Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, KIEFEL AND BELL JJ

COMMONWEALTH DIRECTOR OF PUBLIC

PROSECUTIONS APPLICANT

AND

MALGORZATA BARBARA PONIATOWSKA RESPONDENT

Commonwealth Director of Public Prosecutions v Poniatowska

[2011] HCA 43

26 October 2011

A20/2010

ORDER

1. Special leave to appeal granted.

2. Appeal dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

W J Abraham QC with L J Chapman SC for the applicant (instructed by Commonwealth Director of Public Prosecutions)

M L Abbott QC with M E Shaw QC for the respondent (instructed by Town & Country Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Commonwealth Director of Public Prosecutions v Poniatowska

Criminal law – Physical element of offence – Omission – Respondent convicted of multiple charges of obtaining financial advantage from Commonwealth entity contrary to s 135.2(1) of Criminal Code (Cth) ("Code") – Respondent failed to advise Centrelink of receipt of payments of commission from employer – Whether omission to perform act that person not under legal obligation to perform can be physical element of offence created by s 135.2(1) of Code – Whether s 4.3 of Code gave expression to common law principle that criminal liability does not attach to omission unless it is omission to perform act that person is under legal obligation to perform.

Words and phrases – "engages in conduct", "makes it so", "obtains a financial advantage", "omission".

Criminal Code (Cth), ss 4.1(2), 4.3, 135.2(1).

Social Security Act 1991 (Cth), Pt 2.10, s 1068A.

Social Security (Administration) Act 1999 (Cth), s 74.

FRENCH CJ, GUMMOW, KIEFEL AND BELL JJ.

Introduction

1. This appeal concerns the elements of the offence of "obtaining financial advantage" that is created by s 135.2(1) of the Criminal Code (Cth) ("the Code"). It is an offence under that provision for a person to engage in conduct and, as a result of that conduct, to obtain a financial advantage from another person (being a Commonwealth entity) knowing or believing that he or she is not eligible to receive that financial advantage. The expression "engage in conduct" is defined as doing an act or omitting to perform an act[1]. At issue is whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1).