was required to pay the amount specified in the certificate. 4 Under clause 43 of the contracts the Department required, with progress claims, statutory declarations that all workers, sub-contractors and suppliers had been paid all monies in respect of work performed under the provision of the contract that were due and payable up until the time of the claim. There was evidence from the Department's civil engineer of the amendment of the standard form contract wording of clause 43 to provide a discretion in the Department to withhold monies until the receipt of the declaration and that if monies were shown as outstanding in the declaration the process and the contract involved obtaining the contractor's direction for payment of those monies. In that last circumstance, even if the contractor refused to allow payment of outstanding claims it could still claim from the Department the amount certified as due to it. 5 Three progress payment claims in relation to the contract with the Department with statutory declarations in support executed by the applicant were lodged. Those declarations were in common form. I set out the declaration in respect of one claim by way of example:-

"STATUTORY DECLARATION
OATHS ACT (NSW) NINTH SCHEDULE

I, Sandra Clogher of 59 the Promenade, Guildford in the State of New South Wales do solemnly and sincerely declare that:-
1. I am the representive (sic) of Contractor Esenmette Pty. Limited ACN 002 586 825 in the Officer Bearer capacity of Director the said Contractor having a contract for Hunter Sewerage Project Construction of Sewers, Rising Mains and P/S at Fishing Point C/N 9201324.
2. All workers who have at any time been engaged by Esenmette Pty. Limited or a sub-contractor, in respect of their employment under the Contract, have been paid all monies payable to them, with the exception of the workers and amounts listed below:-
NIL
3. All sub-contractors and suppliers have been paid all the monies payable to them in respect of materials supplied and work performed under the Contract, with the exception of the sub-contractors, suppliers and amounts listed below:-
NIL
4. From the monies due to the Contractor, the Contractor request the Principal to pay the following amounts to the following persons to whom they are owed:-
NIL."

6   The declaration appears executed. Following receipt of the claims and the supporting statutory declarations, large amounts of money were paid to the company. Complaints, however, were later received from sub-contractors and suppliers. Contact with the company produced a letter from the appellant in which she indicated the company had been experiencing cash flow problems. In due course the company was placed into provisional liquidation and then went into liquidation. Evidence was called from various witnesses that sub-contractors, suppliers and workmen were owed substantial monies at the time the appellant made each of the three statutory declarations. 7   The appellant, who gave evidence, admitted that she had operated as bookkeeper and accounts keeper for the company, maintaining the payroll and the registers of creditors and debtors, with the assistance of a financial adviser who came in once a week to oversee the accounts. She gave evidence that in 1995 the Department provided a new format of declaration which she referred to her husband, Tom, and he arranged for a meeting between himself, the main engineer and the financial adviser, following which she was told to type the declarations in the form provided and to insert the world "Nil" after each paragraph, keeping a copy. 8   She confirmed that she was in charge of the accounting paperwork, including the invoices that came in. She said that the procedure in relation to claims involved the engineer on each job preparing the claim for payment and requesting a statutory declaration. Sometimes these declarations were requested urgently and she would have to attend an all-night chemist to have them executed by a Justice. 9   She discussed the receipt of invoices with her husband, would prepare a spreadsheet of the invoices and ask her husband who was to be paid. Suppliers and such would ring about outstanding amounts and she would speak to her husband about complaints and her husband would tell her what monies were available to meet the claims. 10   She said she understood all the monies payable in respect of the matters referred to in the statutory declarations meant all the monies that the company had to pay as were due at the time in the view of the company. In the event that an extension of time or an accommodation were able to be negotiated, she did not understand that the monies were payable. Essentially it was her case that as far as she was aware, the declarations were not false nor reckless. She was cross-examined to suggest she either knew or was reckless as to the truth. 11   Her husband gave evidence of his understanding of what monies were due and payable as did the engineering manager. 12   The notice of appeal in its first three grounds asserts in respect of each count that the trial judged erred in failing to direct an acquittal. Ground 6 asserts that his Honour erred in directing the jury that the contents of the statutory declarations must have had the effect of misleading the Public Works Department. Ground 6 asserts that his Honour erred in failing to direct the jury that the Public Works Department had a discretion to pay monies without the need for the statutory declaration. 13   Grounds 4 and 7 are abandoned. 14   A common submission is made in support of the remaining grounds. It is asserted that since under the contract, so it is contended, the statutory declarations were not absolutely required to be supplied and that, so it is asserted, the contract allowed the Department in its discretion not to require a statutory declaration, neither the provision or otherwise of the statutory declaration, nor the truth or otherwise of its contents at least so far as it related to the naming of sub-contractors could ever amount to "a material particular". It was asserted that his Honour's directions amounted to withdrawal of the issue of fact as to whether the relevant particulars were material from the jury and that this asserted misdirection was compounded by his Honour's failure to direct the jury that within the context of the contract the principal had a wide discretion to make payments to the contractor. 15   His Honour directed the jury that the statutory declarations required a truthful statement of all sub-contractors and suppliers who were unpaid and whose debts were due. He directed the jury that what was meant by a material particular was to be looked at in that context:-

"If you are satisfied that such credit as existed when these particular declarations were made, you could regard the statement that no such creditors existed as a material particular.
Since a misstatement of that nature would of course mislead the Public Works Department, the principal, as to what the situation was between the contractor Esenmette, and the sub-contractors and suppliers. And that, of course, is information which the principal is entitled to have. It is entitled to know whether the contract as it is ongoing is one that is still viable. As one which the contractor can continue and carry on. And to mislead the principal, the Department, you could regard in those circumstances as being matters of a material particular. And of course if you simply look at the declaration itself, the fact, the very matter sought to be sworn to, if you are satisfied there are outstanding amounts due to sub-contractors and suppliers, that very statement itself is a material particular because that is the very matter which the information is sought and required in terms of the contract."

16 His Honour went on to refer to the particulars as being material in the context of the clause in the contract which enabled payment direct to sub-contractors who had obtained court orders and consequent deduction from payments to the company. He referred to the arguments put by the appellant's counsel which turned particularly upon what amounts were actually payable and whether payment would have been made to the company in the event that the statutory declarations had set out the truth. 17 On the face of the material it would appear that the statements in the statutory declarations were material in that plainly they were capable of influencing the Department's attitude to the progress claim. The Department had a contractual right to require them under an express term. The stipulation of a contractual entitlement to require them and the very requiring of them by the Department showed that they were regarded by the Department as being themselves or containing matter capable of being of moment or significance and hence they were themselves not merely trivial or inconsequential (Regina v. Maslen & Shaw (1995) 79 A Crim R 199; Minister for Immigration, Local Government and Ethnic Affairs v. Dela Cruz (1992) 34 FCR 348 at 352; Regina v. Gervaise & Preece (CCA, unreported 13 November 1997)). The evidence clearly shows that the supply of them and the contents were realised by the appellant and the other representatives of the company to be of considerable importance to the company's cash flow. At least the information required was such as to have had the capability to influence the decision to make prompt payment. It is not necessary that the statement be one which must or will be taken into account (see Maslen & Shaw (supra at 202-203)). A statement, the truth of which goes directly or indirectly to influence whether not an action is performed is a material statement (Regina v. Traino (1987) 27 A Crim R 271)). 18 The contest at trial was not over whether or not the statements were material. Necessarily, whether or not they had to be supplied under the contract was not the point. They provided significant relevant information which could influence the course the Department might take. The submission made here is that unless the statement directly affected whether payment was made or how much the company might receive in payment of its claim, the statement was inconsequential but materiality is not so narrow. 19 The clear evidence from Mr. Walker, the civil engineer with the Department of Public Works, showed that the information was important to the Department in considering claims. It is plain that the appellant, her husband and the company's engineer considered the information important in order to have the claim met. There was no real issue as to this. Nor was there any issue on the related matter that the declarations were made in the form they were and supplied with the intent that the company would obtain the monies in question. 20 His Honour, in his summing up, dealt with the matter to the necessary extent when he referred to the contractual provisions and to the evidence concerning the importance true statements in the statutory declarations would have to the Department. 21 In his directions, his Honour did not remove from the jury the issue of whether the statements in the statutory declarations were true, false or misleading. He did not direct the jury that it was necessary that the statements be untrue before they could influence the Department, or that it be necessary to deceive the Department before the statements could be material as the appellant's written submissions appear to contend. 22 I do not consider that his Honour incorrectly removed the relevant factual issues from the jury in the passage of the summing up I have set out. He did direct the jury as to how the statements could, in the factual context of this case, be material otherwise leaving the issue of materiality for them. 23 In the context of these issues as they were posed at the trial, I see no misdirection. Further, in my view, the evidence that the declarations and the statements in them were material was overwhelming. I consider that this appeal cannot succeed. 24 I would grant leave to appeal, but propose that the appeal should be dismissed. 25 MEAGHER, JA: I agree. 26 NEWMAN, J: I agree 27 MEAGHER, JA: The orders of the court therefore are the orders proposed by Greg James, J.