Rimmer v Nissen; ex parte Nissen
[1993] QCA 75
•17/03/1993
IN THE COURT OF APPEAL [1993] QCA 075
SUPREME COURT OF QUEENSLAND
C.A. No. 246 of 1992
Brisbane
[Rimmer v. Nissen; ex p. Nissen]
DAVID EDWARD RIMMER
Applicant
- v -
KENNETH HENRY NISSEN
Respondent
Ex parte: KENNETH HENRY NISSEN
THE CHIEF JUSTICE
DAVIES J.A.PINCUS J.A.
Judgment delivered 17/03/1993
| R | EASONS FOR JUDGMENT - THE COURT |
ORDER NISI MADE ABSOLUTE. THE MATTER IS REMITTED TO THE MAGISTRATES COURT TO PROCEED ACCORDING TO LAW. THE APPLICANT TO HAVE HIS COSTS HERE AND BELOW.
CATCHWORDS: CRIMINAL LAW - EVIDENCE - Admissibility of respondent's answers to questions in forms issued by Department of Society Security - forms not notices 'requiring' statements to be furnished merely because drew attention to fact benefits would cease if not completed - Social Security Act 1947 (Cth), ss. 163(2), 165
STATUTES - INTERPRETATION - s. 56 Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Cth) deemed documents to be notices given under s. 135TE(2) Social Security Act 1947 (Cth) - whether documents completed before enactment of s. 56 were notices given under s. 135TE(2) - prior legislative provisions generally should not be construed so as to make amendment unnecessary.
| Counsel: | J. Griffin Q.C. for the Applicant B. Farr for the Respondent | ||||
| Solicitors: |
| ||||
| Prosecutions for the Applicant Alroe Brown & Woodhall for the Respondent | |||||
| Hearing Date(s): | 12 February 1993 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 246 of 1992
Brisbane
Before The Chief Justice
Mr Justice Davies
Mr Justice Pincus
[Rimmer v. Nissen ex p. Nissen]
DAVID EDWARD RIMMER
Applicant
- v -
KENNETH HENRY NISSEN
Respondent
Ex parte: KENNETH HENRY NISSEN
REASONS FOR JUDGMENT - THE COURT
| J | udgment delivered 17/03/1993 |
The respondent, Kenneth Henry Nissen, was charged with 59 counts pursuant to s. 239(1)(b) of the Social Security Act 1947 (Cth) ("the Act") that he knowingly obtained payment of benefits under the Act which were not payable in whole or in part. Five of those charges were withdrawn. The remainder were dismissed by a stipendiary magistrate at Maroochydore on 9 October 1992. The applicant, David Edward Rimmer, calls on the respondent to show cause why the magistrate's dismissal of those charges should not be reviewed.
The substance of the case before the magistrate was that over a period of some four years the respondent had worked on a casual basis at a meatworks called Northwest Exports, during which time he had been paid unemployment benefits on the basis that he was unemployed, as a result of documents signed by him stating that he was unemployed. All of the charges which the magistrate dismissed related to fortnightly periods between the middle of 1985 and the end of 1989.
It was undisputed that the respondent worked at Northwest Exports during the whole of the relevant time. During the period from 1985 to 1988 he worked under the name Boss, a false name. In 1989 he worked under his own name. Payment records of Northwest Exports were in evidence which proved that he received income from his employment during each of the relevant fortnights over the whole of the relevant time.
Evidence of the benefits which the respondent received over this period was admitted in the form of statements tendered pursuant to s. 248(2) of the Act. That section provides:-
"(1) All courts shall take judicial notice of the signature of any person who holds or has held the office of Secretary, Director-General of Social Security or Director-General of Social Services or who is or was an officer, and of the fact that that person holds or has held that office or is or was an officer, as the case may be, if the signature purports to be attached or appended to any official document and any such document purporting to be so signed shall be received in all courts as prima facie evidence of the facts and statements contained therein.
(2) A statement in writing signed by a person referred to in sub-section (1) that a person is, or was on a certain date, in receipt of a pension, allowance or benefit under this Act at a certain rate shall be received in all courts as prima facie evidence that the last-mentioned person is, or was on that date, in receipt of such a pension, allowance or benefit and of the rate thereof."
The admission of those statements was challenged in this Court by the respondent but not on the basis that they failed to comply with the formal requirements of that section. The challenge was on the basis that their source was statements made by the respondent which were themselves inadmissible against him. The respondent's statements, said by the respondent to be the source of the benefits statements pursuant to s. 248(2), were contained in a document headed "APPLICATION FOR CONTINUATIONS OF EMPLOYMENT BENEFIT" dated 11 February 1986 and in one headed "FIRST INCOME STATEMENT" dated 4 April 1986. The argument that these were the source of the benefits statements, which necessarily implies that the Department of Social Security kept no records of benefits paid to the respondent, is fanciful and must be rejected. Accordingly, the benefits statements were plainly admissible. In any event, as appears from what we say below, we think that the documents dated 11 February 1986 and 4 April 1986 were both admissible against the respondent.
The respondent did not suggest that this was a case in which he could argue that some only of the charges had not been established; on the contrary, he accepted that the case was one in which the applicant had proved all or none of them. The employment records of Northwest Exports, the benefits statements tendered pursuant to s. 248(2) and the claim for unemployment benefits dated 24 March 1986, to which we refer below, were, we think, sufficient to establish the applicant's case on all charges. The employment records, it will be recalled, included evidence that for most of the relevant period the respondent worked under a false name.
Notwithstanding the conclusion which we have reached in the preceding paragraph, we propose to consider other evidence tendered by the applicant, some of which was excluded either in whole or in part by the stipendiary magistrate. We do this because it was, we think, plainly admissible and because evidence of this kind is likely to be tendered in other prosecutions of a similar kind.
A record was taken of an interview with the respondent by Peter Cummins, an officer of the Department of Social Security. It was read over to the respondent by Mr Cummins and signed by them both as a correct record. The truth of the answers given by the respondent in that record of interview was not challenged though the admissibility of part of it was. In that record of interview the respondent admitted that he worked at Northwest Exports under the name Boss, that he knew he should have declared to the Department of Social Security the income which he received from Northwest Exports and that he had no reason for not declaring that income. The stipendiary magistrate excluded parts of the record though what parts is not clear. The parts of it which he excluded were so excluded because, in one case, he thought that the source was the document dated 11 February 1986 referred to above which was itself inadmissible; and, in the other, because the respondent accepted the truth of the contents of a document put to him when he may not have had an independent recollection thereof. As to the first, if, as we think, that document was admissible then so also was the part of the record of interview which he excluded. It is unnecessary to deal with the second because the facts were otherwise proved. The ruling could not have affected the above admissions.
The respondent relevantly made two claims for unemployment benefit. The first was dated 26 April 1985 which was before he commenced working at Northwest Exports. He made a second application because, between the first and the second, he was on sickness benefits for a short time. The second application is dated 24 March 1986. In that document he stated that the date upon which he last worked was 19 April 1985. That was untrue and at the time he signed that application he was working at Northwest Exports and had been since June 1985. Indeed in the week in which he signed the form he received $340.52 wages and in the previous week he received $513.75. No challenge was made to the admissibility of this document, nor can we see how any could have been. We would infer that the statement in it to which we have referred was made knowing it was false.
The other documents of importance which were tendered were the two documents to which we have already referred; one headed "APPLICATION FOR CONTINUATION OF UNEMPLOYMENT BENEFIT" dated 11 February 1986; the other headed "FIRST INCOME STATEMENT" dated 4 April 1986. Neither had any specific statutory authority.
The application for continuation of unemployment benefit asked questions about each day of the period from 29 January 1986 to 11 February 1986. To the question "Did you or your spouse do any work for which you or your spouse have been or will be paid?" the respondent answered "No". The employment records of Northwest Exports show that the respondent was paid $197.25 for employment with that company during the week ending 5 February 1986 and $195.78 for his employment with that company during the week ended 12 February 1986.
The first income statement related to the period 22 March 1986 to 4 April 1986. Again, he answered "no" to the question "Did you or your spouse do any work for which you or your spouse have been or will be paid?", whereas his employment records show that for the week ended 26 March 1986 he was paid $340.52 and for the week ended 2 April 1986 he was paid $424.32.
The magistrate held both the application for continuation of unemployment and the first income statement to be inadmissible.
He held that each was a document produced for the furnishing of information pursuant to s. 163(2) of the Act and consequently was not admissible against the respondent in criminal proceedings by reason of s. 165. Section 163 relevantly provides:-
"(1) The Secretary may give, personally or by post, to any person to whom or on behalf of whom a pension, benefit or allowance is being paid under this Act a notice requiring that person, if an event or change of circumstances specified in the notice occurs or if that person is aware that an event or change of circumstances specified in the notice is likely to occur, to notify the Department or to notify the officer specified in the notice, within the period and in the manner specified in the notice, of the occurrence or likely occurrence of that event or that change of circumstances.
(2) The Secretary may give, personally or by post, to any person to whom or on behalf of whom a pension, benefit or allowance is being paid under this Act a notice requiring that person to furnish to the Department or to the officer specified in the notice, within the period and in the manner specified in the notice, a statement, in accordance with a form approved by the Secretary, relating to any matter that might affect the payment to that person of the pension, benefit or allowance.
...
(5) A person shall not -(a) refuse or fail to comply with a notice under sub-section (1) or (2) to the extent that the person is capable of complying with it; or
(b) in purported compliance with such a notice, knowingly or recklessly furnish information that is false or misleading in a material particular.
Penalty for any contravention of this sub-section:
(c) in the case of a natural person - $1,000 or imprisonment for 6 months, or both; or
(d) in the case of a body corporate - $5,000."
Section 165 provides:-
"A person is not excused from furnishing information, producing a document or giving evidence in pursuance of section 163 or 164 on the ground that the information or evidence, or the production of the document, may tend to incriminate him, but any information furnished, document produced or evidence given in pursuance of section 163 or 164 is not admissible in evidence against the person in any criminal proceedings, other than proceedings under, or arising out of, sub-section 163(5) or 164(3), as the case may be."
The first of the above documents states, immediately under the heading:-
"If you want unemployment benefit to continue:
... Please fill in this form, using the GUIDE to help
you.
. please answer ALL the questions. Use a PEN."
Clearly enough, if the respondent wanted unemployment benefit to continue he should have filled in the form; and if he did not, there was no doubt a serious risk that it would not continue. But the form does not suggest any compulsion or that any other consequence would flow from his failing to complete it.
No doubt an adverse consequence is likely to follow from a person's failure to fill in a form supplied for the purpose of applying for a grant or continuation of a benefit: the benefit will probably not be obtained or continued. We do not think that the form becomes one "requiring" a person to do any of the things mentioned in s. 163 merely because it draws attention to the possibility of these results ensuing if it is not filled in.
In reaching that conclusion, we have taken into account that penal consequences are prescribed by sub-s. (5) which we have quoted.
The second of those documents, the first income statement, states, immediately after the heading:-
"IMPORTANT
. To avoid possible loss of benefits you must returnthis form on: (and NOT BEFORE) ..."
and then a date is specified.
Again plainly the respondent risked loss of benefits if he did
not complete and return the form by the date specified. But no
other consequence was expressed or implied.
For these reasons we think it impossible to construe either of these forms as requiring the respondent to do anything. Consequently, we do not think that either required the furnishing of a statement within the meaning of s. 163(2). The magistrate was therefore wrong in ruling them to be inadmissible.
It is unnecessary to consider the correctness of the decision of the Full Court of South Australia in Bartlett v. The Queen (1990) 55 S.A.S.R. 292 which is distinguishable. The relevant form in that case provided:-
"THIS FORM MUST BE COMPLETED and returned even if your
circumstances have not changed."
The language of the form was therefore, unlike the statements referred to above, open to the construction that it required completion. Moreover, that case concerned supporting parent's benefits which were granted for a year but were subject to review as that year progressed, the relevant form being for the purpose of determining whether those benefits should be stopped; whereas the unemployment benefits here were granted and paid on a fortnightly basis, the relevant forms being, at least in part, for the purpose of determining whether those benefits should be continued.
The magistrate also relied for his conclusion that both of these documents were inadmissible upon s. 56 of the Social Security and Veterans' Affairs (Miscellaneous Amendments) Act 1986 (Cth).
That section provided:-
"Where, on or after 1 November 1986, the Secretary gives to a person a document headed 'First Income Statement Unemployment Benefit' or 'Application for Continuation of Unemployment Benefit', the document shall be deemed to be a notice given to the person under sub-section 135TE(2) of the Social Security Act 1947 requiring the person to lodge with the Department, on the day specified in the document and in person, a statement in the form required by the document setting out the information required by the document to be set out."
That section remained in force only until 16 December 1987. Sub-section 135TE(2) was, at that time, the predecessor of s. 163(2).
Neither of the documents which the magistrate held to be inadmissible came into existence during that period. However the provision was relied on both by the magistrate and by counsel for the respondent before us on the basis that it was inserted merely to clarify what otherwise might have been an ambiguity and that consequently even without that provision those documents were notices under s. 163(2). We do not think that that is a permissible view. Prima facie, a statutory amendment should be construed as altering the meaning of a provision. Generally, a prior legislative provision should not be construed in a way that would make the amendment unnecessary: Grain Elevators Board (Vic) v. Dunmunkle Corporation (1946) 73 C.L.R. 70.
The magistrate also appears to have relied upon this amendment in another way. Although neither of the documents to which we have referred came into existence during the period in which the amending provision was in force, the magistrate nevertheless thought that, because the respondent was in receipt of benefits during the whole of the period in which the amendment was in force there would probably have been other documents of a similar kind which came into existence during that period and that these, as well as the documents to which we have referred, would have formed the basis of questions asked in the record of interview. He apparently derived some support from this speculation for his decision to exclude parts of the record of interview. It follows from what we have said that any such documents would have been admissible. But in any event speculation cannot be substituted for evidence.
The record of interview and the documents dated 11 February 1986 and 4 April 1986 provide strong supporting evidence to prove the charges.
The order nisi should be made absolute and the matter should be remitted to the Magistrates Court to proceed according to law. The applicant should have his costs here and below.
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