District Court New South Wales Medium Neutral Citation: NSW Land and Housing Corporation v LC [2023] NSWDC 241 Hearing dates: 09, 12 & 13 December 2022 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: In respect of each of the Sequences, One through to and including Seven, I dismiss the appeals from conviction Catchwords: LEASES AND TENANCIES — Agreement for lease LEASES AND TENANCIES — False statement and Representations Legislation Cited: Children (Criminal Proceedings) Act 1987 Children (Protection and Parental Responsibility) Act 1997 Community Welfare Act 1987 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Evidence Act 1995 Housing Act 2001 Public Sector Employment and Management Act 2002 Public Sector Employment and Management (Housing) Order 2013 (NSW) Residential Tenancies Act 2010 Residential Tenancies and Housing Legislation Amendment (Public Housing-Antisocial Behaviour) Act 2015 Supreme Court Act 1970 Boarding Houses Act 2012 Cases Cited: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Blackpool Corporation v Locker [1948] 1 KB 349 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Charara v The Queen (2006) 164 A Crim R 39 Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 DPP v Lazzam [2016] NSWSC 145 DPP v West (2000) 48 NSWLR 647 Dyason v Butterworth [2015] NSWCA 52 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Frangieh v Commissioner of Taxation [2018] NSWCA 337 Garrett v Freeman [2006] NSWCCA 278 Justices Act 1902 (NSW) LC v R [2022] NSWDC 19 Lunney v DPP [2021] NSWCA 186 McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Moore v R [2016] NSWCCA 185 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 NSW Land and Housing Corporation v Navazi [2013] NSWCA 431 NSW Land and Housing Corporation v Quinn (No. 2) [2018] NSWDC 161 O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 Parker v Comptroller-General of Customs (2009) 252 ALR 619 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 R v Doyle [2018] QCA 303 R v Keenan (2009) 236 CLR 397 Re Reference Under Section 11 of Ombudsman Act 1976 (1979) 2 ALD 86 Rebecca Khodragha v R, unreported 22 February 2017, District Court of NSW, Sides DCJ Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Sasterawan v Morris [2007] NSWCCA 185 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 Shepherd v The Queen (1990) 170 CLR 573 Stucky v Iliff [1960] HCA 57 Taciak v Commissioner of Australian Federal Police [1995] FCA 650; 59 FCR 285 The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 Twaddell v New South Wales Land and Housing Corporation [2014] NSWSC 7 Texts Cited: Criminal Practice & Procedure NSW Category: Principal judgment Parties: LC (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Counsel: Greg Johnson (Counsel for the Appellant) Tony Di Francesco (Counsel for the Respondent) Solicitors: Fourtree Lawyers (Appellant) NSW Department of Communities and Justice (Respondent) File Number(s): 2015/00259893 Publication restriction: Order the continuation of the orders made in the Local Court, namely: (1) The name of the appellant is suppressed and the pseudonym LC be used (2) The address of the property to which proceedings relate is suppressed and not to be published (3) The residential address of LC is suppressed and not to be published Decision under appeal Court or tribunal: Hornsby Local Court Jurisdiction: Criminal Date of Decision: 05 March 2021 Before: B Williams LCM File Number(s): 2015/00259893 JUDGEMENT Introduction 1. LC appeals from proceedings in the Local Court at Hornsby on 4 December 2020 in which after a defended hearing she was found guilty of seven charges contrary to the Housing Act 2001 (the Act). The New South Wales Land and Housing Corporation (the Corporation) brought the prosecution. 2. Before consideration of the issues raised in these appeals, I wish to address the terms "the Corporation" and "Housing NSW", used interchangeably throughout in the conduct of the appeals when referring to the New South Wales Land and Housing Corporation. 3. My references to the Housing Act 2001 unless otherwise stated are to the Act as it stood from 1 January 2014 until subsequent amendments, the first of which was on 5 November 2015. 4. It is uncontroversial that the New South Wales Land and Housing Corporation was established under the Housing Act 2001, wherein s 6 provides, (1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation. (2) The affairs of the Corporation are to be managed by the Secretary of the Department of Planning, Industry and Environment. (3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Secretary of the Department of Planning, Industry and Environment, or with the authority of the Secretary of the Department of Planning, Industry and Environment, is taken to have been done by the Corporation. (4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown. (5) The Corporation is subject to the direction and control of the Minister. (6) (Repealed) (7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department. (8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act. 1. Paragraphs 5(1)(a) to (r) specify the objects of the Act including that it is to ensure that the available supply of public housing is shared equitably among people who are most in need 2. "Corporation" is defined in s 3 to mean the New South Wales Land and Housing Corporation. The Act does not define the phrase "Housing NSW". 3. The Residential Tenancy Agreement between the Appellant and "the NSW Land and Housing Corporation" as landlord, signed by the Appellant on 30 January 2013 at the commencement of her occupation of premises at Lake Haven (the Property) leading to this prosecution, is headed "NSW GOVERNMENT" beside the words "Family & Community Services" immediately below which are the words "Housing NSW". 4. Other legislation relevant to public housing and administration of the arrangements for it are the Community Welfare Act 1987 for the administration of the Department of Family and Community Services, and the Residential Tenancies Act 2010. 5. The inter-departmental arrangements for the management of the scheme for public housing are not without complexity, but it may be taken as known that currently the New South Wales Department of Community and Justice extends over portfolios for which ministerial responsibility falls upon seven ministers, including the Minister for Family and Community Services. The "Housing Hub" as it is described is within the responsibility of that minister and includes in its products and services housing for people on low or moderate incomes by way of tenancies in accordance with the Residential Tenancies Act 2010; the Corporation is included in the definition of social housing provider in s 36. 6. The arrangements of the scheme for public housing under these provisions explains the interchangeable use of the terms "the Corporation"' and "'Housing NSW". Both terms used in the documents and representations before the court refer to the New South Wales Department of Land and Housing. The Offences 1. The appellant was presented upon a Court Attendance Notice with seven offences in respect of her occupation of the Property. Subsequently the Court Attendance Notice was amended with refined particulars of the alleged misconduct. Sequence One 1. The appellant made false statements and representations on 5 March 2015, contrary to s 69(1) Housing Act 2001 [1] , the particulars of which are: 1. She wilfully provided a letter representing that her son, daughter in law and granddaughter referred to in an undated Rent Subsidy Application filed on 24 February 2015 had moved into the property on 20 February 2015, which she knew to be false, for they had been occupants of the property since at least 10 December 2013. 2. She made the false representations with intention to obtain or claim a rental rebate or rent subsidy. Sequence Two 1. The appellant by means of a fraudulent device obtained or claimed from the New South Wales Land and Housing Corporation a rental rebate or a reassessment of a rental rebate in respect of the property and hid from the New South Wales Land and Housing Corporation information that would have allowed retrospective reduction of entitlements to rental rebates and reduce or terminate accommodation benefits, contrary to s 69(2) Housing Act 2001. [2] 2. Particulars of this offence are, 1. The fraudulent device was lodging of the letter of 5 March 2015. 2. The letter or the lodging of the letter was a fraudulent device because it would be considered when determining whether the appellant was entitled to keep her rent subsidy and accommodation at the property, but did not inform the Corporation that: 1. Her son, daughter in law, and granddaughter were occupants since at least 10 December 2013, 2. Prior to her application in February 2015, she failed to obtain permission for them to be additional occupants, 3. Prior to her application in February 2015, she failed to notify the Corporation of the income of her son and daughter in law which would have increased the total household income upon which rebates and social housing are considered by the Corporation, 4. She failed to inform the Corporation that since at least 10 December 2013 she was in breach of a condition of her residential tenancy agreement with the Corporation of 30 January 2013, that no more than two persons may ordinarily live in the property at any one time, and 5. Her representation that her son, daughter in law and granddaughter moved into the property on 20 February 2015 was false, and implied that they had not moved into and occupied the property prior to that date. 1. The fraud perpetrated or sought to be perpetrated by the fraudulent device was to hide from the Corporation the truth of each of the aforementioned matters to assist the appellant, 1. Obtain, claim, or keep an ongoing rent subsidy or concessions from the Corporation, and/or 2. Obtain or keep occupation of the property from the Corporation for herself, her son, her daughter in law, and her granddaughter, and/or 3. Keep previous rent subsidies provided by the Corporation since at least 10 December 2013. Sequence Three 1. The appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001. 2. The particulars of this offence are, 1. She wilfully provided to the Corporation a Rent Subsidy Application dated 20 March 2015 constituting her making statements or representations; 2. The application included the false statement or representation that her son, daughter in law, and granddaughter had moved into the property on 20 February 2015, which she knew at the time of the application was false because they had been occupants since at least 10 December 2013, and 3. She wilfully made the false statements or representations in the application, to obtain or claim a rental rebate or rent subsidy. Sequence Four 1. The appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001. 2. The particulars of this offence are, 1. She wilfully provided to the Corporation an Application for Additional Occupant form dated 20 March 2015, constituting her making of statements or representations to the Corporation. 2. The form included the false statements of representations that her son, daughter in law and granddaughter had moved into the property on 20 February 2015, which she knew at the time of providing the form was false because they had been occupants since at least 10 December 2013, and 3. She wilfully made the false statements or representations, to deceive the officer or employee of the Corporation who would consider the form in relation to obtaining for her a rent rebate or rent subsidy from the Corporation. Sequence Five 1. The appellant on 20 March 2015 aided and abetted, counselled or procured, or by act or omission was directly or indirectly concerned in the commission of an offence by her son NC against s 69(1) Housing Act 2001 contrary to s 69(3) Housing Act 2001 [3] . 2. The particulars of this offence are, 1. The appellant wilfully provided to the Corporation the Additional Occupant Form which attached an additional person declaration by NC as being true and correct and in support of her Additional Occupant Form. 2. By the declaration NC wilfully made statements or representations. 3. The declaration included false statements or representations by NC that he moved into the property on 20 February 2015 and did not occupy the property in six months preceding that date, which he knew to be false because he had been an occupant since at least 10 December 2015. 4. NC wilfully made the false statements or representations in the declaration to obtain or claim from the Corporation a rental rebate or rent subsidy or occupation of the property. Sequence Six 1. The appellant on 20 March 2015 aided and abetted, counselled or procured, or by act or omission was directly or indirectly concerned in the commission of offence by her daughter in law KG against s 69(1) Housing Act 2001 contrary to s 69(3) Housing Act 2001. 2. The particulars of this offence are, 1. The appellant wilfully provided to the Corporation the Additional Occupant Form which attached an additional person declaration by KG as being true and correct and in support of her Additional Occupant Form. 2. By the declaration KG wilfully made statements or representations. 3. The declaration included false statements or representations by KG that she moved into the property on 20 February 2015 and did not occupy the property in six months preceding that date, which she knew to be false because she had been an occupant since at least 10 December 2013. 4. KG wilfully made the false statements or representations in the declaration to obtain or claim from the corporation a rental rebate or rent subsidy or occupation of the property. Sequence Seven 1. The appellant by means of a fraudulent device on 20 March 2015 obtained and claimed from the New South Wales Land and Housing Corporation a rental rebate or reassessment of her rental rebate, claimed accommodation benefits for her son, daughter in law, and granddaughter, and hid from the New South Wales Land and Housing Corporation information that would have allowed a retrospective reduction of entitlements and reduce or terminate accommodation benefits contrary to s 69(2) Housing Act 2001. 2. The particulars of this offence are, 1. The fraudulent device was either. 1. The lodging of the March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, or 2. The March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, individually or taken together. 1. The March 2015 Rent Subsidy Application, the Additional Occupant Form, the NC Declaration, and the KG Declaration on 20 March 2015, individually or taken together or the lodging of those with the Corporation, was a fraudulent device because the documents could be considered when determining whether the appellant was entitled to keep her rent subsidy and accommodation, and whether to allow her son, daughter in law and granddaughter to also occupy the property. 2. The documents did not inform the Corporation of that her son, daughter in law, and granddaughter were occupants since at least 10 December 2013, 3. The Appellant prior to the February 2015 application failed to obtain permission for her son, daughter in law, and granddaughter to be additional occupants, 4. The Appellant prior to the February 2015 application failed to notify the Corporation of the income of her son and daughter in law which would have increased the total household income upon which entitlements to rebates and social house are considered, 5. The Appellant failed to inform the Corporation that since 10 December 2013 she was in breach of a condition of her residential tenancy agreement of 30 January 2013, that no more than two persons may ordinarily live in the property at one time. 6. Representations that her son, daughter in law and granddaughter moved into the property on 20 February 2015 were false and implied that they had not moved into and occupied the property prior to 20 February 2015. 7. NC's declaration falsely represented that he moved into the property on 20 February 2015 and had not occupied the property in the preceding six months. 8. KG's declaration falsely represented that she moved into the property on 20 February 2015 and had not occupied the property in the preceding six months. 9. The fraud perpetrated or sought to be perpetrated was to hide from the Corporation the truth of one, some, or each of these matters to assist the Appellant: 1. Obtain, claim, or keep an ongoing rent subsidy or concession, and/or 2. Obtain or keep occupation of the property from the Corporation for the appellant, her son, daughter in law and granddaughter, and/or 3. Keep previous rent subsidies provided by the Corporation to the Appellant since at least 10 December 2013. The Local Court Proceedings 1. The prosecution in the Local Court was protracted. 2. The Appellant's written submissions advise that the originating Court Attendance Notice was filed on 4 September 2015. The defended hearing in the Local Court took place on 13 October 2016, 4 May 2017, 1 April 2019, 2 July 2019, 14 January 2020, 10 March 2020, 18 March 2020, and 4 December 2020 when the presiding Magistrate delivered judgement and found the offences to be established. The Appeals 1. The appeals came to my court on 20 October 2021 and 16 November 2021 for argument upon applications for the tender of what was said to be fresh evidence and for the attendance of two witnesses for cross examination. I delivered judgement on 28 January 2022. I refused the application for attendance of the witnesses but allowed the tender of the documents offered as fresh evidence: LC v R [2022] NSWDC 19. The appeals were then adjourned for preparation of the materials upon which they were to be pursued against a timetable for their provision. 2. This next phase was also protracted, for which there can be no criticism in the circumstance. The advocate appearing for the Respondent through illness became unavailable and the Respondent thereafter retained counsel who needed time to master the volumes of material assembled for the appeals. 3. Hearing of the appeals commenced on 9 December 2022 with five days set aside. From that day the appeals were resumed on 12 and 13 December 2022 and thereafter adjourned to 30 March 2023 for my decision and judgement. Unfortunately due to circumstances the time I allocated for the matter over the Christmas vacation was lost to me. My Associate contacted the parties on 20 March 2023 to arrange a suitable date. The matters were relisted to 30 May 2023 but in anticipation that they could not be accommodated on that day due to continuation of trials, the parties' representatives were notified of the court's difficulties and the proceedings re-appointed to 16 June 2023, and thereafter to 23 June 2023. 4. A large amount of material was put before the court for consideration and analysis; however I was assisted with the careful and thorough submissions by both counsel who identified with commendable precision the steps taken in the investigation and prosecution and the evidence relevant to the issues joined. 5. The thoroughness of the submissions filed, to which counsel spoke over the three days the appeals were heard, were such that I was able to adopt the structure of what was written and said by each in consideration and formulation of reasons for the decisions made. General Principles 1. The appeals are pursuant to the Crimes (Appeal and Review) Act 2001. 2. Section 11 provides relevantly: (1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). (1A) ... (1B) ... (2) An appeal must be made— (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against a conviction) may not be made before sentence is imposed. 1. The appeals were filed within the time specified. 2. Section 20 provides: (1) The District Court may determine an appeal against conviction— (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) … 1. I considered sections 18 and 19 in LC v R [2022] NSWDC 19 when I refused the Appellant's application to have witnesses attend to give evidence but allowed the use of documents sought to be adduced as fresh evidence given that for the most part they were material before the Magistrate for the determination of the issues in that court. There is no need for me to revisit the questions agitated before me on that occasion though the judgement is helpful for the chronology of the proceedings in the Local Court leading to the findings of guilt. 2. I noted in my judgement that the issue joined in the appeals is whether there was authority in the corporation or officers on its behalf to have investigated possible breaches of s 69 of the Act and thereupon commence the prosecution against the appellant. This is much narrower than the task before the Magistrate in what were on the face of things vigorous contests upon an array of matters for determination, and the Appellant's arguments in the appeals across the Magistrate's findings to support the contention that the Magistrate erred and intervention of this court is required. 3. There are several principles of which I must be reminded. 4. First, the approach to appeals from convictions in the Local Court was the subject of decisions in the Court of Appeal including Dyason v Butterworth [2015] NSWCA 52; in which it was stated that such an appeal is not an appeal de novo, that the approach to be taken is analogous to that taken on a civil appeal under s 75A Supreme Court Act 1970, the judge to form his or her judgement of the facts recognising the advantage of the Magistrate who heard and saw the witnesses in the Local Court, and that the powers of the District Court under s 18(1) are exercisable where an Appellant demonstrates the order the subject of the appeal is the result of legal, factual or discretionary error, in which case the court can substitute its own decision based on the facts and law as they then stand. The District Court is not compelled in every case to undertake a complete review of the whole of the evidence to form its own view regardless of the issues raised, and the extent of the review required will depend upon the circumstances of the case and the nature of the error alleged: Lunney v DPP [2021] NSWCA 186. (Note the discussion in Criminal Practice & Procedure NSW at [4 s 18.1] 5. By way of general directions, subject to the authorities to which I referred, and to the extent that they must be considered in reaching my findings of fact and circumstance in which the Appellant is said to have offended the provisions, I accept the following propositions: 1. It is for me to assess the evidence of the various witnesses and decide whether they are reliable. Reliability depends upon two overlapping considerations, honesty, and accuracy. Honesty involves considering not only what the witness said, or perhaps did not say, but also the impression that the witness made. The question, to be resolved, is whether the prosecution has proven the guilt of the Appellant beyond reasonable doubt upon evidence admissible in the prosecution case. 2. I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. 3. These are criminal proceedings in which the prosecution has the onus of proof beyond reasonable doubt in respect of every element of the charges. 4. It is not for the Appellant to prove that she did not commit the offences, but for the prosecution to prove, beyond reasonable doubt, that she did. Suspicion is not a substitute for proof beyond reasonable doubt. The Appellant must succeed if any one of the essential ingredients of the charges has not been proved to my satisfaction, beyond reasonable doubt. 5. If I am unable to decide whether the prosecution has proved its case, beyond reasonable doubt, in relation to any essential ingredient, or if I am left unable to decide whether the prosecution has proved, beyond reasonable doubt, that the Appellant committed the offences, and even though I might suspect that the Appellant might have engaged in the conduct upon which the charges are brought, the Appellant is entitled to the benefit of that doubt, and I must allow the appeals. 6. The Corporation relies upon circumstantial evidence in proof of the occupation of the Property by the Appellant's family, and the wilfulness and purposes of her conduct. Accordingly, 7. I may draw inferences from the direct evidence. They might be valid or invalid, justified, or unjustified, correct, or incorrect. I may only draw an inference adverse to the Appellant from proven facts if such inference is a reasonable inference that can be properly drawn from the proven facts. I should examine any possible inference to ensure that it is a justifiable inference. 1. Because the onus of proof is on the prosecution to prove beyond reasonable doubt every essential element or ingredient of the charges, and that the Appellant committed the offences, any inference or conclusion from basic facts relied upon by the prosecution for this purpose must be a conclusion reached having taken into consideration the material presented on behalf of the prosecution and after having carefully considered the evidence presented by and on behalf of the Appellant, and the submissions of both. 2. There are two steps in this exercise. I must first of all decide whether I am satisfied that the direct evidence establishes the basic facts. These need not be proved beyond reasonable doubt. I examine the evidence with care and consider whether it is reliable before taking the next step and drawing any conclusions from the facts that I regard as established by it. If in my view it is not sufficiently reliable to allow me to conclude what the prosecution asserts after having taken into consideration and given due weight to the submissions of both counsel, I must allow the appeals. 3. If, however I am satisfied that the direct evidence has established the basic facts for which the prosecution contends, then I must consider what inferences I might draw from those basic facts. Whether the inferences for which the Corporation contends are established depends upon the nature of the circumstances relied upon considered as a whole and not individually or in isolation and the degree of clarity and certainty to which the evidence leads to the conclusion that the Corporation has established its case. 4. Before I may draw any inference of the existence of essential matters the Corporation must prove or the Appellant's guilt I must be satisfied as to the existence of a facts and circumstances from which I am asked to draw the conclusion and I must avoid any speculation or conjecture in arriving at a conclusion that is averse to the Appellant. If such a conclusion is to be drawn beyond reasonable doubt it must be on the basis of a rational and logical process of thought. If there is available an alternative hypothesis consistent with innocence the appeals must succeed. 1. The Appellant gave evidence before the Magistrate and called evidence in her defence. An Appellant in proceedings at first instance may always make a response to the case presented by the prosecution by way of an explanation for the whole or part of a prosecution's case, but there is no obligation to do so. The Corporation bears the onus of proving, beyond reasonable doubt that the Appellant committed the offences. The Appellant bears no onus. The Appellant is presumed to be innocent unless and until I am satisfied, beyond reasonable doubt, by the Corporation that the Appellant committed the offences. Although the Appellant may give and call evidence in relation to the whole, or any part of the prosecution case, by way of explanation for it, or by way of additional matters which the Appellant may wish to raise, the Appellant may equally have elected to give no such explanation or call any evidence in that regard. The Appellant was entitled to say nothing and make the Corporation prove that she committed the offences. The Appellant's election to give evidence in the proceedings does not attract any burden of proof. She was entitled to have the court weigh the evidence given, but this does not mean that if the court does not accept the truth or accuracy of her evidence, or any part of it, that it must follow that she is guilty of the offences. Were I to doubt the truth or accuracy of the Appellant's evidence it remains that I am not to dismiss the appeals unless I accept, beyond reasonable doubt, the truth and accuracy of the evidence led to establish each of the elements of the offences. The Appellant's Written Contentions 1. The Appellant summarised the jurisdiction of the court to hear and determine these appeals found in s 11(1) and s 20 (1)(a) Crimes (Appeal and Review) Act 2001. The Crown raised no issue regarding this. 2. The Appellant summarised the history of the proceedings from commencement on 4 September 2015 naming the Corporation constituted by the Act as prosecutor in seven sequences. 3. Separate charges upon the same subject matter were brought against the appellant's son NC and daughter in law KG Their daughter was born on 4 December 2013. 4. The original Court Attendance Notice was subsequently amended. 5. The offences against the Appellant were summarised in terms consistent with what I provided above though in less detail. However the factual matrix described in substantial detail the facts and circumstances from which the offences are alleged, consistent with my summaries, followed by extensive submissions upon the law relevant to the determination of the appeals and the findings of fact that ought to follow. The Appellant's Factual Matrix 1. The prosecutions of the Appellant and her son and daughter in law were heard together, after which the Magistrate found proved some of the charges brought against NC and KG. Each was convicted. There is no challenge in these appeals in respect of their convictions. 2. The lengthy Local Court proceedings included various interlocutory applications brought by the defendants and interlocutory judgements delivered on 5 August 2016, 14 June 2017 and 16 May 2018. 3. The submissions include a summary of uncontroversial background circumstances: 1. The Appellant aged 52 years, a disability support pensioner, remains of modest circumstances. 2. From 2013 she lived in the Property at Lake Haven with her now young adult daughter AB pursuant to a Residential Tenancy Agreement she signed on 30 January 2013. The Property is public housing for the purposes of the Act and the Corporation a statutory corporation established under s 6(1) of the Act. 3. The Residential Tenancy Agreement provided for a fixed term tenancy of six months, with the condition that, No more than 2 persons may ordinarily live in the premises at any one time. 1. On or about 30 January 2013 the Appellant signed and lodged with the Corporation, also referred to as Housing NSW, an agency of the Department of Family and Community Services, a "Rent Subsidy Application". Under s 56 of the Act the Corporation had power, after an investigation under s 58, to grant to an applicant a weekly rebate of rental. In the Rent Subsidy Application the Appellant disclosed the occupants of the property as herself and her daughter AB. The Appellant authorised the Corporation to obtain her income details from Centrelink. 2. The Rent Subsidy Application was approved, whereupon the Appellant was entitled to the subsidy on an ongoing basis. The Corporation had power pursuant to s 57(1) of the Act, after investigating under s 58, to vary or cancel any rental rebate granted under Part 7. The Rent Subsidy Application stated: Important: You must advise Housing NSW in writing within 28 days of any changes to the people in the household, or of any changes to the income or assets of any person in the household. 1. The Rent Subsidy Application did not define or explain the phrase. … changes to the people in the household, 1. On 8 August 2013 the Corporation wrote to the Appellant confirming that her residential tenancy agreement was subject to a further fixed term for five years from 5 August 2018 (sic.) This must be meant as 2013. 2. Margaret Smith, employed by Family and Community Services, the client services officer for the Property from about February 2013 to May 2015, whilst conducting an inspection of houses in the vicinity of the property in or about August 2014, was given information suggesting that additional people were staying with the Appellant at the Property. Consequently, she sent an email to the Tenancy Fraud Unit of Family and Community Services, stating, I have had my suspicions that there are unauthorised additional occupants residing at this property but have not been able to gather any evidence. 1. In the email she referred to a neighbour of the appellant having mentioned, … a number of cars coming and going from the property and there would be at least 3 adults residing there. 1. She included the model and registration numbers for the vehicles observed and asked for investigation of whether they were registered to the property. 2. In response Mr Fadi Chamoun, an "Advocate-Investigator" instructed Ms Smith to assist by issuing the appellant with a General Subsidy Review by letter attaching a Rental Subsidy Application for completion and return. Mr Chouman said in his email to Ms Smith: NOTE: Client is not to be notified that the review is in relation to the investigation concerning undeclared additional occupants. 1. On 6 November 2014 the Corporation sent the Appellant a letter stating it wished to review her eligibility for a rent subsidy and requesting that she complete a Rent Subsidy Application and Income Confirmation Consent. The Corporation advised: If you do not contact us or return your information by the above date, we will assume that you no longer wish to receive a rent subsidy and will charge you market rent. 1. The letter advised: You must tell us in writing within 28 days of any changes to the income or assets of yourself or any household member. It is important that you do this because Housing NSW does not receive this information automatically from Centrelink. 1. On 22 December 2014 the Appellant lodged with the Corporation a Rent Subsidy Application, in which she again disclosed the occupants of the property as herself and her daughter AB. 2. In or about December 2014, Ms Smith attended the property, conducted an inspection, and observed beds in the garage. She gave evidence to the Local Court that she saw, … personal belongings, a baby change table, baby products, baby nappies. 1. On 13 January 2015 Mr Chouman sent a letter to the Appellant suggesting she might be claiming a subsidy to which she was not entitled and alleged she might have not declared additional occupants at her residence. 2. On 24 February 2015 the appellant lodged with Family and Community Services a further Rent Subsidy Application. On page 2 it asked, What has changed? 1. In response the appellant ticked the box "Household", and provided the following details: Details of change Date Son moved in 20.02.2014 Daughter in law moved in 20.02.2014 Granddaughter moved in 20.02.2014 1. In a telephone conversation on 3 March 2015, the Appellant advised Ms Smith that she had made an error in the Rent Subsidy Application, and that NC and KG moved in during 2015, not 2014. Ms Smith informed the Appellant that she must lodge another Rental Subsidy Application with the updated information. 2. On 5 March 2015 the Appellant provided the Corporation a handwritten letter stating she made an error in the 24 February 2015 application and that NC, KG and their daughter moved into the property on 20 February 2015, not 20 February 2014. 3. The provision of this letter to the Corporation is the subject of Sequences One, Two and Seven. 4. By letter of 13 March 2015 the Corporation requested the Appellant to complete another Rent Subsidy Application and advised, … If the information [sought] is not provided, we may cancel your rent subsidy and you will be charged market rent. 1. On 20 March 2015 the Appellant lodged a revised Rental Subsidy Application; on page 2 responding to the question "What has changed?" the appellant ticked the box "Household", and provided the following details: Details of change Date Son moved in 20/02/2015 Daughter in law moved in 20/02/2015 Granddaughter moved in 20/02/2015. 1. This is the subject of Sequences Three and Seven. 2. On or about 20 March 2015 the Appellant provided an Additional Occupant Form to the Corporation, including the same information, and is the subject of Sequences Four and Seven. 3. About this time, NC and KG made declarations to the Corporation stating that each had moved into the property on 20 February 2015, for reasons associated with the Appellant's medical issues. The Appellant provided their declarations to the Corporation when she provided the Additional Occupant Form. Provision by the Appellant of those declarations is the subject of Sequences Five, Six and Seven. 4. On 31 March 2015 the Corporation approved NC and KG as occupants of the property. On 1 April 2015 Mr Chouman wrote to the Appellant confirming an appointment for interview, … regarding outstanding matters under investigation by the Tenant Fraud Unit. 1. On 7 April 2015 the Corporation wrote to the Appellant about her rent subsidy and rent account, advising her rent account was in arrears in light of the additional occupants added to the property. Subsequent civil proceedings brought by the Corporation against the Appellant in the New South Wales Civil and Administrative Tribunal for arears of rent resulted in consent orders and payment of an agreed amount by the Appellant to the Corporation. 2. On 17 April 2015 NC and KG signed statutory declarations stating they were moving to a new residence in Victoria Street, Werrington with their residential address at the time of the declaration as the Property. 3. On 30 April 2015 Mr Chouman interviewed the Appellant, which he said at the commencement concerned evidence the Corporation had received which, … leads us to believe that you may have not declared occupants – undeclared occupants – in your Housing NSW property… 1. On 4 February 2018 the Corporation approved the Appellant's extension of her lease for a further five years. 1. Against this factual matrix the Appellant's submissions turned to "The appellate standard" and the powers of the Court hearing the appeals. The Appellate Standard 1. Consistent with what I wrote earlier, the submissions note the appellate standard for a conviction appeal brought pursuant to s 18(1) Crimes (Appeal and Review) Act 2001 is correction of error: Dyason v Butterworth [2015] NSWCA 52; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290; Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218. 2. The term "error" has no precise meaning; but requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How this is achieved will depend upon a range of factors relevant to the specific case. The appellate judge is to form their judgement of the facts so far as they able to do so, recognising the advantage enjoyed by the Magistrate who heard and saw the witnesses in the lower court: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265. While the Magistrate's reasons are not part of the transcript of evidence, recourse may be had to them on appeal; otherwise, the appellate function cannot properly take place: Charara v The Queen (2006) 164 A Crim R 39. The powers of the District Court pursuant to s 18(1) are exercisable (with counsel's emphasis), …where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand. 1. In McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 at para [25] Bell P said in respect of an appeal pursuant to s 18, An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a s 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the Magistrate (supplemented by any further evidence received pursuant to s 18(2) of the CAR Act or as a result of the calling of a witness pursuant to s 19), whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the Court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo cf. an appeal pursuant to s 17 of the CAR Act. 1. The Appellant submits that the scope of the Court's function in an appeal pursuant to s 81(1) Crimes (Appeal and Review) Act is properly informed by the scope of the issues raised by the Appellant, and thus the Court is not obliged to proceed to review the whole of the record to form its own judgement as to the Appellant's guilt. Nonetheless, the requirement that the Appellant demonstrates error in the appeal does not reverse the onus of proof, and the prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, [35]. Lunney v Director of Public Prosecutions [2021] NSWCA 186, [29]-[30]. 2. The Appellant submits that though the Court is not relieved of conducting a review on the basis of appellate deference to the advantages of the Magistrate, especially where demeanour-based findings are made, for appeals conducted by way of rehearing in respect to demeanour-based credibility findings contemporaneous evidence, objectively provable facts, and apparent logic of events, are likely to be of greater weight than demeanour. Grounds of Appeal 1. The Appellant describes what were said to be six grounds of appeal in three categories, however there are in total seven grounds. Category One: Non-compliance by the Corporation with the Criminal Procedure Act 1986 by commencing the prosecution. Ground One: The Magistrate was in error in failing to dismiss the prosecution because the Corporation was not authorised to bring the prosecution in the manner it did. Category Two: Errors in the admission of evidence. Ground Two: The Magistrate erred in the admission of evidence of the record of interview of 30 April 2015 into evidence, or alternatively, erred in treating statements made by the appellant during the interview as admissions. Ground Three: The Magistrate erred in admitting bank and other documents contrary to the Criminal Procedure Act 1986 Category Three: Errors in findings and approach resulting in the convictions. Ground Four: The Magistrate asked the wrong question and misconstrued the offence the prosecution was required to prove. Ground Five: The Magistrate erred in not finding that the Corporation had failed on the evidence before the Court to exclude all reasonable hypotheses consistent with innocence. Ground Five (sic): The Magistrate made errors in applying the onus of proof. Ground Six: Separately, and alternatively, the Magistrate erred in convicting the appellant of Sequence Two of the amended Court Attendance Notice. The Arguments Ground 1: The Corporation's Failure to Comply with the Criminal Procedure Act in commencing the prosecution. 1. The Appellant argues that the Corporation was not authorised to bring the prosecution in the manner it did. As expressed, this implies the complaint is about the manner and form of the investigation rather than whether the Corporation ought to have undertaken the investigation. Nonetheless, in the Local Court the Appellant sought dismissal of the proceedings on grounds including that the Corporation lacked authority to commence the proceedings, and that the Court Attendance Notice was defective failing to meet requirements of the Criminal Procedure Act. The Magistrate delivered judgement rejecting this contention on 14 June 2017. 2. The Appellant does not seek to re-enliven all arguments advanced on her behalf below in relation to the validity of the prosecution, however, for the reasons hereunder maintains that the Corporation lacked authority to prosecute, and that the Magistrate erred in deciding not to dismiss the prosecution on that basis. 3. The Corporation adduced affidavit evidence from its solicitor Mr Nathan Cureton of relevant delegations pursuant to s 15(2) of the Act. [4] Specifically: 1. A delegation of 1 September 2009 signed by the Director-General of the Department of Human Services delegating authority under the Housing Act 2001 to the Chief Executive of Housing NSW, Mr Mike Allen. [5] 2. A delegation of 24 September 2009 signed by the Chief Executive of Housing NSW, Mr Mike Allen. 3. A delegation of 1 July 2013 signed by Acting Director-General of Family and Community Services, Mr Jim Longley without the schedule to the delegation; it could not be located. 4. A delegation of 4 August 2015 signed by the Secretary of Family and Community Services, Mr Michael Coutts-Trotter. 5. A delegation of 19 October 2015, signed by Minister Brad Hazzard. 1. Missing from the evidence was a delegation located by the Appellant's legal representatives from subpoenaed documents in the Local Court proceedings in 2017, signed by Minister Gabrielle Upton, dated 16 January 2015, with general delegation powers under s 5 Community Welfare Act 1987. 2. The Appellant's contention is that the prosecution was not properly authorised upon the following analysis. 1. A prosecution or proceeding in respect of an offence under the Act may only be instituted by or on behalf of the Corporation: s 74(2). 2. The Corporation was named on the Court Attendance Notice and the amended Court Attendance Notice as the relevant prosecutor. Nonetheless, the Corporation as a statutory entity established by s 6 of the Act can only act through its officers, was subject to the direction and control of the Minister for Family and Community Services: s 6(5), its affairs to be managed by the Secretary of Family and Community Services: s 6(2). The Corporation could not employ staff: s 7(3). 3. No evidence was led in the Local Court or explanation offered as to the mechanism by which public servants employed within Family and Community Services were deemed "officers" of the Corporation in the fulfilment from time to time of the functions or powers of the Corporation. Neither was there any direct evidence that identified who decided the prosecution ought to be brought. The Corporation cannot have instituted the proceedings without an individual making that decision for the purposes of s 74(2). 4. When the prosecution was commenced by filling the Court Attendance Notice on 4 September 2015 the relevant delegation was the delegation signed by Minister Gabrielle Upton, dated 16 January 2015. This operated from 16 January 2015. It contained no delegation for any of the purposes of Part 10 of the Act, including under s 74(2) for the institution of proceedings. 5. The Appellant says this caused a dilemma for the Corporation recognised by its legal representatives, revealed in email in which Ms Jade Lee wrote to Nathan Cureton on 8 November 2016: I note that the Instrument of Delegation dated 16 January 2014 (relevant to the current proceedings) does not specify any authority to commence prosecution. 1. The Appellant submitted that the delegation signed by Minister Upton applied in this case, notwithstanding the subsequent delegation issued on 14 August 2015 by Mr Michael Coutts-Trotter, because the Corporation was subject to the direction and control of the Minister. 2. In any event the delegation issued by Michael Coutts-Trotter did not purport to replace or overcome the delegation by Minister Upton, which invested no power in any relevant officer to authorise or commence a prosecution. 3. The Secretary of the Corporation could commence the prosecution, absent delegated authority: s 6(3). However, the proceedings were commenced in the name of the Corporation. There was evidence purporting to demonstrate that Mr Vevers, Deputy Secretary, Family and Community Services, authorised or approved the prosecution, but it did not establish what he sought to approve. 4. In any event, Mr Vevers was not the Secretary of Family and Community Services. 5. For these reasons the Magistrate erred in failing to find that the prosecution was invalid. 1. It appears to me that the Appellant's analysis here is flawed: 1. Section 6, as it was, provided (my emphasis), 6 Establishment of New South Wales Land and Housing Corporation (1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation. (2) The affairs of the Corporation are to be managed by the Director-General. (3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation. (4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown. (5) The Corporation is subject to the direction and control of the Minister. (6) (Repealed) (7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department. (8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act. 1. The terms of sub section 6(3) must mean that the Director-General, may delegate within the terms of the provision. 2. Section 74 of the Act provides, 74 Proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be disposed of summarily before the Local Court. (2) A prosecution or proceeding in respect of an offence under this Act may only be instituted by or on behalf of the Corporation. 1. The plain words used in sub section 74(2) make clear that a prosecution such as this under the Act may only be instituted by or on behalf of the Corporation. I do not accept as correct that there was no evidence of how the decision to prosecute came about, but if it were so, it does not follow that evidence was necessary other than to show that the institution of the prosecution was by or on behalf of the Corporation with reference to the legislative and administrative scheme whereby the functions of the Corporation, including for the prosecution of offences, are authorised by appointed delegates. 2. The submission that the delegation signed by Minister Upton applied in this case, notwithstanding the delegation issued on 14 August 2015 by Mr Michael Coutts-Trotter, because the Corporation was subject to the direction and control of the Minister I do not accept. It overlooks the terms of the provision constituting the Corporation in section 6: 3. The Ministerial function of direction and control does not detract from the scope of the functions of the Corporation performed by the Secretary of the Department of Human Services, or the Director-General of the Corporation, or their delegates, or upon the operation of the Community Welfare Act 1987 mentioned below. 4. I reviewed the Community Welfare Act 1987. The term Department in s 3 to mean the Department of Family and Community Services. Powers given the Minister are articulated in s 6. The powers of delegation re provided in s 5: 5 Delegation (1) The Minister may delegate to the Secretary, or to any other person, the exercise of any of the Minister's functions under the community welfare legislation, other than this power of delegation. (2) The Secretary may delegate to any person the exercise of— (a) any of the functions delegated to the Secretary by the Minister, or (b) any of the other functions of the Secretary under the community welfare legislation, other than this power of delegation. (3) In this section, a reference to the community welfare legislation includes a reference to each of the following Acts (and to any instrument under the Act) even though the Act may not be administered by the Minister within the Department— Children (Criminal Proceedings) Act 1987 Children (Protection and Parental Responsibility) Act 1997 (4) However, a reference to community welfare legislation in this section does not include a reference to the Boarding Houses Act 2012 even if it is wholly or partly administered by the Minister. 1. In s 3 the term community welfare legislation means, (a) this Act and any other Act administered by the Minister within the Department, and (b) any instrument under this Act or any other such Act, 1. The chronology of events includes: 1. On 16 January 2015 the Upton delegation took effect (subject to the error in the instrument of delegation with the handwritten date on page one of 16/1/15 and on page two of 16/1/14 with what appear to be the minister's initials, and the assertion on page two that the instrument takes effect from 16 January 2015.). There is no delegation of 16 January 2015 other than the Upton delegation with the anomaly. Relevant email referred to the delegation of 19 October 2015 by Minister Brad Hazzard. 2. 5 March 2015, date of the offences charged in Sequences One and Two. 3. 20 March 2015, date of the offences charged in Sequences Three, Four, Five and Six. 4. 14 August 2015, delegation by Michael Coutts-Trotter (Secretary of Family & Community Services). 5. 4 September 2015. proceedings commenced. 6. Thus the proceedings were commenced after the delegation by Michael Coutts-Trotter, which I accept was proven to authorise the prosecution. 1. I do not accept the Appellant's submissions upon this point for my reasons herein and those offered by the Respondent to which I later refer. Errors in the admission of evidence Ground 2: The Magistrate erred when admitting evidence of the record of interview of 30 April 2015, or alternatively, in treating statements made by the appellant during the interview as admissions 1. The Appellant argues that the Magistrate erred when admitting evidence of the record of interview, or alternatively, in treating statements made by the Appellant during the interview as admissions, or in failing to exclude the evidence of the admissions considering the circumstances in which the admissions were made. 2. The Appellant submits that Fadi Chouman, the "Advocate Investigator" at Family and Community Services, had no authority to conduct the interview, that he and the Corporation had no authority to investigate to discover fraud suspected of the Appellant, and consequently this affected the admissibility of the record of interview upon the application of the Evidence Act 1995. The Appellant referred to Fadi Chouman's affidavit of 1 March 2017. 3. The Appellant submitted these questions: 1. First, whether the Corporation was permitted to investigate the Appellant in the absence of any statutory or other authority to do so. 2. Secondly, if statutory or other authority was required, whether it existed. 3. Thirdly, assuming negative answers to the first and second questions, whether the Magistrate erred admitting evidence obtained in the investigation. 1. For the first question the Appellant submitted the Corporation was constrained in the investigations it was permitted to undertake upon the following analysis: 1. In the Act, Parliament invested the Corporation with certain investigative powers to be employed for certain purposes, but not beyond, reflected by the inclusion of Part 7 and in particular s 58, and s 68. Part 7 provides for rental rebate. 2. S 58 in Part 7 provides for investigations of applications: (1) The Corporation may make an investigation to determine the weekly income of: (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and (b) any other resident of the house in which that person resides. (2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person's weekly income and of the weekly income of any other resident of the house in which that person resides 1. S 68 found in Part 10, Miscellaneous Provisions, provides for investigations at the instance of the minister: (1) The Corporation may, and whenever required by the Minister must, conduct investigations as to the methods that should be adopted to ensure the provision in the State of adequate housing accommodation on reasonable terms or at reasonable rentals. (2) The Corporation must furnish the Minister with a report setting out the results of any investigation made under this section. 1. There was at the material times no other provision empowering a broader investigative function in the Corporation. 2. Parliament addressed this with the Residential Tenancies and Housing Legislation Amendment (Public Housing-Antisocial Behaviour) Act 2015 commenced on 18 December 2015 amending the Housing Act 2001 with the introduction of s 69C. This provides, 69C Power to obtain information, documents and evidence to prevent or investigate fraud (1) For the purposes of preventing or investigating fraud against the Corporation or the Secretary, the Corporation or the Secretary (as the case requires) may, by written notice, require a person to provide information, produce documents or appear before a person to give evidence and produce documents, as specified in the notice. (2) The Corporation or the Secretary is not to make any such requirement if it appears to the Corporation or the Secretary that— (a) the person concerned does not consent to compliance with the requirement, and (b) the person would not, in court proceedings, be required to comply with a similar requirement on the grounds of public interest, privilege against self-incrimination or legal professional privilege. (3) A person who, without reasonable excuse, fails to comply with the terms of a notice given to the person under this section is guilty of an offence. Maximum penalty—20 penalty units. 1. These provisions indicate that the intention of Parliament was that the Corporation did not have "a plenary power", that is to say, it did not have unqualified or unfettered power to embark upon investigations even of frauds against the Corporation. 2. The limitation of investigative powers given by this legislation is consistent with the tenant's right to quiet enjoyment and non-interference from the landlord protected by s 50 Residential Tenancy (sic) Act 2010. 1. For the second question, the Appellant submitted that the investigation conducted from in or about December 2014 was without authority under the Act or otherwise empowering the Corporation to investigate fraud as undertaken in this instance: 1. The powers given to the Corporation were constrained by s 58 of the Act limited to investigations to determine the weekly income of an applicant for or a recipient of a rental rebate and of any other resident of the house in which that person resides. 2. It is well-established that the purpose in s 58 of determining the weekly income of the relevant persons must be a purpose of the investigation but need not be its sole or ongoing purpose: New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431, [38]. 3. The Appellant concedes the Corporation might have been entitled to investigate the prospect of fraud by a tenant, ancillary to or in connection with an investigation empowered under s 58 of the Act, but upon the evidence of the Corporation and Fadi Chouman the purpose and focus of the investigation was to discover fraud by the Appellant from the suspected unapproved occupancy of the property by her family and did not investigate under s 58. 4. The Magistrate erred accepting or assuming the investigation conducted by the Corporation through Fadi Chouman was one authorised under Part 7 of the Act. 5. McCallum J in Twaddell v New South Wales Land and Housing Corporation [2014] NSWSC 7, at [41]: …it would be false logic to conclude that, since an inquiry to determine income requires identification of the relevant persons, an inquiry to identify the relevant persons is an inquiry to determine income. 1. Here, as in Twaddell, at [47], … there was no attempt to obtain any information as to [the appellant's] income [or the income of any other person]. 1. Fadi Chouman in evidence on 30 July 2018 about the nature of the investigation (including in respect of the Appellant) said the investigation was not necessarily just about showing that NC lived at the premises (Transcript at page 25.22). He said his investigation "involves" investigating income and undeclared income (Transcript at page 25.14). 2. The Corporations was not concerned with investigating income or undeclared income, otherwise Mr Chouman would have interviewed NC and KG about their income for the relevant period. He did not interview either (Transcript page 22.36), did not ask the Appellant any question about their income, and made no enquiries of anyone about the income of any suspected additional occupant at the property. Fadi Chouman investigated solely upon the question of fraud, which is supported by communications, including on 26 October 2017 seeking information from Roads and Maritime Services. In email he responded when asked for confirmation of the statutory power under which his request for information was made, ... the Corporation is investigating a fraud against the Corporation. 1. Mr Chouman identified s 69C of the Act as the source of his investigatory power. 2. On 24 June 2015 Mr Chouman wrote to Medicare seeking residential address information for NC and KG and their daughter, representing therein, … Housing NSW has received an allegation that [NC and KG] who are receiving a benefit from Housing NSW, has failed to properly declare to HNSW their circumstances. and that Persons in receipt of a housing benefit are required to notify Housing NSW within 28 days of changes to their circumstances, pursuant to Section 69 and 69A of the [Housing Act]. It is therefore illegal to contravene these provisions and if provided, may result in serious and/or criminal sanctions being imposed. 1. Mr Chouman wrote, Housing NSW is authorised to undertake an investigation of these matters, pursuant to Section 58 of the Housing Act 2001 (NSW). 1. This provision was irrelevant considering the circumstances and nature of the investigation exposed in the evidence which was not for the purposes for which the provision was enacted. Belief that it was otherwise, and that he said as much to others in the course of his work, does not establish that it was so. 2. Mr Chouman's investigation had one object only, to obtain evidence of fraud by the appellant, not an investigation the Corporation was empowered or permitted to conduct. 3. The appellant concedes the absence of authority to investigate did not preclude the Corporation from instituting proceedings for offences alleged under s 69 of the Act. These are not subject to a precondition that an investigation be conducted. Nonetheless, the Corporation lacked authority to conduct the investigation undertaken, which requires consideration of the consequences of that lack of authority. 1. For the third question, and the consequences of Mr Chouman holding himself out to the Appellant in writing in advance of the interview and during the interview as an investigator authorised to ask her questions about her tenancy: 1. It was impressed upon the Appellant by letter of 13 January 2015 that if she chose not to attend the interview, Housing NSW, … may take action to terminate your rental subsidies. 1. The Magistrate ought to have assessed the admissions in the interview with reference to s 138(1)(a) Evidence Act 1995. The admissions were obtained "improperly". 2. In Parker v Comptroller-General of Customs (2009) 252 ALR 619 French CJ said at para [29] that the relevant ordinary meanings of "improper" include, … not in accordance with truth, fact, reason or rule, abnormal, irregular; incorrect, inaccurate, erroneous, wrong. 1. Alternatively, the admissions should in the circumstances have been excluded under s 90 Evidence Act. 2. The Magistrate erred in finding the Appellant made the "admissions". Alternatively, if the Magistrate did not err admitting the record of interview, the Magistrate erred, upon a proper reading of what the Appellant said in response to Mr Chouman, in treating certain answers as "admissions" upon the following analysis: 1. During her interview on 30 April 2015 the Appellant gave responses offered as evidence of admissions and accepted by the Magistrate to be admissions concerning the "full extent" of the occupation of her house by NC and KG: Transcript 4 December 2020 17.27. The Magistrate found the Appellant's "admission" in the interview with Mr Chouman "confirms that evidence" that, [NC and KG] were occupants for the vast majority of the time between December 13 and February 15. 1. The Appellant did not make the admissions the Magistrate found. 2. In his judgement addressing challenge to the interview the Magistrate acknowledged, .. there are aspects of the interview that would suggest it was conducted by a person with limited experience in interviewing techniques and methods. 1. The deficiencies in the interviewing technique and method seriously infected the reliability of the responses as admissions by the Appellant. Consideration of a response offered as an admission requires assessment of the quality of the question posed. Scrutiny of the questions asked and the answers was necessary. The Magistrate failed to do so. 2. Upon a proper examination of the interview the Appellant did not make admissions that the statements she made to Housing NSW were "false" or were "fraudulent device". At the highest, the Appellant seemed to admit that NC and KG stayed with her extensively but not permanently after the birth of her granddaughter. 3. Mr Chouman put inconsistent, unclear, and confusing propositions to the Appellant, which ultimately led her to admit to certain things: 1. He suggested that she was required to "tell Margaret" NC and KG were staying with her, even though the appellant stated that, …they stayed a lot longer from the beginning of the year and then permanently moved in at the beginning of February [2015] … … they have been with me more regularly since all the complications with GC .. 1. that they stayed over only a, … few weeks at a time", 1. they were staying, … not all the time, but most of the time, 1. and … they hadn't told me that they wanted to actually permanently move in". 1. Mr Chouman seemed emboldened by these answers, suggesting to the Appellant that she needed to have told Margaret, [6] … I've got my son, granddaughter, daughter-in-law coming up consistently, regularly, I hope it's not a problem. 1. Mr Chouman put words into the Appellant's mouth. She had not to this point said that NC and KG stayed consistently, or regularly, and it is clear from the Appellant's response to from Mr Chouman that not only did she say she did tell Margaret (which Mr Chouman did not explore), but she appeared to understand Mr Chouman to be asking her about the "28 day" rule, her understanding of her disclosure obligations under the residential tenancy agreement. 2. At transcript page 23.27 of the interview the Appellant answered, … I don't know. I can only apologise … in response to multi-pronged question. 1. When the Appellant said, …I made a mistake, … it is not clear whether the mistake admitted was her understanding or what Mr Chouman suggested to her was a breach of her disclosure obligations under the residential tenancy agreement. Mr Chouman put to the appellant that NC and KG … were there for a regular and consistent period … 1. It is unclear what a "regular and consistent period" meant. It was unclear, in the context of the statement the Appellant made in the forms that NC and KG had "moved in" on 20 February 2015, whether her admission of them living with her for a "regular and consistent period" meant that she had made a false statement or was admitting to having done so: Interview at pages 20-22, 23.1, 23.7. 2. The Residential Tenancy Agreement provided at clause 39 that the tenant agrees, … to give the landlord written notice within 28 days of any change of household membership; or to give the landlord written notice when an additional occupant resides in the premises for longer than 28 days. 1. The Appellant participated in the interview without a support person. 2. Mr Chouman asked questions both contradictory and confusing: Whether it's not 365 days a year, they're still living with you. Just for the recording, exactly what date did they move in permanently? This is the last time I'm going to ask you." 1. This was a contradiction, in that Mr Chouman asked when NC and KG "permanently" moved in, but at the same time suggested that this might mean "not 365 days a year". What he asked here is open for speculation. The confusing and coercive nature of the question meant that the answer given by the Appellant was unclear. 2. Her confusion appeared at the interview page 24.42 where she added: They moved in just before GC was born, permanently. 1. Considering Mr Chouman's suggestion that permanent does not mean "365 days a year", reliance on the appellant's statement as an admission that NC and KG moved in permanently, in other words on an ongoing and indefinite basis, was highly prejudicial. 2. At page 25 of the interview transcript the Appellant gave some explanations for "why you didn't tell Housing NSW", but it is unclear from the course of questioning what Mr Chouman was suggesting must be disclosed, or how any obligation the Appellant had to inform Housing NSW of the living arrangements of NC and KG connected to the allegation that she had provided a false statement that the couple had moved in on 20 February 2015. Mr Chouman diffused this confusion but added to it by putting to the Appellant that "this is a breach of Housing NSW policy". 3. In his reasons for judgement, the Magistrate stated that: Transcript of 4 December 2020 page 17.33. [The appellant] agreed that she knew that she was making a false statement and that she did it to try and help the children … 1. However, 1. The Magistrate had ruled inadmissible a portion of the interview, from page 26, line 28, which included the Appellant's answer "Yes" to the question asked, "You are admitting that that is a false statement?" 2. Secondly, the Appellant did not say in the interview that she knew at the time she made the statement that it was a false statement. 1. At transcript 4 December 2020 page 17.33 the Magistrate might have been referring to an earlier answer by the Appellant (at page 25, line 33 of the interview transcript) where she answered "Yes" to the question: Are you also aware that that could be a breach of the section 69(a), 69(2) of the Housing Act? Section 69(1) is failure to notify Housing NSW within 28 days, section 69(1) is making a false statement in a rental subsidy form? 1. However, the question contained multiple questions, was muddled, vague and crucially misstated what the identified provisions of the Act said. The question was unfair, and in the circumstances in which the interview was conducted, it is unclear what the Appellant intended to admit. 1. For these reasons the Appellant contends the manner in which the interview was conducted, the questions asked, and the approach to understanding the answers given including those said to be admissions leads to the conclusion either 1. That the Magistrate erred in admitting the interview into evidence: s 85(3)(b)(i), s 90(b) and s 138 Evidence Act 1995 [7] , or, 2. If the interview was admissible, the Magistrate erred in attributing any weight to the appellant's answers as admissions to support the conclusions reached that the Corporation had proven the charges beyond a reasonable doubt. 1. I am not persuaded by these arguments. 2. I do not accept that it is correct to say that the Corporation could not as part of its management function investigate conduct in breach of the provisions imposing obligations upon tenants to provide when the need arises accurate and truthful information regarding their circumstances and any change to them upon which entitlements would be adjusted. 3. Moreover, s 69B of the Act provided for access to information held by other agencies for the prevention, investigation, and prosecution of fraud. 4. No prosecution for offences under the Act, for which it provides, commences in a vacuum and without grounds upon which to bring the proceedings, for which there is scope as was submitted on behalf of the Respondent for the investigation that was performed in this case. 5. I am not persuaded of the arguments advanced upon the aforementioned provisions in the Evidence Act. I note that the Respondent suggests that the Appellant has not adequately addressed the impact of these provisions upon the interview process, but I accept that the Appellant's submissions at least generally attract consideration of the provisions. This said, I have considered the evidence upon which the Magistrate reached his conclusions upon the conduct of the interview and the evidential value of the responses and do not accept that the nature of the questions and the manner in which they were put render the responses inadmissible upon the grounds that the truth of the admissions was adversely affected, or that it was unfair to use the evidence as evidence of admissions. I do not accept that the evidence accepted by the Magistrate reveals any impropriety such as to engage section 138 Evidence Act 1995. Ground Three The Magistrate erred in admitting the bank and other statements contrary to the Criminal Procedure Act 1986 1. The Court had in evidence bank statements for: 1. Greater Bank (account XXX695 and account XXX909) – Exhibit 42. 2. St George Bank (account XXX173 and account XXX527) – Exhibit 41. 3. Commonwealth Bank (accounts XXX972, XXX563 and XXX237) – Exhibit 54. 4. Documents tendered by the prosecution to show the residential addresses nominated by the Appellant, NC, and KG: Transcript 4 December 2020 page 7.1. These were part of the prosecution brief of evidence for the purposes of s 183(2) Criminal Procedure Act 1986. [8] 1. Most of the Bank Documents and Address Documents were not served in accordance with s 183(3) of the Criminal Procedure Act, which required, The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. 1. The prosecution served a statement of Mr Chouman of 10 February 2016 to which were annexed some of the Address Documents. 2. The trial commenced on 8 June 2016. Defence counsel for NC indicated an objection to the "allegedly the bank records of NC" served just prior to the commencement of the trial: Transcript 8 September 2016, page 2.37. 3. Further documents were served by the prosecution on the appellant directly on 29 September 2016. The defence raised an objection upon the late service of the Address Documents when the matter was next before the Court on 13 October 2016. 4. The duty on the prosecution to serve the brief of evidence crystallises once a date to commence the hearing is fixed: DPP v West (2000) 48 NSWLR 647, 658-659 (Mason P). [9] 5. The Magistrate erred in failing to deal with the documents pursuant to s 183(4) or s 187(1) Criminal Procedure Act 1999. Accordingly, those of the Address Documents relied upon by the Magistrate were inadmissible: s 188. The Address Documents were ultimately of critical significance to the Magistrate's findings of guilt: Transcript 4 December 2020 pages 7.1-11.27. 6. Considering the Magistrate's failure to comply with the requirements of these provisions the convictions entered upon the findings of fact based in part, but materially, on those documents should be quashed. 7. I am not persuaded of the merit of this submission largely for the reasons offered by the Corporation to which I shall come. The protraction of the proceedings in the Local Court gave the Appellant ample opportunity to consider and respond to these documents, which the transcript reveals in the cross examination of the witnesses called to address them. In the circumstances the ameliorating effect of section 188(2) was justified. Errors in findings and approach resulting in the convictions. Ground Four: The Magistrate asked the wrong question and misconstrued the offence the prosecution was required to prove. Ground Five: The Magistrate erred in not finding that the Corporation had failed on the evidence before the Court to exclude all reasonable hypotheses consistent with innocence. Ground Five (sic): The Magistrate made errors in applying the onus of proof. Ground Six: Separately, and alternatively, the Magistrate erred in convicting the appellant of Sequence Two of the amended Court Attendance Notice. 1. The Magistrate asked the wrong question, and misconstrued the offence the prosecution was required to prove: 1. The Corporation alleged the Appellant had asserted to the Corporation in a number of different forms that NC, KG, and their daughter "moved in" to the property on 20 February 2015, and that the Appellant knew at the time the statements to be false because NC, KG and their daughter "had been occupants of the Property since at least 10 December 2013": Amended Court Attendance Notice. 2. Making the "false statement" in the various forms underpinned each of the seven sequences in the Amended Court Attendance Notice. Asserting as a fundamental premise to each sequence that the statement NC and KG were moved in on 20 February 2015 was false, the Corporation had to establish beyond reasonable doubt that NC and KG had not moved in on that date, or at least that the Corporation exclude as a reasonable hypothesis that NC and KG were not living at the property up to February 2015. 3. The circumstances in which the alleged false statements were made were important but not properly considered by the Magistrate. 4. The Appellant was not asked in any of the forms she completed in March 2015 to provide details of all occupants of the premises in or since December 2013, or for any other month, or for any other period between December 2013 and February 2015. [10] 5. In the March 2015 Residential Subsidy Application the Appellant answered the question "What has changed?". Without more this was a matter for individual interpretation, but presumably asked the person completing the form to advise Housing NSW of any changes to circumstances since the last completed Rent Subsidy Application form. In the Appellant's case, it was asking her what has changed since her last Rent Subsidy Application in December 2014. It did not ask for a detailed history of occupants from a point in the distant past. [11] 6. Despite how the charges were pleaded in the Amended Court Attendance Notice, the Magistrate misunderstood what the Corporation needed to establish, and posed a lesser standard. His Honour said in the judgement at Transcript 4 December 2020 page 4.31 that the Prosecution must prove that NC and KG were occupants of the property at a time prior to 20 February 2015 and that by misrepresenting that date, each of them claimed benefits or hid information relevant to the consideration of entitlements. 7. Hiding information was explicit in the particular for Sequences Two and Seven of the Amended Court Attendance Notice. However, there was no proper basis for the accusation that the Appellant hid information when that information was not sought in the particular forms the subject of the charges brought under s 69(2) of the Act. The Appellant was not charged with failing to notify of a change in circumstances, for which s 69A [12] provides, and there is no criminal offence of failing to comply with disclosure obligations under the Residential Tenancy Agreement, even if there was a breach, which is denied. 8. The Magistrate's reasons at Transcript 4 December 2020 page 24.44 rejected the defence submission that the proceedings must fail unless the Corporation proved NC and KG occupied the premises continuously from December 2013 to February 2015. The Magistrate rejected the submission on the observation that "the parties" as of 20 February 2015 were under an obligation to, … declare whatever periods, broken or unbroken, they were occupants of the premises so that her right to the rebate could be assessed and the claim for occupancy by NC and KG could also be investigated. 1. Whatever obligations the Appellant owed the Corporation under the Act or pursuant to the Residential Tenancy Agreement, the question for the Magistrate was whether the Corporation established beyond reasonable doubt that the Appellant made a false statement, or provided a fraudulent device, or aided and abetted an offence under s 69 the Act. Instead the Magistrate asked the wrong question and at transcript 4 December 2020 page 25.7 set a lower bar for the Corporation to overcome, namely, whether NC and KG had lived at the property for the, … vast majority of the time between December 13 and February 15 … 1. The Magistrate posed the wrong question to determine whether the Appellant's statement was false – a person could live at a property for 6 months, then move out for a month, then move in the following month. This was not the prosecution case which asserted that NC and KG were, … occupants of the property since at least 10 December 2013 … 1. The Magistrate misunderstood what was necessary for the Appellant's statement to have been false and to have constituted a fraudulent device. His Honour misconstrued the offences the prosecution was required to prove. 2. The Appellant's statements in the March 2015 letter, the March 2015 Residential Subsidy Applicational and the Additional Occupants Form could only be false if: 1. NC and KG had never moved into the property; or 2. NC and KG had moved in (adopting the understanding of that expressions referred to above) prior to 20 February 2015 and had not moved out prior to 20 February 2015. 1. It appears to have been common ground and accepted by the Corporation in re-assessing the rebate as it did in 2015 that NC and KG had moved into the property, at least by 20 February 2015. Therefore the issue was whether they had moved in on an earlier date, and never moved out, so that the statement that they moved in on 20 February 2015 was false. 1. The Corporation failed to exclude as a reasonable possibility that NC and KG had lived at the property for only short, fixed periods of time with no intention of remaining on a permanent basis. The prosecution case was that NC and KG were occupants from at least 10 December 2013. 2. For those reasons, the Magistrate erred in concluding that the Corporation had established, beyond a reasonable doubt, that the relevant statements made by the Appellant were false as an element of the charge under s 69(1). 3. For the same reasons, the Magistrate erred in concluding that the Corporation had proved beyond a reasonable doubt that the Appellant had provided a fraudulent device to the Corporation under s 69(2), and that she had aided or abetted the commission of an offence under s 69(3). 4. Specifically, on the question of the s 69(2) charges (Sequences Two and Seven), the March 2015 Letter, March 2015 Residential Subsidy Application and Additional Occupants Form were said to constitute a fraudulent device essentially because the Appellant had failed to state certain things in those forms, such as that NC and KG were occupants of the property since at least 10 December 2013, had failed to obtain permission for them to be occupants and had failed to notify of their income. The Magistrate failed to grapple with the critical question of the Appellant's obligation to disclose these matters in the March 2015 Letter, March 2015 Residential Subsidy Application or Additional Occupants Form. The Appellant was not required by the terms of any of those forms to disclose a history of occupancy. The context in which the information in those forms was provided was relevant to whether those forms constituted a fraudulent device under s 69(2). 5. On the other hand, if the Magistrate did not err in concluding that the Corporation had proved that the Appellant's statements were false, or that she provided a fraudulent device, his Honour erred in accepting that the Corporation had established beyond reasonable doubt on the evidence that the Appellant, in making the false statement, or providing the fraudulent device, did so with the intention of or for the purpose of obtaining or claiming a benefit. 6. The Corporation needed to establish as elements of the offences: 1. For the purposes of s 69(1) that the statement was made wilfully and that it was made, … to obtain or claim from the Corporation accommodation or a rental rebate, or any other advantage or concession or, …to deceive any officer or employee of the Corporation in relation to obtaining accommodation or a rental rebate, or any other advantage or concession from the Corporation. 1. For the purposes of s 69(2) that a fraudulent device was made, to obtain or claim from the Corporation accommodation or any rental rebate or any other advantage or concession. 1. For the purposes of s 69(3) that the Appellant "aided or abetted" the commission of an offence under s 69. 1. On a proper construction of s 69, and the Act as a whole, the Appellant's statement in the March 2015 Letter, the March 2015 Residential Subsidy Application, and the Additional Occupants Form that NC and KG had moved in on 20 February 2015 – even if false – cannot have constituted a statement, … to obtain or claim from the Corporation accommodation or a rental rebate, or any other advantage or concession … for the purposes of s 69(1)(a) and 69(1)(b) and s 69(2) of the Act: 1. First, a breach of the Residential Tenancy Agreement creates a civil liability; it is not a crime to fail to pay rent. 2. Properly construed, s 69 in effect creates offences in relation to "obtaining or claiming" certain benefits from the Corporation. The provision is necessarily forward-looking. One cannot make a false statement to obtain or claim a benefit that one is already receiving and is entitled to receive. 3. The Appellant as of March 2015 was a tenant of Housing NSW under the Residential Tenancies Act 2010. As at March 2015, the Corporation had been offering, and the Appellant had been accepting, a rental rebate for her rent under the Residential Tenancy Agreement, that rental rebate effected a variation to the residential tenancy agreement. New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 4. The rental rebate was not conditional on the Appellant having complied with any obligations under the Act to provide accurate statements of her income and the income of persons residing with her: Diab ibid [39]-[40] (Macfarlan JA, with whom Beazley P agreed). 5. The Corporation had power to vary or cancel a rebate: s 57 of the Act; and the Corporation had express powers to recover amounts consequent upon such a variation or cancellation: s 57(4). If there was an arrears in rent arising from an anomaly from advice regarding occupants, it would and in this case did give rise to a civil procedure whereby the appellant was required to repay some rebate she had received, controlled under Part 7 of the Act. [13] 1. Here, the Appellant's statement to the Corporation alleged to be false was to advise of occupants at the property from 20 February 2015, as may reduce the appellant's entitlement to the level of rebate she had been receiving. However, the Corporation's concern was that the Appellant's statement suggested NC and KG were occupants previously, and therefore the Corporation suspected it had in the past been offering the Appellant greater rebate than her entitlement on the hypothesis that NC and KG were living with her. The Corporation's concern was that in making the statements the Appellant omitted what its officers suspected that she had additional income-earners residing with her which, if their occupation of the premises had been disclosed, might have disentitled the Appellant to past-claimed rebates. 2. However, there was no offence in s 69 for a failure to provide information. The Appellant was not charged with an offence under s 69A in failing to notify of a change in circumstances. The Appellant was not charged with having made earlier misstatements or misrepresentations to the Corporation upon which basis it had offered her rental rebates which she had accepted. [14] To the contrary, the Corporation approached the matter in reverse, relying on a statement made in March 2015 to infer that the earlier rebates had been offered and accepted on a false basis. 3. In short, the statements made by the Appellant in March 2015 cannot have been done with the intention or purpose of obtaining or claiming a benefit. Even on the Corporation's case, any benefit the Appellant had received from allegedly withholding information from the Corporation about the occupants at the property was a matter of history. There was no offence in s 69 for failing to disclose information, or for withholding such information, and the Appellant was not changed with any such offence. The Appellant was not asked in any of the forms she completed in March 2015 to disclose the occupancy history of the property. 4. The Magistrate erred in concluding the offences were made out. Further, overlooked by the Magistrate, but critical to the intent or purpose of the provision of the forms, was that it was the officers of the Corporation who orchestrated (sic) the provision of the forms in March 2015. 5. Margaret Smith directed the Appellant to update the Corporation on her circumstances, after she was directed to do so by Mr Chouman. There was no basis for the court to conclude, on the evidence, that the Appellant had any intent to obtain or claim a benefit in providing the forms, when already at that time in receipt of a rental rebate, with no obligation to provide a new Rent (sic) Subsidy Form to the Corporation. 6. Providing the March 2015 Letter and the March 2015 Residential Subsidy Application and the Additional Occupants Form, the Appellant disclosed new occupancy at the property which had the effect of reducing her rebate. The Magistrate was in error in concluding that the Appellant, in providing the information in the respective forms, did so with any intent or purpose to obtain a benefit. 7. The Magistrate erred in convicting the Appellant on all charges; it was not open on the evidence before the Court for the Magistrate reasonably to conclude that NC and KG resided at the property continuously from at least December 2013 until February 2015. 8. The Magistrate recognised the prosecution case was circumstantial: Transcript 4 December 2020 pages 4.44-55 9. The High Court summarised the correct approach to be taken in a circumstantial evidence case in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 (French CJ, Kiefel, Bell, Keane, and Gordon JJ): [46] The prosecution case against the respondent was circumstantial. The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen, and Mason JJ said: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen." [47] For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal. 1. All evidence and all of the circumstances established by the evidence must be considered in deciding whether in a circumstantial case there is an inference consistent with innocence. They are not considered in isolation. The evidence must be considered as whole and not piecemeal. 2. For an inference to be reasonable it must rest upon something more than mere conjecture. Although the Appellant bore no onus to disprove the charges, she advanced evidence that raised a reasonable and rational hypothesis consistent with innocence. The evidence adduced by the defence plausibly suggested that NC and KG had not been residing at the property on an ongoing and indefinite basis, whereupon the Appellant did not make false statements to the Corporation or give a fraudulent device to deceive the Corporation and did not aid and abet NC's and KG's contraventions when she said they moved in on 20 February 2015. 3. The evidence gave rise to a number of reasonable hypotheses consistent with innocence, which the Corporation failed to meet: 1. First, there was evidence of property inspections conducted by Margaret Smith that did not reveal that any person was living at the premises not permitted under the lease to live there: 1. She conducted inspections on several occasions including 22 February 2013, 17 July 2014, 29 September 2015, 29 September 2016, and in December 2014. Significantly, Margaret Smith made no observation of NC or KG living at the premises on 17 July 2014 and did not record any concern of having seen "evidence" of NC and KG, or anyone else aside from the Appellant and her daughter, living at the property. 2. The Magistrate held by reference principally to the circumstantial evidence of the Address Documents that the couple were living there. 3. The Appellant's oral evidence was that on 17 July 2014, only she and her daughter were living at the property: Transcript, 2 April 2019, pages 71.48, and 86. 1. Secondly, in relation to Margaret Smith's inspection in December 2014, 1. She did not witness either NC or KG at the property. [15] 2. Her evidence was that she saw, … the garage was made up as a bedroom, so there was bedding, personal belongings, baby's change table, baby's products, baby's nappies, wipes, baby's toys … the kind of things one would expect in a grandmother 's house whose infant granddaughter visited and stayed occasionally, and whose son and daughter in law visited and stayed occasionally. 1. Evidence of the presence of other occupiers Margaret Smith viewed in December 2014 for the first time did not prove that NC and KG were residing at the property on an ongoing and indefinite basis between December 2013 and March 2015. 2. In October 2014 Margaret Smith had observed cars outside the property but did not inspect the property. This was not evidence that anyone else was residing at the property on an indefinite and ongoing basis. 1. Thirdly, the Appellant's evidence about the bed in the garage was that Margaret Smith instructed her, it has to be gone before I come back for the next inspection... 1. and that the Appellant said, [16] … being on my own and not having a lot of help, I managed to get some friends to help me get rid of the bed. 1. This evidence was inconsistent with NC and KG having been residing on an ongoing and indefinite basis throughout 2014 and until March 2015. 2. Fourthly, the Appellant's evidence was that her children and grandchildren would visit "on and off" during the period from August 2013 to December 2014. [17] 1. The Appellant's evidence was NC and KG would stay sometimes for weeks at a time but would then move out and return. [18] 2. Her evidence was that the couple lived with her at the property for about three and a half weeks around the time her granddaughter was born, as KG had transferred to a bigger hospital because of complications with her pregnancy. [19] 3. Her evidence was that afterward NC and KG returned to Harrington, near Taree. 1. Fifthly, the Appellant's evidence was that in the period leading up to the inclusion of NC and KG on the lease, they lived at different addresses, including with her friend Jenny in Blue Haven, and with NC's brother in Wyee Point, and that during this period although she was not entirely clear of the exact period that NC and KG had "unstable" accommodation. [20] 2. Sixthly, regarding use by NC and KG of the property address when dealing with various institutions, 1. Prosecution witness Mr Attard called in relation St George Bank records accepted under cross-examination that the bank records simply show addresses where the bank statements are sent, and that it was not necessary for one to prove they lived there. 2. Evidence from Mr McMahon of the Commonwealth Bank that the address shown on bank records from the Commonwealth Bank could be a mailing address rather than a residential address. He could not say that the account holder KG actually conducted the transactions shown in the account. 3. The Appellant in evidence confirmed what she told Mr Chouman in interview that NC and KG specified the property as their address to ensure NC could see the neurosurgeon in the area. 1. In short, there was evidence before the Court that reasonably explained NC's and KG's use of the Appellant's address. The prosecution needed to establish that such explanations were not available not simply that such explanations were not more likely than the prosecution case theory. 2. Seventhly, in relation to the evidence of banking transactions: 1. There was evidence from Ms Willingham, the Fraud and Security Team Leader at the Greater Bank, that it was not an unknown practice that people give their bank cards to other people to use. 2. The defence did not bear the onus of proving that the transactions were by NC or KG. 3. The Corporation needed to exclude the possibility that was raised by the evidence that the bank cards might have been used by others. 1. Eighthly, in evidence neighbour Ms Jootsen said she did not see NC or KG at the property: Transcript 4 December 2020 pages 15.46 and 93. The Magistrate when assessing the circumstantial evidence, specifically the Bank Documents, did not collate all transactions, yet concluded that the figures produced were "sufficient and reliable to show a trend and pattern of the location and timing of the transactions": Transcript 4 December 2020 page 11.2: 1. At Transcript 4 December 2020 page 11.7 the Magistrate observed of the analysis conducted of approximately 789 days covering the identified bank statements, that transactions on 702 of those days occurred in the, … LC suburb Gorokan-Central Coast Area … 1. Transactions on 35 of those days occurred in the, … Taree Harrington Area … 1. Transactions on 27 of those days occurred in the Seven Hills Penrith-Werrington-St Mary's Area. 1. All that the evidence could indicate even accepting that NC or KG were the users of the relevant bank cards as shown in the Bank Records, was that NC and KG had made transactions on 702 of 789 days at various locations within the general area of Blue Haven and surrounding suburbs. The evidence, at its highest, did not prove the family were living "permanently" at the property, whatever that might be taken to mean, or that they were occupants at the property for the "vast majority" of the period from December 2013 to February 2015 as the Magistrate found, or that the Appellant made a false statement when she said in the relevant forms that the family "moved in" in February 2015. 2. The Corporation needed to exclude all reasonable hypotheses inconsistent with guilt. 3. The Magistrate had no clear (sic) evidence as to where NC and KG had been living in the period leading up to February 2015 which meant the Magistrate could not reasonably, applying the criminal standard of proof, holding the Corporation to its onus, conclude that the transactions conducted in the "Central coast area" allowed the inference that at all times when those transactions were occurring, the family were living at the property, especially considering that the evidence allowed a reasonable and plausible hypothesis that during late 2013 to early 2014 NC and KG had no fixed abode, and moved around including to live with the Appellant for weeks at a time. 4. It was not open for his Honour to conclude, on the evidence, at Transcript 4 December 2020 page 15.1, that not only were NC and KG living in the "Central Coast area" in that period, which might have been an available finding, but that the "only rational conclusion" is that they were residing at the property from, … at least December 2013 (and in all likelihood before that date) until March 2015" [21] . 1. The Appellant submitted that there was an unreasoned leap between his Honour's conclusion at Transcript 4 December 2020 page 15.1 and his conclusion at page 15.6. The circumstantial evidence only suggested they were at the property during that period, with a plethora of evidence inconsistent with that conclusion. The Corporation was required to exclude the defence's hypotheses consistent with innocence. The Magistrate erred in finding, or proceeding on the basis that, all such hypotheses as advanced (taken together were excluded. 2. The Magistrate made errors in applying the onus of proof: 1. As an adjunct to the above ground, the Magistrate in his Honour's approach to the evidence in effect required the Appellant to prove her innocence, manifested in a number of places in his Honour's reasons for judgement 1. First, addressing the prosecution evidence of the addresses used by NC and KG in 2013 and 2014, his Honour referred to the absence of documentary evidence disclosing the address at Potoroo Drive, Taree, … which is the address that NC and KG represented they had moved from immediately prior to occupying the premises in February 2015. [22] 1. The defence did not need to adduce any "documentary evidence" to prove NC and KG had been living at Taree prior to moving into the property in February 2015. The absence of that evidence was not a reason to doubt the veracity of the defence assertion made by the defence. 2. Neither did the absence of that evidence bolster the circumstantial case of the prosecution, noting the prosecution at all times bore the onus. 1. Secondly, the Magistrate rejected the reasonable hypothesis advanced by the defence that the evidence showing NC's and KG's address as the property was a mailing address because, … there was no evidence from any source that would indicate an agreement between LC and NC and KG to use the LC address as a mailing address. [23] and that, …one would have expected LC to be quite explicit about the amount of mail she had received and passed on. [24] 1. Although his Honour identified the evidential basis for any reasonable hypothesis consistent with innocence advanced by the defence, he rejected those hypotheses on the basis that he expected or required the defence to come to proof. 2. That set the bar too high. 3. The absence of evidence of an agreement between the Appellant and NC and KG for them to use the property as a mailing address did not render the hypothesis unreasonable. It was both reasonable and rational. 4. For the Magistrate to expect that the Appellant would have been "explicit" about the amount of mail she had received and passed on was an improper basis to conclude that the hypothesis was unreasonable. 5. The Appellant chose to give evidence in the proceedings; this did not shift the onus or require the Appellant to establish facts inconsistent with guilt. 1. Thirdly, the reasoning at Transcript 4 December 2020 page 12.45-13.3 tends to shift the onus and is illogical. His Honour was critical of the Appellant for failing account for any initial memory problems in relation to the various addresses where NC and KG had lived in the two years to February 2015 by making inquiries. He was critical of the Appellant for offering evidence of one such location where the family lived that she had not mentioned in her interview with Mr Chouman. In this reasoning, the Magistrate focussed upon the Appellant's "vague and imprecise" evidence in her attempts to disprove the prosecution case. 2. Fourthly, at Transcript 4 December 2020 page 13.24-28, with the accompanying incantation that the "prosecution bears the onus of proof" the Magistrate concluded, … however … there is no documentary evidence that supports any address other than the LC address. 1. This notwithstanding that (as the Magistrate noted at Transcript 4 December 2020 page 12.6) NC and KG did not give evidence in the proceeding and were not required. 2. The Magistrate did not explain why it was a matter bearing adversely on the Appellant that she was unable to provide the addresses of where her son and daughter in law had lived. Put another way, her inability to volunteer that evidence in her defence was not a reason to disbelieve her evidence in any respect. It was, and remained at all times, for the prosecution to prove the Appellant's guilt, which in this case required it to prove, beyond reasonable doubt, that the statement that NC and KG moved into the property on 20 February 2015 was false. 3. The same criticism is made of his Honour's findings at Transcript on 04 December 2020 13.33 that, … LC could not provide any clarity of when they may have lived her son despite saying that she used to visit there … 1. was a reason not to accept her evidence that NC and KG were living with her son for a period at Wyee Point. 2. His Honour did not consider whether the prosecution had discounted that evidence as a reasonable possibility. 3. Wyee Point is 10 kilometres from Lake Haven. 1. Fourthly (sic), at Transcript 4 December 2020 page 25.19, with reference to the prosecution's onus, the Magistrate held, … once LC gave evidence one would have expected her to give clear, precise and consistent evidence as to the date and the circumstances of them moving in. 1. The Appellant had no onus to disprove the prosecution case, or to prove that NC and KG had lived in other locations at different times. 1. Separately, and alternatively, the learned Magistrate erred in convicting the Appellant of Sequence Four: 1. The prosecution asserted that the Appellant had wilfully provided the Additional Occupant Form to, … deceive the officer or employee of the Corporation who should consider the Additional Occupant Form in relation to obtaining a rent rebate or rent subsidy from the Corporation for the [Appellant]. 1. The Magistrate found this sequence proved at Transcript 4 December 2020 pages 28.43-29.9. 2. His Honour did not engage with the statutory language, but concluded that the Appellant, … knew that the statements [in the Additional Occupants Form] were to be used by the LHC in the assessment of her application for a rebate. 1. His Honour made no finding that the Appellant deceived, or set out to deceive, any "officer or employee" of the Corporation. The Corporation itself cannot employ any staff: s 7(3) of the Act. The Amended Court Attendance Notice did not identify with any precision which "officer" of the Corporation the Appellant was alleged to have set out to deceive. [25] 2. It was at the instigation of the Corporation that the Appellant submitted the relevant documents to Family and Community Services in March 2015, including the Additional Occupants Form. [26] 1. For these reasons, notwithstanding that Sequence Four should have been rejected along with the other charges for the reasons set out above, the Magistrate erred in convicting the Appellant of Sequence 4. 2. The Appellant submits that the appeals should be allowed, with costs. 3. I do not accept these submissions, largely for the reasons articulated by the Respondent which I am about to consider. I do not accept the argument that the Magistrate erred in the analysis of the evidence or that he reversed the onus of proof to the Appellant upon the absence of evidence of facts hypothesised as explanations inconsistent with the conclusions drawn leading the findings that the offences were proven. Upon my analysis of the evidence accepted by the Magistrate, which I find was appropriate, the elements of each of the offences were established and there can be no other conclusion reached from the circumstances presented but that the Appellant committed these offences, supported by what I accept to be admissions she made in the course of the investigation. The Respondent's Written Contentions 1. The Respondent submitted that each ground of appeal should be dismissed for the reasons set out in response to the Appellant's written submissions discussed above, using the same headings as appear in the Appellant's Submissions. Where the outline of submissions did not expressly or directly refer to a contention in the Appellant's Submissions does not mean that the contention is accepted by the Respondent. Introduction 1. On 5 March 2021, the Appellant was convicted and sentenced. The submissions include a description of the outcome of the sentence proceedings, but I need not refer to them for present purposes. 2. The Respondent notes that there is no challenge in these appeals in relation to the convictions of NC and KG This is relevant to Sequences Five and Six by which the Appellant was charged with being complicit in charges of which NC and KG were each found guilty. The comment has some merit in arguendo but I approach the matter in terms that the Appellant does not wish to agitate against the findings of guilt against NC and KG but nonetheless argues that she ought not to have been found to have committed the offences charged in Sequences Five and Six for the reasons argued on her behalf. Nonetheless, the balance of the outline of submissions addresses the Appellant's grounds of appeal upon the assumption that the Appellant challenges occupation by NC, KG and GC of the Property and false statements of which NC and KG were convicted as having occurred. 3. Otherwise, if my approach is incorrect, that would dispose of those portions of the appeals where the Appellant disputes that NC, KG and GC moved into the Property in December 2013 and did not move out until April 2015. Relevant background facts 1. The background factual findings of the Magistrate are set out in the judgement of 4 December 2020. 2. The background and factual matters which arise from the evidence were summarised in the Prosecutor's Chronology Submissions of 2 July 2019 used in closing submissions at first instance. The Chronology was also incorporated into the Prosecution Written Outline of Closing Submissions of 16 May 2020. Considering the matters set out in the Chronology and the Corporation's Closing Submissions, the Corporation submits that the Magistrate's factual findings in the December 2020 Reasons were appropriate and open. 3. I agree. 4. Para [7] of the Appellant's Submissions it states, Having been approved for a rent subsidy, the Appellant was entitled to the subsidy on an ongoing basis. 1. The Corporation submits that sentence is incorrect since rent rebates (also known as rent subsidies) granted under Part 7 of the Act are discretionary in accordance with the terms of Part 7 and the policies of the Corporation. [27] Rent subsidies are reassessed by the Corporation often on a 6 monthly basis or following a change in market rent values of the rented premises or when a new disclosure of information is made by a tenant or occupants of the tenancy. Rent rebates can also be reassessed if there is material non-disclosure of information about the household occupants of a corporation property or rent subsidy fraud is detected and proven. The assessments are based on information previously provided by a tenant or Centrelink information obtained under the income details from Centrelink and new disclosures of information for the tenancy. 2. Para [9] of the Appellant's Submissions refers to the 8 August 2013 letter from Family and Community Services to the Appellant informing her of an extension to her residential tenancy agreement for a further fixed term period of 5 years [Trial exhibit 40, Appeal exhibit 27]. The letter extended the tenancy period from 5 August 2013 to 5 August 2018. The Appellant's Submissions incorrectly refer to the 5 years commencing on 5 August 2018 instead of 5 August 2013 – this is a typographical error in the Appellant's Submissions. I noted this anomaly when dealing with the Appellant's written contentions. 3. Para [16] of the Appellant's Submissions refers to the letter from Mr Chouman (Advocate Investigator of Family and Community Services Housing NSW Tenant Fraud Unit) to the Appellant dated 13 January 2015 [Trial exhibit 4, Appeal exhibit 4] and submits that the letter suggested she may be claiming a subsidy to which she was not entitled and alleged that she may have not declared additional occupants at her residence. The Corporation submits, that this is overly reductive of what the letter contained: 1. The letter informed the Appellant of the nature of the allegations made against her and that the Family and Community Services Housing NSW Tenant Fraud Unit was investigating alleged breaches of sections 69A, 69(1) and 69(2) of the Act. 2. The letter quoted from sections 69A, 69(1) and 69(2) of the Act and invited the Appellant to participate in an interview to discuss the allegations referred to in the letter. 3. The letter stated, Housing NSW is authorised to undertake an investigation of these matters, pursuant to Section 58 of the Housing Act 2001 (NSW) and thereby set out the asserted jurisdictional basis for the investigation. 1. The letter stated that as a result of the investigation documents had been obtained that appeared to substantiate the allegations and that a copy of the documents would be provided to the Appellant at the time of the interview. 2. The letter stated that the Appellant was welcome to bring an advocate or a friend to the interview, that the interview would be electronically recorded, and a copy of the recording would be provided to her if she participated in the interview. 3. Importantly, the letter said in bold font, You have the right not to say or do anything but that anything you say or do may be used in evidence. and If you choose not to attend the interview, Housing NSW will continue to investigate this matter without the benefit of the information you may otherwise have provided and may take action to terminate your rental subsidies. 1. The letter concluded giving the details of three pro bono organisations the Appellant could approach if she wanted independent assistance or advice in the matter. 2. Para [26] of the Appellant's Submissions refers to Mr Chouman's letter to the Appellant of 1 April 2015. Mr Chouman's oral evidence was that he sent that letter after the Appellant telephoned him and said she wanted to reschedule the date for the interview proposed by Mr Chouman's letter dated 13 January 2015. Mr Chouman gave evidence that he sent the letter of 1 April 2015 to confirm the new date of the interview requested by the Appellant. [28] Accordingly, the words in the 1 April 2015 letter confirming an appointment for an interview "regarding outstanding matters under investigation by the Tenant Fraud Unit" is clearly a reference back to the subject matter of the 13 January 2015 letter which invited the Appellant to participate in an interview. 1. Para [27] of the Appellant's Submissions refers to NCAT proceedings commenced by Family and Community Services against the Appellant in April 2015. In respect of those proceedings: 1. On 7 April 2015, following the Corporation giving permission for NC, KG and GC to live in the Property, Family and Community Services staff, but not the Tenant Fraud Unit, wrote to the Appellant about the new increased rent and reduced rent rebate to be paid by the Appellant from 23 February 2015 – that is from the date of approval for NC, KG and GC to be additional occupants of the property. The letter is at [Trial exhibit 20, Appeal exhibit 16]. 2. The reduced rent rebate was based on inter alia the declared income of NC and KG which was declared to be Centrelink benefits only and made no mention of NC's employment. The calculation did not go back to December 2013 and was on the assumption the information declared to Family and Community Services about NC, KG and GC was correct. The letter included: Your new rent is $271.05 pw effective from 23 February 2015 which has placed an arrears on your account, currently your account is $1251.70 in arrears. 1. The letter did not refer to the ongoing fraud investigation or the upcoming interview with Mr Chouman. That was a separate matter. 1. On 27 April 2015, Housing NSW filed in NCAT its Application Form (Trial exhibit 66), effectively the initiating process for that proceeding, and set out the claim made by Family and Community services and relief sought in NCAT, an order for payment of the rent arrears from 23 February 2015 onwards in the then amount of $1,272.37, and an order for specific performance that the Appellant comply with the Residential Tenancy Agreement and pay rent when it falls due. 2. The Corporation submits that on any objective reading of the Application Form (considering the letter of 7 April 2015) it did not relate to the events before 23 February 2015 or the subject matter of Mr Chouman's investigation. 3. On 27 April 2015, NCAT sent a notice to Housing NSW and the Appellant indicating that the NCAT proceeding was listed for hearing on 13 May 2015 at 2.15pm in Gosford. 4. Trial exhibit 39, Appeal exhibit 26, is an internal undated Housing NSW action sheet regarding the NCAT proceeding. This was not a document provided to the Appellant before commencement of the prosecution or conclusion of the NCAT proceeding. The document describes the reason for the action as being "Rent arrears." Question 9 refers to special circumstances that should be considered as being, Please note TFU are involved in this case see HOG14/88164. 1. On 13 May 2015, the NCAT proceedings were settled by the entering of consent orders in NCAT for the payment of $1,115.02, by instalments, for rent owed under the terms of the residential tenancy agreement relating to the period from 11 March 2015 to 13 May 2015. [29] 2. The settlement and orders on 13 May 2015 for the NCAT proceedings occurred 13 days after the Appellant attended the in-person formal interview with Mr Chouman on 30 April 2015. The Electronically Recorded Interview is Trial exhibit 23, Appeal exhibit 17. The appellate standard 1. The Respondent agrees with paras [31]-[36] of the Appellant's Submissions as to the legal principles to be applied in this appeal. Grounds of Appeal Ground 1: The learned Magistrate erred in failing to dismiss the prosecution on the basis that the Corporation was not authorised to bring the prosecution in the manner it did Non-compliance by the Corporation with the Criminal Procedure Act 1986 in commencing the prosecution 1. At para [38] of her submissions the Appellant writes the Magistrate erred failing to find that the Corporation lacked authority to prosecute and contends the Magistrate thereupon erred deciding not to dismiss the prosecution. 2. The Corporation submits the Trial Magistrate correctly reasoned in the decision on 14 June 2017 that: [30] 1. The prosecution was instituted and continued in the name of the Corporation and therefore by the Corporation. 2. In any event, Mr Paul Vevers, as a Deputy Secretary of Family and Community Services, held express delegated authority to approve the prosecution of the Appellant and did approve it. 3. Even if (1) and (2) above are both incorrect, the prosecution was correctly instituted by the Corporation against the Appellant pursuant to the Carltona principle of agency authority [31] . 1. I accept this submission. Background 1. The proceedings were commenced by Court Attendance Notice filed in the Local Court of NSW on 4 September 2015. 2. In 2015, section 74 of the Act stated: 74 Proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be disposed of summarily before the Local Court. (2) A prosecution or proceeding in respect of an offence under this Act may only be instituted by or on behalf of the Corporation. (Emphasis added) 1. Sections 6 and 7 stated: 6 Establishment of New South Wales Land and Housing Corporation (1) There is constituted by this Act a body corporate with the corporate name of the New South Wales Land and Housing Corporation. (2) The affairs of the Corporation are to be managed by the Director-General. (3) Any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation. (4) The Corporation is, for the purposes of any Act, a statutory body representing the Crown. (5) The Corporation is subject to the direction and control of the Minister. (6) (Repealed) (7) The Corporation may exercise any of its functions, and may otherwise act, in the name of the Department. (8) The Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of this Act. (Emphasis added) 7 Functions of Corporation generally (1) The Corporation: (a) has the functions conferred on it by or under this or any other Act and may do such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions, and (b) has such other functions as are necessary to implement any Commonwealth State agreement, in so far as it relates to housing. (2) The Corporation is to manage financial risks associated with its activities. (3) The Corporation cannot employ any staff. Note—Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the Corporation to exercise its functions. (emphasis added) 1. Section 15 stated: 15 Delegations (1) The Corporation may delegate to a person the exercise of any of its functions, other than this power of delegation. (1A) A delegate of the Corporation may sub-delegate to a person any function delegated by the Corporation if the delegate is authorised to do so by the Corporation. (2) The Director-General may delegate to an officer of the Department, or to the Corporation, the exercise of any of the Director-General's functions under this Act (including any function delegated to the Director-General under this section), other than this power of delegation. (2A) A delegate of the Director-General may sub-delegate to an officer of the Department any function delegated by the Director-General if the delegate is authorised to do so by the Director-General. … (emphasis added) 1. Whilst the Corporation cannot employ staff, the staff of Family and Community Services are employed and conduct the activities of the Corporation for the Corporation. This is in part reflected in sections 6(7) and 6(8) of the Act. 2. It would be unworkable if the activities of the Corporation had to all be carried out by the Director-General of the relevant department. 3. I accept and agree with this proposition. 4. The Appellant's complaint at para [42] of her Submissions regarding a lack of evidence or explanation as to the mechanism by which public servants employed within Family and Community Services were deemed officers of the Corporation in the fulfilment of the Corporation's functions is misconceived. It overlooks the words in sections 6 and 7 Housing Act referred to during the trial at various times. [32] 5. Further, the first two pages of each delegation in evidence and Schedule A to those delegations each make clear that the officers of the Corporation are those persons in each class set out in Schedule A and those persons are also the employees of Family and Community Services that are the staff of the Corporation. 6. The Respondent's submissions later expand this further with respect to the express delegated authority of the Deputy Secretaries of Family and Community Services to approve the Appellant's prosecution. 7. The Court Attendance Notice and the Amended Court Attendance Notice named the prosecutor as the Corporation. 8. Nathan Cureton's affidavit affirmed 15 December 2016 [Appeal exhibit 37] at [24] to [38] and exhibit NC1 pages 74 to 78 evidence that: 1. On 25 August 2015, Family and Community Services Housing NSW solicitor, Mr Robin Fester, authored and endorsed a Briefing Note upon whether to commence criminal prosecution of the Appellant pursuant to ss 69(1) and 69(2) of the Act. 2. The Briefing Note discussed the background and current position of the allegations against the Appellant. 3. The Executive Summary on the first page of the Briefing Note referred to ss 69(1) and 69(2) of the Act, but the Recommendation on the second page was not so confined. It stated, The Deputy Secretary approve the commencement of the prosecution of [the Appellant]. 1. On 25 August 2015, Mr Chris Valacos, Director, Legal of Family and Community Services Housing NSW, approved the Recommendation in the Briefing Note; and on 2 September 2015, Mr Paul Vevers, the Deputy Secretary, Southern Cluster of Districts and Housing State-Wide Services, Family and Community Services Housing NSW, approved the Recommendation. 1. Throughout the prosecution and trial, the Corporation was represented by in-house solicitors of Family and Community Services Housing NSW and briefed counsel from the private bar, Mr A Di Francesco. 2. There is no evidence that any Minister of the Crown or Director-General objected to initiation or continuation of the prosecution. 3. As I commented when dealing with this part of the Appellant's submissions. I do not accept as correct that there was no evidence of how the decision to prosecute came about, but were it so, it does not follow that evidence was necessary other than to show that the institution of the prosecution was by or on behalf of the Corporation with reference to the legislative and administrative scheme whereby the functions of the Corporation, including for the prosecution of offences, are authorised by appointed delegates, in respect of all of which there is ample material. CAN Valid on Its Face 1. The proceedings were commenced by Court Attendance Notice Appellant filed in the Local Court on 4 September 2015. Considering s 74 of the Act in 2015, the Magistrate was correct to find at transcript 14 June 2017 pages 5.47-6.11 that the court attendance notice was instituted and continued by the Corporation, including that: 1. The proceedings were instituted in the name of the Corporation, which means they have been commenced by the Corporation. 2. Had they been brought in the name of some other person or entity, then inquiry might be necessary as to whether the person who brought the proceedings was doing so on behalf of the corporation, and if so, whether they had appropriate standing or authority to do so, as in cases such as Garrett v Freeman [2006] NSWCCA 278, Stucky v Iliff [1960] HCA 57 and Sasterawan v Morris [2007] NSWCCA 185. 3. In these circumstances no such inquiry is necessary because the proceedings were commenced in the name of the Corporation, not by somebody on their behalf. 1. Nonetheless, if the Court is to look behind the authority to use the name of the Corporation on the Court Attendance Notice, to ensure some person does not use the name of the Corporation without authority, the Corporation submits that the applicable authority in the present matter arises out of express delegated authority from the Director-General or implied agency under the Carltona principle: ibid. 2. I agree. CAN Valid in Accordance with Express Delegation 1. In respect of express delegation, the Corporation submits: 1. Nathan Cureton's affidavit of 1 March 2017 [Appeal exhibit 38] at [6] to [9] and annexures A to D evidenced that: 1. The opinions of Family and Community Services Housing NSW solicitors Jade Lee and Nathan Cureton expressed in emails of 9 November 2016 [Appeal exhibit 35], that there was no express delegation to approve a prosecution, was superseded by further investigations after those emails were written. 2. After 15 December 2016, further investigations were conducted into existing delegations whereby on 20 December 2016 Mr Cureton received an email from Ms Jemi Peng, Senior Project Officer at the in-house legal area of Family and Community Services, a copy of a delegation that Mr Cureton and Ms Lee had previously been unable to locate; and 3. Annexure A of Mr Cureton's affidavit of 1 March 2017 is a copy of the instrument of delegation by the Secretary of the Department of Family and Community Services (Mr Michael Coutts-Trotter) [the nomenclature "Director-General" having changed by that time to "Secretary"]. Ms Peng identified this delegation in her email of 20 December 2016. 1. The Delegation states on page two, This instrument takes effect from 14 August 2015. 1. By row 26.97 of Schedule AB of the Delegation, [33] the Secretary/Director-General of Family and Community Services delegated the power or function to approve the commencement of a prosecution for an offence under Part 10, Housing Act 2001 as amended from time to time under the Housing Act to classes 1 and 2 of the Delegation; and 2. By Schedule A of the Delegation, [34] classes of the Delegation were (class 1) the Secretary of Family and Community Services (that is Mr Coutts-Trotter himself) and (class 2) any Deputy Secretary of Family and Community Services. 1. Part 10 Housing Act includes s 69 pursuant to which the Appellant was charged. 2. Considering the above, the Magistrate was correct to find that on 2 September 2015, Paul Vevers, Deputy Secretary, Southern Cluster of Districts and Housing State-Wide Services, approved the Recommendation in the Briefing Note, as a person with delegated authority (that is a class 2 person under the Delegation) approved the Corporation instituting and running the prosecution. [35] 3. Paras [42]-[46] of the Appellant's Submissions appears to contend that the Delegation is of no effect and asserts that an earlier instrument, the Upton Delegation of 16 January 2015, applied in August and September 2015. The Corporation submits this is misconceived since: 1. In January 2015, Gabrielle Upton was the NSW Minister for Family and Community Services – the Upton Delegation delegates various functions, on behalf of the Minister, to various persons in Family and Community Services, including the Director-General of Family and Community Services and other classes of persons. 2. The Director-General under the Act in 2015 was the Secretary of Family and Community Services. 3. From 2 August 2013, by operation of the Public Sector Employment and Management (Housing) Order 2013 (NSW), the Director-General of Family and Community Services was the Director-General for the Corporation referred to in ss 6 and 7 Housing Act. 4. The title of the Family and Community Services department head was changed from "Director-General" to "Secretary" but both terms refer to the same position – this was a change in nomenclature only: See para [22] of Mr Cureton's affidavit of 15 December 2016. 5. Under sub sections 6(2) and 6(3) Housing Act any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation. 6. Under sub-sections 15(1) and 15(2), Housing Act, the Director-General/Secretary of Family and Community Services could delegate their functions to officers of Family and Community Services. The Delegation on its first and second page includes the important words: To the extent that I am able, I MICHAEL COUTTS-TROTTER, Secretary of the Department of Family and Community Services, NSW with power to delegate under: s 15(2) of the Housing Act … the Regulations and the general law of the State of New South Wales, delegate the exercise and performance of those functions, authorities, duties and powers in the attached Schedules … AB … to the employee or employees identified in Schedule A up to the general financial limits prescribed in the Schedule (unless otherwise expressly limited). The Schedules to this Instrument are: … Schedule AB: Delegations under the Housing Act 1. Schedule A to both the Delegation and the Upton Delegation, beneath the heading "Schedule A," set out the title of the schedule as "Categories of Delegated Officers." Each delegation clarified that the officers of the Corporation were at least each of the classes of persons set out in categories 1 to 10 of each Schedule A. The above quoted passages from the Delegation also reflect that the officers in Schedule A are also the employees of Family and Community Services who are the staff of the Corporation. 2. Mr Vevers was Deputy Secretary of Family and Community Services, the next level of responsibility below the Secretary, and as such an officer of Family and Community Services. 3. The Delegation is not a delegation by the Minister of Family and Community Services but is a delegation by the then Director-General/Secretary of Family and Community Services (Mr Coutts-Trotter the then Secretary of Family and Community Services). Accordingly, irrespective of the Upton Delegation, the Secretary of Family and Community Services delegated his statutory authority to do acts for the Corporation by the Delegation under the Housing Act as set out in the Delegation. 4. This ground of appeal is based on the incorrect premise that the powers of the Director-General / Secretary were only those delegated to him by the Minister of Family and Community Services under the Upton Delegation, and he could not delegate powers which had not been delegated to him by the Upton Delegation. The Upton Delegation does not mention the power to approve prosecutions. 5. This ground of appeal fails to consider the powers of the Director-General/Secretary afforded to that position by sections 6 and 7, Housing Act which the Director-General/Secretary was empowered to delegate under section 15. Those statutory powers were separate, and in addition to, powers of the Minister delegated to the Director-General / Secretary. 6. By section 6 of the Act the Director-General held statutory power to approve and cause the Corporation to conduct its functions, including prosecuting persons under Part 10. By section 15 the Director-General had the power to delegate functions under section 6 to staff in Family and Community Services, which the Director-General did by the Delegation. 7. Accordingly, approvals given by Mr Vevers (as Deputy Secretary of Family and Community Services) in August and September 2015 were by the Corporation and in accordance with the Delegation which was authorised by sections 6(2), 6(3) and 15, Housing Act. The approvals were pursuant to statutory powers of the Secretary under sections 6 and 7 of the Act which the Secretary had delegated to Deputy Secretaries. 8. As explained by White JA (with whom Beazley P & Meagher JA agreed) in Frangieh v Commissioner of Taxation [2018] NSWCA 337 at [148]: 148 Subject to contrary statutory provision, where a statute confers a power or authority on A and authorises A to delegate that power or authority to another, and the delegation is made, the delegate exercises personally the power or authority that has been conferred on him or her. The delegate does not act as agent for A because the effect of the delegation is that the power in question is exercised by the delegate and not by A (Blackpool Corporation v Locker [1948] 1 KB 349 at 365, 374; Re Reference Under Section 11 of Ombudsman Act 1976 (1979) 2 ALD 86 at 94; New South Wales Land and Housing Corporation v Navazi [2013] NSWCA 431 at [58]). … 1. I agree with this analysis. CAN Valid in Accordance with Carltona Principle 1. If there was no express delegation of power by the Minister or Director-General to approve prosecutions by the Corporation under Part 10 of the Act an implied delegation of authority might exist: Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. Application of this principle includes where senior public servants in whom powers vest, (for example, departmental secretaries), are entitled to authorise more junior employees to exercise those powers for and on their behalf without an express delegation. 2. Whether the Carltona principle applies circumstances is a matter of statutory interpretation. A power to authorise cannot be implied where parliament intends a power is to be exercised personally by the repository of the power, which in turn is determined by looking at the nature, scope, and purpose of the power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38 per Mason J. 3. Many routine administrative powers do not require personal exercise. Administrative necessity dictates that such decisions are made by persons other than the holder of the relevant statutory power. In contrast, the exercise of a power that may have serious or drastic consequences for an individual may require the personal attention of the holder of the statutory power. 4. Examples of where the Carltona principle does not give an implied delegation include where a Minister's power is by way of review of a decision of their departmental secretary or where a Minister's function under the legislative provision is a central feature of the statutory scheme: e.g., Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 369 per Deane J and Peko-Wallsend at 38 per Mason J. 5. In NSW Land and Housing Corporation v Navazi [2013] NSWCA 431, Leeming JA (with whom Basten and Barret JJA agreed) found that section 6(3), Housing Act is a statutory provision that expressly envisages the existence of the Carltona principle applying to actions of the Director-General/Secretary and the Corporation. In Navazi, Leeming JA decided that a decision to cancel a rental rebate under section 57 by a General Manager of Family and Community Services was a valid exercise of power done with the implied authority of the Director-General. 6. Leeming JA relevantly explained at [58]-[69]: 58 Delegation is distinct from agency: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [68]. The act of a delegate is the delegate's own act; that of an agent is treated in law as the act of the principal. It has long been accepted that a statutory regime may permit an agent's actions to be attributed to the principal. Commonly, in its application to power conferred in terms up on Ministers and senior officers, this is called the "Carltona principle", after Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. 59 Sections 6 and 15 of the Act maintain the distinction between delegation and agency. Section 6(3) of the Act expressly invokes agency … In contrast, s 15(1) confers a power of delegation upon the Corporation. 60 The presence of those separate provisions within the Act confirms that there can be no implication in this legislative regime from the existence of a power to delegate that the Carltona principle, based on agency, has been displaced. … s 6(3) removes the need to consider whether agency has been impliedly displaced in this statute. … 68 Nevertheless, taking Mr Navazi's argument at its highest, the absence of a delegation says nothing as to whether Ms Roil was acting on behalf of the Corporation with the authority of the Director-General, which is sufficient to engage s 6(3). In O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 CLR 1 at 20 and 30, Mason J referred to 'administrative necessity' and Wilson J referred to 'the necessity in modern government for the shared performance of duties short of delegation'. There is no sound reason to find that the Act required all cancellation decisions involving a backdating for a period in excess of six months to be undertaken by the Director-General; the material referred to above suggests that such decisions may be very numerous. The process by which Ms Morgan's report was reviewed and approved by two officers within the department before being presented to Ms Roil supports the inference that the exercise of power was reserved for the more senior officers and that Ms Roil, the General Manager for the Central Sydney Division, was authorised by the Director-General to exercise the power. 1. Basten JA further stated at [6]: 6 Where a statute confers power on a corporation or officer, without a power of delegation, the seniority of the officer, the nature of the power and the potential frequency for its application, may lead to the conclusion that Parliament did not intend that the power could only be exercised by the repository personally, but could act through agents, usually being other officers in the public service. This principle of statutory interpretation is known as the Carltona principle, by reference to Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 in which its operation was explained: see generally Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at [6.130]-[6.150]. Even where a specific power of delegation is contained within the relevant statute, the other considerations may nevertheless give rise to the inference that designated decision-makers could act through agents. The terms of s 6(3), providing that, quite apart from the power of delegation, the acts of the Director-General or a person acting with the authority of the Director-General are taken to have been done by the Corporation, constitute a statutory recognition and application of the Carltona principle. For the reasons given by Leeming JA, the respondent's contention to the contrary was not made good. 1. The Corporation submits that the Magistrate was correct to find that Mr Vevers, if not otherwise expressly authorised, held implied agency authority to approve the commencement of the prosecution on behalf of the Director-General/Secretary and the Corporation because: 1. Section 6(3) expressly provided for Carltona implied agency to apply to the functions of the Director-General and the Corporation. 2. The nature of the power to approve a prosecution under section 69 of was not of such a serious and fundamental nature that only the Director-General/Secretary should exercise it personally. For example, each charge under section 69 was a summary offence that carried a maximum penalty of only 3 months imprisonment, or 20 penalty units, or both – none of the offences were indictable offences. 3. The application of the power to approve prosecution under section 69 could be extensive considering the range of conduct that could fall within section 69 and extent of the fraud that might be detected from time to time; and, 4. The process whereby the decision whether to prosecute was reviewed and approved by two legal officers (Mr Fester and then Mr Valacos) within Family and Community Services before presentation to Mr Vevers, supports the proposition that the exercise of power was reserved for the more senior officers (in this case a Deputy Secretary reporting directly to the Director-General/Secretary of Family and Community Services) authorised by the Director-General to exercise the power. 1. The Corporation submits that the decision in NSW Land and Housing Corporation v Quinn (No. 2) [2018] NSWDC 161 referred to by the Appellant during the trial does not alter the above analysis. The proceedings in Quinn were civil proceeding for recovery of rental rebates claimed to have been cancelled under s 57 Housing Act. The documents recording the administrative cancellation decision were lost, and in their absence Judge Taylor found the Corporation failed to prove on the balance of probabilities that a decision to cancel rental rebates had been made at all, who had made the cancellation decision, if it had been made, or that the decision maker had authority to make the decision, if it had been made. His Honour found that the evidence suggested that the cancellation decision may have been made by a junior clerk and in any event that the cancellation sought recovery of rebates before 1 July 2001 which Judge Taylor found was not permitted under the Housing Act by operation of Part 7 in conjunction with the transitional provisions. 2. The facts and relevant time periods in Quinn are different to those in the present prosecution. The cancellation decisions in Quinn, if they occurred, were around November 2012 when the Director-General under the Housing Act had been the Director-General of the Department of Finance and Services rather than the Director-General of Family and Community Services. 3. Judge Taylor decided there was insufficient evidence to find that the cancellation decision had been made by a person vested with Carltona agency authority to act on behalf of the Corporation. 4. The Corporation submits that the facts of the present prosecution are analogous to those in Navazi and distinguishable from those in Quinn. The Corporation submits: 1. In Quinn, Judge Taylor found that there was no evidence of the administrative decision having been made by anybody higher than a clerk lower in the administrative hierarchy, whereas in Navazi the decision to cancel the rental rebate was made by a General Manager of Family and Community Services. The decision to prosecute the Appellant was by Mr Vevers, Deputy Secretary of Family and Community Services. As in Navazi, the Court in the present prosecution has the benefit of a hierarchy diagram (Trial exhibit 17, Appeal exhibit 14) to show that Mr Vevers was Deputy Secretary of Family and Community Services in a senior position and that he reported directly to the Secretary (formerly known as Director-General). 2. In Navazi the briefing note for the decision maker was reviewed by two officers in Family and Community Services before approval by a General Manager. In Quinn, the Court found there was no evidence of that vetting process. In the present matter the briefing note approving the prosecution was authored and endorsed first by Mr Fester (solicitor at Family and Community Services Housing NSW), then approved by Chris Valacos (Legal Director of Family and Community Services Housing NSW) and finally approved by Mr Vevers, a Deputy Secretary of Family and Community Services. This is analogous to what occurred in Navazi where the briefing note was vetted by two officers before submission to a person in Family and Community Services holding a senior position to consider and, if thought appropriate, reach the decision recommended. 3. Taylor DCJ found there was no proof that an investigation report was prepared or considered but which was needed under s 58 Housing Act as a precondition to a valid decision under s 57 for rental rebate cancellation. In the 14 June 2017 decision, in the present prosecution, the Magistrate observed there is no such precondition that an investigation report be prepared before prosecution can be commenced. Even if there was such a requirement, briefing notes had been prepared following Mr Chouman's investigation referred to Mr Vevers, Mr Fester, and Mr Valacos; and 4. In Navazi there was no express delegation of the decision under section 57 Housing Act but the Court of Appeal found that the Carltona principle applied as a matter of administrative expediency. The Appellant's submissions about a lack of delegation, at their highest, are no different to the Navazi scenario where the Court of Appeal found Carltona agency applied. 1. Accordingly, the Court Attendance Notice and the Amended Court Attendance Notice were each properly constituted, and the first ground of appeal should be rejected. 2. I accept this submission. Errors in the admission of evidence Second ground: The learned Magistrate erred in admitting the record of interview dated 30 April 2015 into evidence, or alternatively, erred in treating statements made by the appellant during the interview as admissions 1. The Corporation submits that the Magistrate's rulings on the admissibility of the record of interview [Trial exhibit 23, Appeal exhibit 17] were correct and do not demonstrate error, and that the Trial Magistrate correctly treated statements by the Appellant during interview as admissions. 2. The Magistrate's interpretation of the admissions in the interview were fair. It is plain from the record of interview that the Appellant gave false answers in the earlier parts attempting to hide what had occurred regarding to her tenancy, and when provided with documents and with further questioning the Appellant ceased attempts to provide false answers and admitted what had occurred. The Appellant has since tried to disavow the admissions to avoid findings of guilt against her, NC and KG. 3. The Corporation submits that the Appellant's attempts to read the record of interview differently to the interpretation applied by the Magistrate are a strained and artificial which the Magistrate was correct to reject. 4. I agree with this submission. The admissibility of the record of interview obtained during an unauthorised investigation 1. Paras [48]-[56] of the Appellant's Submissions argue that the record of interview was illegally obtained because Advocate Investigator Fadi Chouman lacked authority to conduct the interview on 30 April 2015 and did not investigate within the ambit of section 58 Housing Act. These submissions are erroneous and misconceived. The Magistrate correctly decided on 14 June 2017 that Mr Chouman had express delegated authority to conduct the investigation or implied authority under the Carltona principle and that he investigated within the scope of section 58 for the following reasons: 1. From 18 February 2013, Mr Chouman was Advocate Investigator for Family and Community Services Housing NSW, designated a Clerk Grade 7/8: Affidavit of Mr Cureton 1 March 2017 at [10] and annexure E. 2. The Upton Delegation of 16 January 2015, at row 26.96 expressly delegated the power or function of the Minister, to conduct an investigation under the Housing Act for Legislative Provision Part 7 (which contains section 58) to various persons including to a person in category 6 of Schedule A to the Upton Delegation, which included a Clerk or Regional Clerk grade 7/8, such as Mr Chouman. Accordingly, Mr Chouman from at least 16 January 2015 had express delegation from the Minister for Family and Community Services to investigate if he did not already hold an express delegation under earlier delegations. 3. At transcript 14 June 2017 pages 4.25-5.37, the Magistrate found that even without an express delegation for Mr Chouman to investigate for the Corporation, implied authority existed under the Carltona principle. It would be administratively impractical if the Minister or Director-General of Family and Community Services had to conduct, personally, every investigation under section 58 Housing Act. It would be expedient and appropriate that an employed Advocate Investigator in the Tenant Fraud Unit, Family and Community Services should conduct investigation. 4. By letter to the Appellant dated 13 January 2015 [Trial exhibit four, Appeal exhibit 4], Mr Chouman nominated the power under which he was investigating the allegations against the Appellant to be section 58. 5. In 2015, section 58 of the Act provided: 58 Investigation of application (1) The Corporation may make an investigation to determine the weekly income of: (a) a person who is an applicant for, or a recipient of, a rental rebate under this Part, and (b) any other resident of the house in which that person resides. (2) The Corporation may require a person who is an applicant for, or a recipient of, a rental rebate under this Part to produce such evidence as the Corporation thinks fit of the person's weekly income and of the weekly income of any other resident of the house in which that person resides. 1. In Navazi ibid at [28]-[31], [38]-[47], Leeming JA (with whom Basten and Barret JJA agreed) considered the ambit of the investigation power in section 58, Housing Act. Leeming JA explained: 38 It is wrong to construe s 57 on the basis that the investigation it contemplates must have a single purpose. An 'investigation' is merely a series of inquiries and analysis directed to a particular topic. It is to be contrasted with a decision as to the action to be taken on the basis of the facts ascertained: Taciak v Commissioner of Australian Federal Police [1995] FCA 650; 59 FCR 285 at 294 (Sackville J). There is no reason why an investigation may not have multiple characters and multiple purposes, and, to paraphrase what was said of legal proceedings in Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [35] (original emphasis), 'That [an investigation] may bear several characters does not deny that it bears each of those characters'. There is no reason why its nature might not change as it proceeds - an investigation which commenced on the basis that there had been an alteration in a person's financial circumstances might midcourse become an investigation into fraud. The reverse is also possible: an investigation into suspected fraud may transmute into one involving innocent mistake. 39 There is no support in the text of the statute, which is concise and leaves much unstated, for a narrow meaning to be given to what is an 'investigation'. The nature of the Act is such that often the investigations will involve relatively small amounts of money, for s 55 requires there to be an investigation under s 58 in every case before a grant of rental rebate is made. It is obvious that many or most of the thousands of 'investigations' will be short and informal. The Act may be contrasted with the formal investigations by bodies such as the Police Integrity Commission and the Independent Commission Against Corruption, whose legislation confers compulsive powers, and imposes reporting obligations … In short, the statutory text (particularly its generality and the absence of compulsive powers) seen in its context (hundreds or thousands of investigations) compels the conclusion that something relatively informal will amount to an 'investigation under section 58'. 40 An investigation by a body such as the Corporation may involve inquiries relying on no statutory power. One such inquiry may be speaking with a complainant. It may also involve the limited powers conferred by s 69B to obtain information from various registers including those relating to real property and motor vehicles. In any investigation, there will come a time when further inquiries and analysis are unlikely to result in useful additional information. The results are then likely to be recorded in a document. Here, that document was the Final Investigation Report. … 42 Ms Morgan's Final Investigation Report reflects an investigation which had multiple purposes. One aspect, which was probably the dominant aspect, was the allegation and finding of fraud, leading to recommendations to the Legal Services Branch. An applicant for rental rebate who wilfully makes false statements about his or her assets might commit a fraud upon the Corporation, within the scope of s 69, irrespective of anything to do with the applicant's weekly income. 43 However, another aspect of the investigation which resulted in the Final Investigation Report was Mr Navazi's weekly income. The investigation uncovered abundant evidence that Mr Navazi was receiving a share of $245 per week from the complainant. … 44 True it is that the investigation did not in fact determine Mr Navazi's weekly income. But one important aspect of the investigation was directed to the receipt of rental income, and indeed some primary evidence of that income was obtained. 45 It is not a precondition to the exercise of the cancellation power that the investigation result in a definite answer as to the person's weekly income. At one stage Mr Navazi appeared to submit that there could not be an 'investigation to determine the weekly income' unless there was in fact a determination of weekly income. That submission must be rejected, because the words 'to determine the weekly income' refer to a purpose (which for reasons earlier stated need not be the only purpose), as opposed to the fulfilment of that purpose. In the present case, the weekly income of Mr Navazi was not determined, but nothing turns on that given that Mr Navazi refused to be interviewed, and the Corporation has very limited powers of compulsion. 46 Mr Navazi submitted that more could have been done. He submitted that merely having obtained some information as to a tenant's income was something less than 'an investigation to determine [his] weekly income', and that what was required for a s 58 investigation was that the Corporation had made 'a real effort to ascertain his weekly income, and that [had been] taken as far as it can reasonably be taken in the circumstances'. For example, he submitted that inquiries could be made of banks as to the cost of servicing the mortgages on the properties. It should be said immediately that there is no suggestion in the evidence that any additional material information would have been obtained by further inquiries. But the answer to Mr Navazi's submission is that the Act imposes no precondition upon the exercise of s 57(1) power as to the exhaustiveness and duration of an investigation. The Act leaves all those matters uncircumscribed. Putting to one side an 'investigation' where there was no bona fide attempt to obtain information, there is no reason to imply a minimal standard of diligence or success which must be attained before there is an 'investigation under section 58'. 47 One purpose of the investigation which resulted in Ms Morgan's Final Investigation Report was determining Mr Navazi's weekly income. Accordingly, there was an 'investigation under section 58'. That suffices to reject the primary judge's first basis for invalidating the decision to cancel. (Emphasis added) 1. In Navazi at [1]-[5], Basten JA expressed the view, consistently with Leeming JA's reasons, that section 58 Housing Act should not be read narrowly. Specifically, at [3] his Honour wrote, 3 As Leeming JA explains, the parties approached the operation of s 57 of the Housing Act (set out at [27] below) on the basis that it imposed a jurisdictional precondition to the exercise of the power to grant, vary or cancel a rental rebate, which operated in every case. Because the investigation provided by s 58 is directed to determining the weekly income of the person, whereas it may readily be envisaged that a person may be ineligible on other grounds, it is at least arguable that s 58 does not operate in all cases. In any event, the two sections, read together, should not be construed to impose any more restrictive condition than that explained by Leeming JA. The statute imposed no express parameters on the extent of the "investigation", the content of which will clearly depend upon the circumstances of the individual case. There is no basis to imply any legal constraint beyond the purpose identified in s 58. Nor need the purpose of determining weekly income be the sole or dominant purpose of the inquiry. 1. Mr Chouman's evidence was that part of his investigation related to the weekly income of the household occupants of the Property. He denied that he did not try to investigate the income of the household occupants. He clarified his evidence in re-examination that he conducted investigations into the income of the Appellant, NC and KG and how he did so: transcript 30 June 2018 pages 43.6-56.36. It is apparent from those answers and Trial exhibits 51 to 53 at tabs 14 – 16, pages 643, 663, 668 of the Respondent's Appeal Book (referred to in those answers) that one of the purposes of his investigation was to determine the weekly income of the occupants of the Corporation Property. 2. Mr Chouman's investigation included attempts to determine the income of the household occupants of the property from documents from third parties regarding NC's and KG's employment status and income. He explained in re-examination that he obtained bank statements and reviewed them to identify income for NC and KG He identified potential employers of NC from the bank statements and sought documents from them as to NC's employment and income. 3. In the ERISP [Trial exhibit 23, Appeal exhibit 17], at pages 4:40 - 5:3, Mr Chouman questioned the Appellant about her income and her daughter's income. The Appellant replied that for each of them their respective sources of income was "Disability support pension." [36] This further indicates that one of the aspects of Mr Chouman's investigation was to ascertain the weekly income of the household occupants of the Corporation Property. 4. It is also apparent that one of the purposes of Mr Chouman's investigation was to determine the weekly income of the occupants of the Corporation Property from Trial exhibit 14, Appeal exhibit 13, Appeal Book p 65, a copy of a file note by Margaret Smith of 3 March 2015 in which she relevantly wrote: Tuesday, 3 March 2015 … Phoned TFU [37] and spoke with Fadi re the RSA – states add occ commenced living there from 2014 – this could be an error and need to confirm with client. Also need Add Occ Forms completed. Fadi advised to request proof of income as per policy from date living there and to contact TFU before processing any paperwork." (Emphasis added) 1. Mr Chouman was cross-examined about Ms Smith's file note at transcript 21 September 2017 pages 71.8-86.38. Mr Chouman accepted the conversation referred to in Ms Smith's file note took place as noted by Ms Smith. He agreed that he requested Ms Smith not to let the Appellant know about the investigation, that he was frequently checking the Appellant's tenancy file to see what documents came in and had reviewed the bank statement of NC and KG from the Greater Building Society submitted in response to the request for proof of income. He accepted that he reviewed the Appellant's Centrelink income as part of the matters to which he turned his attention during his investigation. 2. Accordingly, the Court should find there was no error in the Magistrate concluding that Mr Chouman's investigation and interview were lawful. Mr Chouman had either express or implied authority to conduct the investigation for the Corporation. Further, Mr Chouman conducted a lawful investigation that complied with the requirements of section 58, Housing Act. 3. I agree with this submission. The Appellant did not make the 'admissions' his Honour held she made 1. At paras [57]-[61] of Submissions, the Appellant contends that the Magistrate failed to scrutinise the record of interview [Trial exhibit 23, Appeal exhibit 17] (ERISP) and should have found that the Appellant did not admit to anything that would result in the statements made to the Family and Community Services Housing NSW the subject of the Amended Court Attendance Notice being false or constituting a fraudulent device. 2. The Corporation submits that the Magistrate did not err in his Honour's interpretation of the ERISP and that the admissions by the Appellant, found by the Magistrate, were apparent on a fair and objective listening to, and reading of, the ERISP and its transcript. 3. At para [62] of the Appellant's Submissions, there is a passing reference to the Magistrate having erred admitting the ERISP into evidence contrary to sections 85(3)(b)(i), 90(b) and 138 of the Evidence Act. This is not stated as a ground of appeal at paras [47] and [48] of the Submissions in respect of the Magistrate admitting the ERISP. The heading above para [57] of the Submissions concerns the interpretation of whether statements made in the ERISP are adverse admissions of the Appellant. 4. The Appellant offers no argument at para [62] or elsewhere in the submissions as to why the ERISP should not have been admitted into evidence under sections 85(3)(b)(i), 90(b) and 138 Evidence Act and no case law is cited. Accordingly, the Corporation assumes that para [62] of the Appellant's Submissions is an attempt at persuasion using an unexplained assertion and does not contain an appeal point to which the Appellant is required to respond. 5. Notwithstanding the criticism of the Appellant's submissions on these points, my perception is that though offered in general terms they sought to raise for consideration these provisions though I am not persuaded to accept them. I am not persuaded that there was impropriety on the part of the investigator who sought the interview and conducted it such as to engage s 138 Evidence Act 1995. The submissions do not persuade me that the truth of the admissions accepted by the Magistrate was adversely affected, upon my assessment of the nature of the questions and the way they were put. I am not persuaded that it was unfair to the Appellant for the Magistrate to use these responses as evidence of admissions. 6. The Corporation submits that the Magistrate accurately summarised admissions made by the Appellant in the ERISP at page 17 his Honour's reasons, where his Honour stated: From about line 16 on p 23 to line 26 on p 26 of the interview, LC commenced disclosing the full extent of what she said was the occupation of her house by NC and KG. At p 24, she admitted that they moved in just before GC was born in 2013, and on p 25, she explained that the reason that she did not tell that to the LHC was because she could not accept the rent and NC and KG also could not afford to pay rent. She agreed that she knew that she was making a false statement and she did it to try and help the children. 1. The Corporation submits that this is a fair, accurate and plain English interpretation of what occurred in the ERISP and the effect of Appellant's admissions. The Court should find that there was no error in the Magistrate's assessment of the ERISP. 2. In respect of admissions in the ERISP, the ground of appeal seems to be based on how one reads the ERISP. The Corporation submits that the Appellant puts a strained, rather than natural and fair, interpretation on the ERISP. 3. On 16 May 2018, the Magistrate ruled on the admissibility of the ERISP. A copy of the Magistrate's reasons for that decision are at tab four, page 36 of the Respondent's Appeal Book (the ERISP Judgement). The Trial Magistrate at [93] of the ERISP Judgement concluded: The net result of the above is that I allow all questions and answers up to line 28 on Page 26 and disallow the questions and answers after that point. 1. The Corporation submits that relevant matters arising from the ERISP Judgement include: 1. At [37]-[40] of the Magistrate's ERISP Judgement his Honour gave reasons for the impression of various matters regarding the interview after listening to the audio recording and reading its transcript. These included: 1. At [37], [40(a)] and [40(d)] aspects that suggest Mr Chouman had limited experience in conducting interviews and interviewing techniques, including at times asking a new question before an answer was concluded. 2. At [38] the Magistrate stated: I find that there is nothing in the tone, inflection or volume of the questioning that would allow me to find that it was conducted in an aggressive or intimidating manner. When challenges were made to answers it was not done in a derisive or sarcastic mode; and 1. at [40(i)] and [40(j)] about page 26, line 28, the Appellant started crying. 1. At [42]-[43], the Magistrate noted that during the audio and during evidence in Court, despite the Appellant suffering medical ailments, she appeared to understand and answer questions without difficulty. 2. At [41] the Magistrate summarised the Appellant's evidence during the voir dire, in respect of which, at [44] his Honour stated: Again, without making any finding as to her credit, I formed the view that some of her answers were designed to address the very issues that she was aware she had to address to convince the Court to exclude her admissions. 1. At [72] the Trial Magistrate stated: Accordingly, I am satisfied that the prosecution has satisfied me on the balance of probabilities that firstly the conduct of Mr Chouman was not oppressive and that the admissions made by the accused were not influenced by any oppressive conduct 1. At [78] the Trial Magistrate stated: … there was a certain degree of cross-examination and persistence in the questioning, but my view is that that could in no way impact on the reliability of what she said. and 1. At [79] the Magistrate stated: In all the circumstances I find that the prosecution have established that the circumstances in which the admissions were made were such as to make it unlikely that the truth was adversely affected. 1. The Corporation submits the following arises on a fair reading of it together with a fair listening to its audio recording: [38] 1. At pages 3.35-4.38 of the ERISP, the Appellant referred to NC, KG and GC having "moved in" because of the Appellant's "health issues" and agreed they had recently "left the property." 2. At page 4.24-26 of the ERISP, the Appellant said that after NC, KG and GC left the Property in April 2015, "They moved in with a couple of friends and are supposed to be taking over the lease on the property at the end of May. – 1. The Corporation submits these references to having moved in and to having left are plain English expressions and reflect that the Appellant was aware throughout the ERISP that the questioning related to NC, KG and GC having moved in with her and living with her in the Property without declaring that to the Corporation. 2. At page 5 of the ERISP, Mr Chouman showed the Appellant a copy of the letter he sent her on 13 January 2015 requesting the interview and referring to the allegations. Mr Chouman read to the Appellant from the letter her right to silence and her right to have a lawyer, advocate, or friend at the interview. The Appellant answered, I don't have anyone. 1. Mr Chouman gave the Appellant fair warning as to her right to silence and she comprehended what was said to her. 2. Throughout the ERISP, the Appellant's answers are responsive. She understood the questions and offered responsive answers. 3. At pages 7 to 11 of the ERISP, the Appellant gave answers to the effect that for years, including from 2013 up to 20 February 2015, NC (and then KG and GC) mainly lived at Potoroo Drive, in Taree, New South Wales. The Appellant did not give any answer to the effect that NC, KG or GC between 2015 and up 20 February 2015 lived with friends or siblings on the Central Coast around Gosford or Lake Haven. 4. At page 11 of the ERISP, the Appellant answered that about a year ago KG, while pregnant with GC, had medical complications due to which NC and KG … stayed with me, for, like two and half weeks" then after GC was born, they "went back home." Then they would be "backwards and forwards" due to medical treatment for NC or GC in which case they, … would stay sometimes for a few days, sometimes it might have been a week and then return to their home, said to be in Taree. Mr Chouman asked, Have they ever stayed more than 28 days at any one time? to which the Appellant answered "No." - The Corporation submits that the Appellant here discussed plain English concepts appreciating distinction between whether someone was staying for a temporary period (for example, two and a half weeks, a week, or a few days) and whether someone had moved in and was living in the Corporation Property. 1. The Corporation submits that the reference to NC and KG living in Taree during 2013 up to 20 February 2015 was false. The bank account statements tendered show almost daily transactions (e.g., buying fast food, buying fuel, buying groceries, or generally shopping) in NC and KG's bank accounts occurring on the Central Coast and very few transactions in Taree. For example at Trial exhibit 41 at tab 11, page 135 of the Respondent's Appeal Book, NC's St George express freedom account number XXX173 from around 9 May 2013 to 23 December 2015 shows the account frequently used with the majority of transactions in Gorokan and surrounding suburbs or suburbs of Sydney – the only transactions that took place in Taree during that period were (pp 70 (20 May 2014), 60 (27 December 2014) & 54-55 (13 & 14 July 2015)). 2. At page 12 of the ERISP the Appellant first introduced the notion that she believed visitors could stay with her for 28 days or less at a time and she was not aware of any different rule. Mr Chouman said words to the effect of not more than 28 days a year. The Corporation submits that the 28 days issue was a device the Appellant used as part of her false answers to obfuscate and avoid the truth of the occupation by NC, KG and GC at the Property. 3. At page 13 of the ERISP Mr Chouman showed the Appellant her 20 March 2015 Rent Subsidy Application which stated NC, KG and GC moved in on 20 February 2015. At page 13.16-19 the Appellant explained that date as follows: That's when they moved in full-time, when they weren't going backwards and forwards up there because they were going – as I said, they were coming to visit and then they'd go back home … 1. The Corporation submits that this answer shows the Appellant had a plain English understanding of "moved in full-time" and distinguished that from "coming and going backwards and forwards" from another place where NC, KG and GC lived. The reference to "up there" and to "back home" is a reference to Taree which was a false answer and demonstrates that at this stage of the interview the Appellant continued to give false answers to avoid the truth of what occurred in relation to her tenancy. 2. At page 14.1-17 of the ERISP, the Appellant expanded on coming backwards and forwards between the time of GC's birth in December 2013 and 20 February 2015. The ERISP states: MR CHOUMAN: So are you saying from the date that [GC] was born, they were coming up regularly? [LC]: Not – well, regularly as in at least once a month, at least every – like, sometimes every three weeks they might have come for a few days and sometimes it was like a month and a half, depending on in between their appointments, because there's no neurologist in Taree. MR CHOUMAN: And they stayed (indistinct)? [LC]: Yes. MR CHOUMAN: What attracted them to Taree? [LC]: [KG's] grandmother lives up there, her family's up there. 1. The Appellant thus answered that NC and KG between late 2013 and 20 February 2015 were visiting the Property periodically with gaps of between 3 and 6 weeks apart at a time and then would stay in the Property for a few days. The Appellant actively asserted that NC and KG lived during that time in Taree. 2. At pages 16-17 of the ERISP, the Appellant altered her account and said that NC and KG were living with friends in 3 or 4 different places but that each of those were in or around Taree, which included Potoroo Drive Taree, somewhere in Cundletown and somewhere in Wingham. [39] The Appellant said she offered NC, KG and GC to live with her in the Property but they declined because KG … didn't want to leave Taree and leave her grandmother and all that. 1. The Appellant said KG only changed her mind at the beginning of 2015 because NC convinced KG there were better job and other opportunities if they moved in with the Appellant. 2. At pages 18 and 20 of the ERISP, Mr Chouman said that there are documents a person would change when living in different places, such as driver licenses. The Appellant agreed. Mr Chouman informed the Appellant the Tenant Fraud Unit had obtained evidence that various documents were changed to show NC and KG living at the Property including driver licences and electoral role records. Mr Chouman said he has bank statements that show NC came to Lake Haven and the Wyong area much more often than the Appellant said during the interview. 3. At page 21 of the ERISP, Mr Chouman said he did not accept the Appellant's answers and could get more bank statements if he must but said he needs the Appellant to be upfront with him and say when NC, KG and GC permanently moved in with the Appellant. At page 21.45 to 22.3 of the ERISP the following was said: MR CHOUMAN: Are you saying to me today, since the complications with [GC], they have been living with you permanently? [LC]: Well, not all the time, but most of the time, yes. MR CHOUMAN: Okay. So roughly how many days a week? [LC]: Sometimes it was two to three weeks at a time, other times they were up in Harrington. But it was more at my house than anywhere else. 1. The Appellant at page 22.26 of the ERISP said, I thought it was no more than 28 days at a time, and that's what I was going on. 1. The Appellant gave a similar answer at ERISP page 23.1-9. 2. At page 24 of the ERISP, Mr Chouman put to the Appellant that even with the records of Centrelink NC and KG changed their addresses to the Property. The Appellant said the address notification was done for KG to access medical services on the Central Coast. The following then occurred at page 24.29-25.46: MR CHOUMAN: Because they were living here, that's why, that's why they sent it to them, because they were living with you. Whether it's not 365 days a year, they're still living with you. Just for the recording, exactly what date did they move in permanently? This is the last time I'm going to ask you. [LC]: The beginning of December 2014. MR CHOUMAN: Is it not at least from 2013, when you son actually updated his (indistinct) and when [GC] was born and the last time he voted? [LC]: They moved in just before [GC] was born, permanently. MR CHOUMAN: Just before she was born? [LC]: Yes. … [LC] 2013, yes. MR CHOUMAN: 4th of the 12th, so just before. So we'll say a week before? [LC]: Yes. MR CHOUMAN: They moved in permanently. And just the reason why you didn't tell Housing NSW was because? [LC]: Because I couldn't afford their rent and they were paying the specialist's bills and couldn't afford to pay rent either. They could only help out with their food. … [LC]: … I was trying to help them. MR CHOUMAN: Do you have anything else to say? [LC]: I've had a good record throughout my tenancies. MR CHOUMAN: Okay. [LC]: And I beg for forgiveness. 1. The Corporation submits that the Appellant for most of the ERISP was trying to give false answers about the occupation of NC, KG and GC at the Corporation Property, including that they were living in and around Taree. After Mr Chouman told the Appellant that he had documents showing changes of address by NC on driver license and electoral records and banking transactions around the Central Coast more than the Appellant was stating was their attendance at the Property, the Appellant confessed to her conduct. Pages 24 and 25 of the ERISP contain the culmination of those admissions. 2. The Corporation submits the Court should find that the Appellant understood throughout the ERISP the concepts of having moved in with her and living elsewhere. The admissions on pages 24 and 25 of the ERISP are clear and plain and the Magistrate was correct to treat them as such. The court should reject the submissions by the Appellant to the contrary as strained and artificial and unrealistic interpretations. 3. I accept and agree with these submissions. The learned Magistrate erred in admitting the bank and other statements contrary to the Criminal Procedure Act 1986 (NSW). 1. At [63]-[66] of the Submissions, the Appellant contends that the Magistrate erred allowing bank statements into evidence due to their time of service. The bank statements in question are: 1. Greater Bank account statements – Trial Exhibit 42, at tab twelve, page 354 of the Respondent's Appeal Book. 2. St George Bank account statements – Trial Exhibit 41, at tab eleven, page 135 of the Respondent's Appeal Book; and 3. Commonwealth Bank account statements – Trial Exhibit 54, at tab 13, page 593 of the Respondent's Appeal Book. 1. The Appellant contends that under sections 183 or 187 Criminal Procedure Act 1986 the Magistrate should have rejected the tender of the Bank Statements for having been served too late. 2. When Bank Statements were tendered for a second time in 2018, the Appellant object upon the basis sections 183 and 187 Criminal Procedure Act. It was not an error for the Magistrate not to exclude evidence under those provisions when the Appellant took no objection. 3. In any event, it was within the power of the Magistrate to allow the Bank Statements into evidence under section 188 Criminal Procedure Act, in which case the Magistrate would not have erred admitting the documents. 4. Section 183 Criminal Procedure Act relevantly provided: 183 Brief of evidence to be served on accused person where not guilty plea (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. … (3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it. 1. Section 188 of the Criminal Procedure Act, to which the Appellant's Submissions do not refer, provides: 188 Evidence not to be admitted (1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor. (2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. 1. Pursuant to section 188(2) Criminal Procedure Act, the Magistrate had power to allow the Bank Statements into evidence. 2. In DPP v Lazzam [2016] NSWSC 145 at [28]-[36], Justice Adamson explained how section 188 Criminal Procedure Act operates and how the discretion in section 188(2) ought to be exercised. Relevantly, Adamson J explained: 31 If any relevant non-compliance with such a provision or rule can be identified, the Magistrate is obliged, for the purposes of s 188(2), to ask whether the accused person consents to dispensation with the requirements of s 188(1); and, if so, the Magistrate is obliged to dispense with the requirements of s 188(1) 'on such terms and conditions as appear just and reasonable'. If the accused person does not consent, the Magistrate is obliged to consider whether the requirements ought be dispensed with and, if so, grant such dispensation 'on such terms and conditions as appear just and reasonable'. 32 The discretion conferred on the Magistrate by s 188(2) to dispense with the requirements (of the relevant provision of Division 2 or rule) on such terms and conditions as appear just and reasonable is a broad one and must be exercised judicially. The Act does not list the matters that are to, or may, be taken into account in exercising the discretion. Nonetheless, the purpose of the discretion can be divined from its statutory context and authorities in which this, and analogous discretions, have been considered and exercised. 33 The requirement to serve the police brief is a fundamental aspect of the administration of criminal justice. A defendant is entitled to have adequate notice of all the evidence to be relied upon by the prosecution before the charges are dealt with by the court. … 34 A balance is commonly struck by a court's extending the time within which a police brief is to be served and, if necessary, adjourning the hearing so as not to compromise the defendant's opportunity to consider the evidence that comprises the police brief in order to make forensic decisions, such as whether to plead guilty or not guilty. 35 In Director of Public Prosecutions v West [2000] NSWCA 103; 48 NSWLR 647 the Court of Appeal considered the statutory predecessor to s 188 (s 66F of the now repealed Justices Act 1902 (NSW)). Of present relevance, Mason P (Sheller and Giles JJA agreeing) said of the discretion in s 66F(3) (now s 188(2)) at [24]: '(h) However (and subject to s 66F(3)), the Magistrate may, and on the application of or with the consent of the defendant must, dispense with the requirements of subs (1) on such terms and conditions as appear just and reasonable (s 66F(2)). The judicial discretion is a broad one, but it is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined so long as unfairness or injustice does not occur: see further par (m), below. . . . (m) It is possible to conceive of situations where it would not be just or reasonable to grant to a non-complying prosecuting authority an adjournment and extension of time pursuant to s 66G. However, the general thrust of s 66G is to ensure that the case is able to proceed, after a suitable adjournment to overcome the prejudice flowing from non-compliance. Section 66G thus fits in with the law as explained by the High Court in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 32 and 75.' 36 The circumstances of the instant case can be used by way of illustration. Had there been any relevant non-compliance (such as to engage s 188(1)), the following factors would have been relevant to the exercise of the discretion in s 188(2): (1) Whether there was any prejudice to the defendants; and, if so, whether it could be cured or ameliorated: for example, on conditions that included an adjournment (in the present case, no prejudice was identified; and no adjournment sought); (2) The reason for any non-compliance (in the present case, lack of police resources; absence of relevant police officers; the Christmas break; need to canvass the public); (3) The probative value of the evidence and its importance of the evidence to the proof of the offences charged (in the present case, crucial to the proof of the charges, as illustrated by the fact that its rejection deprived the prosecutor of proof of identification and resulted in an acquittal on that basis alone); (4) The public interest in determination of criminal proceedings by reference to probative, (otherwise) admissible evidence (which, in the present case, was subverted by the rejection of the evidence); and (5) The public interest in finality and avoiding delays in proceedings (in the present case, relatively slight delay). 1. On 8 June 2016, the first day of the trial, at the outset, the Corporation sought leave to rely on bank statements served less than 14 days before the hearing commenced. NC's advocate objected. [40] Following applications and adjournments, NC's solicitor next foreshadowed objection to the admissibility of the Bank Statements on 4 May 2017. [41] 2. Due to the various applications made by the Defendants in the early stages of the trial, the Corporation first tendered the Bank Statements on 18 September 2017 with notices for production of documents issued by Mr Chouman under section 69C Housing Act. This was more than a year after the Bank Statements were served and the trial had begun. Submissions were made as to the admissibility of the Bank Statements on 20 and 21 September 2017 and judgement on the question of admissibility was reserved. [42] Counsel for the Corporation raised that the Bank Statements were sought to be relied upon under section 188(2) Criminal Procedure Act at transcript 20 September 2017 pages 2.28-3.30. 3. It appears that when the Bank Statements were tendered in 2017 and again in 2018, neither the Appellant, NC nor KG objected to the documents under the 14-day rule in section 183 Criminal Procedure Act. No such objection appears in the transcript and a similar objection in relation to other documents was not pressed in 2017. [43] Accordingly, the Magistrate did not need to rule under section 188(2) Criminal Procedure Act. 4. In respect of the Bank Statements: 1. When the prosecution tendered Trial exhibit 41, it was admitted over objection, but the transcript does not record what the objection was (Transcript 25 July 2018 page 98). 2. When the prosecution tendered Trial exhibit 42, it was admitted into evidence without objection by any of the defendants (Transcript 26 July 2018 pages 4-5); and 3. When Trial exhibit 54 was tendered, none of the defendants objected under sections 183 or 187 Criminal Procedure Act. The Appellant's advocate expressed his objection to the tender as, I object to them on the basis that they'd be beyond my client's knowledge (Transcript 30 July 2018 pp 63-64). 1. The Magistrate ruled on the admissibility of the Bank Statements on 13 November 2017. The Magistrate rejected the tender of the Bank Statements on the basis that his Honour considered authenticity had not been proven by production of documents in answer to a notice for production under the Housing Act. [44] 2. During the next adjournment, the Bank Statements were re-served by the Corporation with statements from representatives of each bank to prove their authenticity and to explain how the Bank Statements were to be interpreted. 3. Considering section 188(2) Criminal Procedure Act, the Magistrate would have been correct to admit the Bank Statements into evidence in 2018 for the following reasons: 1. Any prejudice to the Appellant with respect to the Bank Statements, it was ameliorated. The defendants were afforded numerous adjournments over a period of more than 3 years. The defendants made various applications throughout the duration of the trial. The Appellant and her representatives had many opportunities to consider exhibits 41, 42 and 54 and whether to call evidence in response. The Appellant tendered many documents, gave evidence, and called other witnesses to give evidence. The Appellant's and NC's representatives cross-examined representatives from each bank in respect of the Bank Statements. [45] 2. The Bank Statements were important in proof of the charges as the prosecution case, apart from the ERISP, was circumstantial and the bank statements were an important strand in the finding of guilt against each of the Appellant, NC and KG [46] In the 2020 Reasons, the Magistrate referred to the bank statements and location of transactions as one of the strands that supported a finding of guilt against each defendant on the circumstantial case [see in particular pages 9 to 11, 14 and 15 of the 2020 Reasons]. 3. The public interest in determination of criminal proceedings by reference to probative and otherwise admissible evidence would have been subverted had the Bank Statements been rejected from evidence. 4. The public interest in finality and avoiding delays in proceedings was not subverted by allowing the Bank Statements into evidence. The delays in the current proceeding (apart from amendment of the court attendance notices) were due to the numerous applications brought by the defendants, NC's solicitor taking ill and ceasing to be able to continue to act and the forensic decisions made by the defendants in defending the charges. 1. I agree with this submission. 2. The Corporation submits that the Magistrate would not have erred exercising the discretion permitted under section 188(2) Criminal Procedure Act in circumstances including: 1. Trial exhibit 41 was admitted into evidence on 25 July 2018 (Transcript 25 July 2018 page 98). A representative of the Greater Bank, Mark Allingham, who provided a statement, attended on that day, and was cross-examined by the Appellant's and NC's respective advocates (Transcript 25 July.2018 pages 94-98). 2. Trial exhibit 42 was admitted into evidence on 26 July 2018 (Transcript 26 July 2018 page 4). A representative of the St George Bank, Kylie Willingham, who provided a statement, attended on that day, and was cross-examined by the Appellant's and NC's respective advocates (Transcript 26 July 2018 pages 5-10). 3. Trial exhibit 54 was admitted into evidence on 30 July 2018 (Transcript 30 July 2018 page 64). A representative of the Commonwealth Bank, Anthony McMahon, who provided a statement, attended on that day, and was cross-examined by the Appellant's and NC's respective advocates (Transcript 30. 2018 pages 64-67); and, 4. The Appellant's advocate at the Trial had further opportunities to cross-examine Mr Chouman and Ms Smith after exhibits 41, 42 and 54 were admitted into evidence. 1. Accordingly, the appeal ground as to whether the Bank Statements were incorrectly admitted into evidence should be rejected. 2. I agree with this submission. Errors in the learned Magistrate's findings and approach resulting in the convictions The learned Magistrate asked the wrong question, and misconstrued the offence the prosecution was required to prove 1. At paras [67]-[81] of Submissions, the Appellant contends the Magistrate erred in finding that the statements in the 5 March 2015 Letter, the 20 March 2015 Rent Subsidy Application and the 20 March 2015 Additional Occupant Forms were false when they stated NC, KG and GC "moved in" to the Corporation Property on 20 February 2015 because: 1. Each of those documents did not call for a history of the tenancy to be disclosed; or 2. NC, KG and GC could have moved out and moved back into the Property on multiple occasions whereby the representations could have been true; or 3. If the statements were false or the documents fraudulent devices, the Corporation did not prove beyond a reasonable doubt they were wilfully created so by the Appellant to obtain or claim accommodation a rental rebate, or any other advantage or concession. 1. The Court should also reject this ground of appeal as being misconceived and incorrect. 2. I agree. 3. The Appellant's contention that the documents the subject of the charges did not call for a history to be disclosed fails to appreciate the contents of the documents on their face and the charges before the Court: 1. The Rent Subsidy Applications asked what had changed since the previous disclosure by the Appellant to the Corporation. Since commencement of the tenancy at the Property in early 2013 the Appellant had only disclosed the household occupants of the Corporation Property as herself and her youngest daughter. In those circumstances the representation that NC, KG and GC moved in on 20 February 2015 indicated this was the first time they had moved into the Property. 2. The 20 March 2015 Additional Occupant Form asked where NC, KG and GC had lived in the 6 months before 20 February 2015; the answer written was Potoroo Drive, Taree. This further represented that NC, KG and GC had not moved into the Corporation Property in the 6 months before 20 February 2015. 3. Whether or not a document called specifically for a history to be disclosed, from the face of each document the Appellant made representations in them as alleged in the Amended Court Attendance Notice. The question is were those representations false or did they make the documents a fraudulent device? The representations were on plain reading of the documents that: 1. The household occupants of the Property had changed from the previous disclosures to the Corporation from only the Appellant and her daughter to include NC, KG and GC and that they first moved into the Property on 20 February 2015. 2. For the 6 months before 20 February 2015, NC, KG and GC lived at Potoroo Drive, Taree not the Property; and 3. NC, KG and GC first moved into the Property on 20 February 2015 and not on or from 20 February 2014 represented by the Appellant to be a mistake. 1. The Appellant failed to address the representation on the documents the subject of the charges considering the history of the tenancy and how it was false or fraudulent by giving a false impression that would hide the truth the tenancy from the Corporation. The representations gave a false and fraudulent impression of who was living in the Property prior to 20 February 2015 and the total income of the household occupants. 1. The Magistrate was correct to find that the representations by the Appellant the subject of the charges were false. The 2020 Reasons provide ample detail and analysis as to why the representations were proven to be false beyond a reasonable doubt. In particular: 1. Considering the admissions contained in the ERISP referred to previously in these submissions, the representations were clearly false as NC, KG and GC had moved in permanently to the Corporation Property in December 2013 and left in April 2015. 2. The various documents in evidence, including the Bank Statements, show as implausible that NC, KG and GC were living in or around Taree between May 2013 and February 2015, and were living in the area where the Property is. 3. In her evidence in 2018 the Appellant explained that NC, KG and GC between 2013 and February 2015 were living with a friend (Jenny at Blue Haven, on the Central Coast) and NC's brother (at Wyee Point, on the Central Coast). 4. This evidence contradicted the explanations given by the Appellant in the ERISP, the Potoroo Drive, Taree address given in the 20 March 2015 additional occupant forms and the addresses for NC and KG provided to banks, NC's employers and Government authorities. The Blue Haven and Wyee Point alibis were uncorroborated by any other document. The Appellant was not a credible witness such that one might accept her evidence, uncorroborated, as a plausible possibility; and 5. There was an overwhelming circumstantial case that from at least December 2013 to April 2015, NC, KG and GC had moved in and were living at the Property. 1. I agree with this submission. 2. The Appellant's contention that even if the statements were false or the documents fraudulent devices, the Corporation did not prove beyond a reasonable doubt that the Appellant's conduct was wilful to obtain or claim from the Corporation accommodation or a rental rebate, or any other advantage or concession. The Corporation submits: 1. Considering the admissions contained in the ERISP referred to previously, the false representations and fraudulent documents were prepared by the Appellant because she did not want her and her children to pay a higher rent (which she asserted they could not afford to pay) and wanted to provide NC, KG and GC with a place to live. Those matters on their face show the wilful making of the false statements to 1. Avoid reduction of rental rebates and consequent higher rent and 2. To procure accommodation for NC, KG and GC It reflects that the Appellant did not want to pay refund rebates received from when NC, KG and GC moved in during December 2013 that the Appellant knew she would not have received, had she disclosed the truth of when they moved into the Property, because the rent would have increased had the Appellant disclosed the truth; 1. The Appellant's Submissions at paras [78]-[81] misconstrue the nature of the rental rebate and accommodation system and the evidence. Had the Appellant in March 2015 disclosed that she had failed to declare the occupancy of NC, KG and GC since December 2013 then: 1. Under section 57 Housing Act (or common law actions such as the tort of deceit, breach of contract or restitution) the Corporation could have sought to recover from the Appellant rental rebates previously provided to her (in part payment of her rent) since December 2013; and 2. Due to discovery of the rental subsidy fraud or material non-disclosure since December 2013, the Corporation could have cancelled all rental rebates going forward and refuse to provide future rebates [47] and/or seek to evict the Appellant from her tenancy. 1. A benefit or advantage referred to in section 69 Housing Act, can include giving false or fraudulent information to the Corporation in an effort to hide from the Corporation circumstances that could alert the Corporation to the its rights to retrospectively cancel a rental rebate under section 57 Housing Act for previous or ongoing fraud or material non-disclosure: Rebecca Khodragha v R, unreported 22 February 2017, District Court of NSW, Sides DCJ at pages 2 and 3. [48] In Khodragha, at pages 2 and 3, Judge Sides relevantly explained: The behaviour, the subject of the offence, relates to the lodging of documents with the corporation of a rent subsidy application dated 14 October 2014 and lodged with the respondent on 20 October 2014, which contained false information as to the occupants of the premises leased from the respondent. By this mechanism or the falsehoods in the document, the appellant obtained a benefit in the future of a rent subsidy of $131.95 from 20 October 2014 to 30 November that year and an increase of that rebate to $141.91 thereafter. … According to submissions on her behalf, in the period covered by the charge, the amount of benefit was $8,000 and much has been put in the form of argument in that regard as indicating the extent of the criminality. This misconceives, in the Court's view, the charge as it was understood during the hearing process by lawyers then representing her. … What that submission overlooks is sub-paragraphs (e) and (c) in relation to sequence 1, which refers to hiding from the corporation information that would allow the corporation to investigate her financial position and the financial position of occupants of the property that could have disclosed information to the respondent, that it could have used to make a decision under s 57 of the Housing Act 2001, to retrospectively reduce or cancel the appellant's entitlement to rental rebates from the respondent and to recover whole or part thereof and to hide from the respondent corporation - (c) and to hide from the respondent corporation information that could allow the corporation to issue a notice of termination of lease to commence action to evict the appellant from the relevant property and that is particularised and I do not propose to go into it. That that was the case, is confirmed by the facts in paragraph 9 that avers in a series of sub-paragraphs (a) to (n) material factors referring to her marriage under the Moslem religion in 1991, the fact that her husband to that marriage had worked as an electrician since 1995 and since at least 25 March 1999 had occupied the property she leased from the respondent corporation. … To focus on the $8,000 is, as the Court has indicated, to misconceive the prosecution case because part of its case and in terms of the quantum involved, the bulk of its case, related to her hindering by the false statement that she lodged in October 2014 the respondent corporation from investigating the history of her occupancy and retrospectively cancelling the rebate that she had received during a period at least from March 1999 until the date in question, a sum apparently well in excess of $80,000. 1. This ground of appeal should also be rejected. 2. I agree. The learned Magistrate erred in convicting the appellant on all charges in that it was not open on the evidence before the Court for the Magistrate reasonably to conclude that NC and KG had resided at the property continuously from at least December 2013 until February 2015 1. At [82]-[96] of Submissions, the Appellant in effect contends that the Corporation failed to exclude all reasonably possible explanations consistent with innocence because the Magistrate could not exclude on the evidence the possibility that NC, KG and GC were living with a friend or a sibling on the Central Coast, instead of in the Corporation Property. 2. The Corporation submits that the Appellant's submissions select various aspects of the evidence to support the ground of appeal. However, when the Court looks at the totality of the evidence, as the Magistrate correctly did in the 2020 Reasons, the charges were each made out beyond a reasonable doubt. 3. In this respect, the Corporation also relies upon the Chronology Submissions in closing submissions at first instance and its Closing Submissions. 4. Moreover, considering the admissions in the ERISP referred to previously, the Appellant's contention that NC, KG and GC were living with a friend or a sibling on the Central Coast from December 2013 to 19 February 2015 cannot be true. 5. During the ERISP on 30 April 2015, the Appellant referred to NC, KG and GC living in and around Taree. Places other than Taree the Appellant referred to were Cundletown, Wingham and Harrington. They are around Taree and not on the Central Coast of New South Wales. At no time in the ERISP did the Appellant suggest that NC, KG and GC were living on the Central Coast with a friend (Jenny at Blue Haven) and NC's brother (at Wyee Point) on the Central Coast between 2013 and February 2015. 6. Upon documents in evidence, including the Bank Statements, it is implausible that NC, KG and GC were living in or around Taree between May 2013 and February 2015, and that they were instead around the Property. 7. The account that NC, KG and GC were living on Central Coast with a friend or a sibling between 2013 and February 2015 first arose when the Appellant gave oral evidence in the proceedings on 3 April 2019 such as at transcript 3 April 2019 page 10, more than seven months after the Bank Statements were admitted into evidence when the Appellant and the other defendants had had time to consider an explanation for the voluminous transactions in NC and KG's Bank Statements on the Central Coast and the absence of transactions in or around Taree. 8. During her oral evidence in 2018 the Appellant explained that NC, KG and GC had been living between 2013 and February 2015 with a friend or a sibling on the Central Coast. However, that evidence contradicted the explanation given in the ERISP, the residential or mailing addresses declared by NC and KG with banks, insurers, NC's employers and Government authorities in evidence, and was uncorroborated by any other document or witness. 9. As cited in para [82] of the Appellant's Submissions, the High Court in Baden-Clay ibid decision at para [47] said of a circumstantial case: For an inference to be reasonable, it 'must rest upon more than mere conjecture. … all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.' 1. The reference to NC, KG and GC living with a friend or sibling on the Central Coast is no more than mere conjecture and not reasonably open on the evidence. There is no corroborating evidence to support the Appellant's assertion in her oral evidence. Further, the evidence before the Court of declarations by NC and KG to third party private and government bodies only corroborates that NC and KG were residing at the Property from December 2013 to 19 February 2015. 2. At para [85] of Submissions, the Appellant refers to inspections conducted by Margaret Smith of the Corporation Property. In respect of those: 1. Only three inspections occurred during the date range November 2013 to 19 February 2015, on days around mid-November 2013, 17 July 2014, and December 2014. 2. Ms Smith's evidence included that generally before inspections took place written notice was given to the Appellant in advance. Advance notice of inspections occurred for each inspection of the Property except for the December 2014 inspection where Ms Smith conducted an unscheduled visit with no prior notice to the Appellant: [49] 3. At the scheduled inspections Ms Smith did not notice circumstances consistent with persons other than the Appellant and her daughter living in the Property. However, with notice of the inspections she had time to arrange for NC, KG and GC to be absent and remove belongings that might indicate they were living in the Property; and 4. Ms Smith, at her unscheduled inspection in December 2014 [50] of the Property observed the garage made up as a bedroom including a baby's change table, baby products, baby's nappies, wipes, and baby's toys. [51] 1. In relation to para [90] of the Appellant's Submissions, the suggestion that persons other than NC and KG were undertaking in person transactions in the Bank Statements s no more than mere conjecture. There was no evidence by the Appellant that she used those accounts or knew of anybody other than NC and KG using those accounts. There was no evidence that corroborated that a person or persons other than the account holders transacted their accounts in person. 2. Furthermore: 1. Each of Mr Attard from St George, [52] Ms Willingham from Greater Bank [53] and Mr McMahon from the Commonwealth Bank [54] agreed in cross-examination that someone could give their key card and pin code to someone else to use and all that the Bank Statements show is where a person used the card on each day, not who used the card. However, their evidence does not rise above mere conjecture as to whether NC or KG gave their cards to other persons to use and did not use the cards themselves. Giving cards and pin codes to other persons was not unheard of by the witnesses but was not said to be a norm. These witnesses had no knowledge of NC and KG's card usages to allow them to say anything more than offer mere conjecture upon whether this explained the transactions in the Bank Statements; and 2. Mr Attard from St George Bank said in re-examination that if the usage in a person's bank accounts was bank fraud that would be unlikely to go on for years because people would normally detect that up straight away with their account. 1. At pages 12 and 13 of the 2020 Reasons, the Magistrate referred to the Appellant's evidence during the trial about NC and KG living on the Central Coast. The Magistrate concluded at page 13: I am of the view that [LC's] lack of clarity as to where NC and KG were living from 2013 to 2015 was a deliberate attempt to deflect the Court away from where they were, in fact, living. That fact that she never mentioned the Wyee and Blue Haven address until after the interview with Chouman is highly suggestive of her inventing that evidence to cover for the evidence served on her after the commencement of the proceedings. 1. At page 9 of the 2020 Reasons, the Magistrate summarised the evidence of NC's motor vehicle insurers (Youi and NRMA), the effect of which was that NC declared in 2013 and 2014 the risk address where his car was housed overnight as the Property and for April 2015 to June 2015 the address was changed to Werrington. The proposition that the Property was a mere postal address is inconsistent with the declaration that the address where NC's car was housed overnight was the Property. The insurance declarations were consistent with NC living at the Property from at least December 2013 to 7 April 2015. 2. At para [92] of Submissions, the Appellant refers to Ms Joosten, the next-door neighbour not having seen NC and KG at the Corporation Property. However, the Submissions makes no reference to the substance of Ms Joosten's evidence. 3. At page 16 of the 2020 Reasons, the Trial Magistrate correctly made the following observations regarding Ms Joosten's evidence [incorrectly spelt in the transcript of the 2020 Reasons as "Dutson" rather than Joosten]: … Ms Dutson said that she only saw NC once when he helped her with her air-conditioning. However, LC suggested at one stage that NC and KG had lived at the premises for three and a half weeks in December 13, and after that they visited her, from time to time. In her final submissions, it was suggested that they visited, from time to time, and they may have moved in and they may have moved out on a number of occasions. Now, if that is correct, then neither Mr Leach or Dutson (sic) saw them during those visits or times when they moved in and moved out. consequently, the observations of those witnesses, do not, in any way, assist in my determination. All that can be said from their evidence is that neither saw NC or KG, even at times when the Appellant said they were either visiting or moving in and moving out. 1. The Corporation submits that Ms Joosten was an honest witness but her perception of what was going on inside the Property was unreliable as she paid little if any attention to what went on there and did not properly discern her neighbours' movements due to the way the houses were constructed or configured: 2. Ms Joosten worked from home from roughly June 2013 until March 2017, seven days a week, except for about 3 days in every few months. [55] Ms Joosten did her work predominantly in her back room (performing bookkeeping or accounting services) and from that room she could not see the Property. [56] Ms Joosten said that she had a view of the front part and front door of the Property and driveway from her kitchen window, and a view of the backyard when she was in her backyard, but there was a dividing fence that came up to her nose height, some trees along the border of the properties and she had blinds on her windows through which she cannot see when closed. She closed her blinds at night and occasionally during the day. [57] However, 1. The Appellant said in her evidence NC, KG and GC lived with her in the Property for about four weeks after GC was born in December 2013, because of the medical situation with KG; [58] and 2. Said her eldest daughter and her daughter's children lived with her for approximately three weeks around December 2014 escaping a domestic violence; [59] and 3. It was not disputed that NC, KG and GC lived with the Appellant from about 23 February 2015 to 7 April 2015, allowed by the Corporation upon the disclosures in evidence [Trial exhibit ten, Appeal exhibit 9] representing that NC and KG were unemployed and that NC, KG or GC had not lived in the Property before 23 February 2015. 1. Ms Joosten paid so little attention to the Property that during the above three periods in which the Appellant conceded there were additional occupants in the property, Ms Joosten was oblivious and instead said in her evidence that no additional occupants ever lived in the Property as far as she was aware. [60] 2. Ms Joosten gave evidence that she saw people visiting the Property, including KG and NC, according to her perception of it, but conceded in effect that she was not keeping watch on her neighbours, she was basically minding her own business, and was not staring into what was happening at the Property.; [61] 3. Ms Joosten gave evidence that she could not hear what went on inside the Property and had never heard a baby cry. [62] 4. The Magistrate did not err in concluding on the evidence either with, or without the ERISP, that: 1. The charges against the Appellant were proven beyond a reasonable doubt; and 2. All reasonable hypotheses consistent with innocence reaching a level above mere conjecture had been excluded by the Corporation beyond a reasonable doubt. 1. I agree. The learned Magistrate made errors in applying the onus of proof 1. At [97]-[102] of Submissions, the Appellant contends that the Magistrate incorrectly reversed the onus of proof from the Corporation as prosecutor to the Appellant such that effectively the Appellant had to prove her innocence. 2. On any fair reading of the 2020 Reasons this appeal point is not tenable. 3. The Magistrate was aware of and applied the onus of proof to the prosecution as can be observed from the following passages of the 2020 Reasons: 1. Page 4, line 44 of the 2020 Reasons, it states: Apart from the statements made by LC in her record of interview, the Prosecution rely on a confluence of circumstantial evidence to prove their case. There is no direct evidence that NC and KG moved into the house prior to February 15; 1. Page 12, line 33 of the 2020 Reasons, states Whilst the prosecution bears the onus of proof, at all times, LC did give evidence as to where NC and KG were living." (Emphasis added); 1. Page 13, line 24 of the 2020 Reasons states: Again, I emphasise that, at all times, the prosecution bears the onus of proof and it is not for the defendants to prove where they were living, however, I do note that despite LC giving evidence and making statements that NC and KG lived at a number of other locations from 2013 to 2015, there is no documentary evidence that supports any address other than the LC address. (Emphasis added); 1. Page 21, lines 19-48 of the 2020 Reasons, including: Is there a reasonable hypothesis consistent with innocence? If there is a reasonable hypothesis consistent with innocence of the accused, then I would have to find that the prosecution had not satisfied me beyond a reasonable doubt as to their guilt. … … A common mistake in circumstantial cases is that it is often said that if a defendant simply makes a statement that would exculpate him or her, then that is a hypothesis consistent with innocence. That is not and has never been a correct statement of the law. What the law requires is that if there is a hypothesis consistent with innocence, that hypothesis has to be supported by the evidence in the case. A statement by an accused that he was not present at the scene of the crime is not a reasonable hypothesis unless there is evidence to support that proposition. and 1. Page 25, line 17 of the 2020 Reasons, states: I accept that the Corporation, at all times, bore the onus of proving beyond a reasonable doubt that this statement was false and that LC did not have to prove anything. However, once LC gave evidence, one would have expected her to give clear, precise, consistent evidence as to the date and the circumstances of them moving in. Her evidence did not bear any of those characteristics. (Emphasis added). 1. These passages are consistent with an accurate application of the law relating to burden of proof on the prosecution and for a criminal prosecution based upon circumstantial evidence. 2. In a circumstantial case, for an inference to be reasonable it must rest upon something more than mere conjecture or a bare possibility: The Queen v Baden-Clay bid at [47]. 3. As the fundamental principle remains in a circumstantial case that the Crown must prove the charge beyond reasonable doubt, a defendant is not obliged to establish that an inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: The Queen v Baden-Clay ibid at [62]. 4. The trial judge can invite defence counsel to state any reasonable hypothesis consistent with innocence that may be put to the jury in the summing up: The Queen v Baden-Clay ibid at [60]. 5. Where an accused with peculiar knowledge of the facts is silent and could not be the subject of evidence from another source, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused: The Queen v Baden-Clay ibid at [50]. 6. The Crown must prove its case beyond reasonable doubt so where the evidence relied upon by the Crown may give rise to another reasonable explanation for the facts other than that the accused is guilty of the offence charged the Crown has not proven the charge: see generally Shepherd v The Queen (1990) 170 CLR 573; R v Keenan (2009) 236 CLR 397 at [126]. 7. In a circumstantial case, all the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Baden-Clay at ibid [47]. The evidence must be considered as a whole and not by a piecemeal approach to each individual circumstance: The Queen v Hillier ibid at [46]. 8. In R v Doyle [2018] QCA 303 at [29]-[32] Sofronoff P (with whom Douglas J agreed) explained the concept of mere conjecture as follows (footnotes omitted): 29 In my respectful opinion this submission misunderstands the well-established proposition that, in a circumstantial case, in order to secure a conviction the Crown only has to exclude every reasonable hypothesis consistent with innocence. It is important to appreciate that the word 'reasonable' does not mean 'logically open in theory.' Many inferences might be open as a matter of theoretical logic but which, in truth, are entirely unrealistic. Various terms have been used to describe such unreal, but theoretically possible, inferences. They have been called 'light' or 'rash' and they have been described as 'mere conjecture.' An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility or, if one prefers, upon 'something more than mere conjecture.' It must be based upon evidence. 30 In Peacock v The King, O'Connor J said: 'In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner's guilt, it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved.' 31 It is for the jury to determine whether a supposed hypothesis consistent with innocence is or is not reasonable in this sense. Hypotheses consistent with innocence cease to be reasonable when there is no evidence to support them, particularly when that evidence, if it exists, must be within the knowledge of the accused. 32 The hypothesis urged in this case was unreasonable in that sense. It was theoretically possible that somebody had borrowed the appellant's car and that person had then committed the offences. It was also possible that someone had stolen the car and had then committed the offences. Such things do happen. In the sense of being possibilities, these theories were not irrational. However, the principle under consideration requires more than a theoretical possibility. There must be evidence to support such a hypothesis. There was no such evidence in this case. What is more, the person who could have given evidence about those matters if they were true was the appellant. He chose not to do so. The jury would have been wrong to base an acquittal upon mere theories. 1. In Moore v R [2016] NSWCCA 185 at [37]-[38] Basten JA (with whom RA Hulme JJ agreed) explained: 37 Further, it was necessary for that the possibility that the accused held a particular belief to be a reasonable (and not fanciful or entirely speculative) possibility in order for the doubt to be reasonable. That answer is consistent with the language and reasoning adopted by Barwick CJ in Viro, set out above. 38 In a sense, the requirement that a doubt be 'reasonable' requires a juror who has formed such a doubt to interrogate the basis of the doubt. That is not to say that it will be done in these terms, and the High Court has disparaged any suggestion that a juror be required to interrogate his or her thought processes. Nevertheless, the doubt will not be 'reasonable' if there is no reasonable ground to entertain it. 1. The Trial Magistrate's explanation of the principles relating to circumstantial evidence in a criminal prosecution were consistent with the above legal principles. 2. In the present case, the Appellant by her oral evidence asserted that NC and KG were living with a friend and a sibling on the Central Coast and that explained why the Bank Statements would show so many transactions on the Central Coast. However, apart from the oral evidence of the Appellant, no other evidence before the Court corroborated the explanation as a reasonable possibility, but to the contrary, the evidence taken together overwhelmingly pointed to NC and KG living in the Property from December 2013 to 19 February 2015. Accordingly, the explanation that NC, KG and GC were living with a friend or sibling on the Central Coast did not enliven a reasonable doubt for there was no reasonable grounds open from the evidence upon which to entertain it as a possibility. 3. Similarly, there was no evidence given by the Appellant or anyone else that NC and KG used the Property only as a mailing address, a mere theoretical possibility not established as reasonable on the evidence before the Court. It rose no higher than mere conjecture. The only evidence that came close to it was the Appellant's assertions that NC and KG used the address to access ongoing medical services, but this was not corroborated by other evidence before the Court, was contrary to the admissions in the ERISP, and did not explain the use of the address for NC's employers and his insurers. 4. Accordingly, there was no error by the Trial Magistrate in respect of understanding and applying the onus of proof in this proceeding. 5. I agree with this submission. Separately, and alternatively, the learned Magistrate erred in convicting the Appellant under sequence four of the Amended Court Attendance Notice 1. At paras [103]-[104] of Submissions, the Appellant contends that the Magistrate erred finding the Appellant guilty of sequence four in the Amended Court Attendance Notice because: 1. There is said to be no finding that the Appellant deceived or set out to deceive any officer or employee of the Corporation; 2. The Amended Court Attendance Notice did not identify with any precision the identity of the "Officer" the Appellant is alleged to have set out to deceive; and 3. The Corporation itself cannot employ any staff. 1. The Corporation notes that this appeal point and argument about the drafting and interpretation of sequence four of the Amended Court Attendance Notice does not appear to have been raised as a submission by the Appellant at trial. It is raised for the first time in this appeal. Nonetheless, the Corporation submits that this last ground of appeal should also be rejected as incorrect. 2. Sequence four is to the effect that contrary to section 69(1)(a) Housing Act, the Appellant made a false statement, by the 20 March 2015 Additional Occupant Forms [Trial exhibit ten, Appeal exhibit 9], stating that NC, KG and GC moved into the Property on 20 February 2015 instead of from at least 10 December 2013. The Appellant wilfully made the false statement to deceive the officer or employee of the Corporation who should consider the Additional Occupant Form in relation to obtaining a rent rebate or rent subsidy from the Corporation for the Appellant. 3. The Magistrate in the 2020 Reasons found all charges against the Appellant proven. The Magistrate found that the Appellant made the false statements and used the fraudulent devices to hide that NC, KG and GC had moved into the Property and lived there since at least December 2013 and up to 19 February 2015. The Magistrate found the Appellant did this to keep the accommodation at the Property for herself and NC, KG and GC and to avoid the rental increase that caused by reduction or cancellation of the rent rebate. 4. The officer or employee the Appellant set out to deceive is alleged in sequence four, and found proven beyond a reasonable doubt by the Magistrate, as … the officer or employee of the Corporation who should consider the Additional Occupant Form in relation to obtaining a rent rebate or rent subsidy from the Corporation for the [Appellant]. 1. There is no requirement in s 69(1) of the Act that the officer or employee should be identified by name. The Appellant at no time ever sought further and better particulars of the identity of the officer or employee referred to in the original or amended Court Attendance Notice. 2. The officer or employee is identified in the Amended Court Attendance Notice as the person, whomever he or she may be, who is the officer or employee that would consider the Additional Occupant Form in relation to obtaining a rent rebate from the Corporation after it was lodged by the Appellant with Family and Community Services Housing NSW. 3. The Appellant's submission that s 7(3) of the Act states that the Corporation cannot employee staff, ignores the note to s 7 that states: Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the Corporation to exercise its functions. 1. Sections 6 and 7 of the Act reflect that the staff employed by Family and Community Services NSW are the officers and employees of the Corporation, of which there is evidence by way of Schedule A to each delegation in evidence. 2. Accordingly, it was open to the Magistrate to find that sequence four of the Amended Court Attendance Notice was proven beyond a reasonable doubt and this ground of appeal should also be rejected. 3. I agree with this submission. Consideration 1. Further reflection upon the evidence, the findings by the Magistrate which I accept were open to his Honour, and which I accept to be the appropriate findings in the matter, and upon the legislation and principles and their application here, is unnecessary considering the depth of the submissions made and my comments upon them as I brought them to mind. 2. I accept that the Corporation has proven each of the offences charged for the reasons given, and that the appeals from the convictions therefore fail. Orders 1. In respect of each of the Sequences, One through to and including Sequence Seven I dismiss the appeals from conviction. ********** Endnotes 1. 69 False statements and representations (1) A person must not wilfully make any false statement or representation: (a) to obtain or claim from the Corporation accommodation or a rental rebate, or any other advantage or concession, or (b) to deceive any officer or employee of the Corporation in relation to obtaining accommodation or a rental rebate, or any other advantage or concession from the Corporation, or (c) to affect the rate or amount of any rental rebate from the Corporation. Maximum penalty: 3 months imprisonment or 20 penalty units, or both. 2. 69 False statements and representations (1) …. (2) A person must not by means of personation or any other fraudulent device obtain or claim from the Corporation accommodation or any rental rebate or any other advantage or concession. Maximum penalty: 3 months imprisonment or 20 penalty units, or both. 3. 69 False statements and representations (1) … (2) (3) A person: (a) …, or (b) …, or (c) who aids, abets, counsels or procures or by act or omission is directly or indirectly concerned in the commission of such an offence, is guilty in the same degree and liable to the same penalty as the principal offender. 4. At the time s 15(2) provided (2) The Director-General may delegate to an officer of the Department, or to the Corporation, the exercise of any of the Director-General's functions under this Act (including any function delegated to the Director-General under this section), other than this power of delegation. 5. In section 3 of the Act are the following definitions: "Department" means the Department of Human Services. "Director-General" means the Director-General of the Department. 6. P 23 of the interview line 1. 7. 85 Criminal proceedings: reliability of admissions by defendants (1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant— (a) to, or in the presence of, an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence, or (b) as a result of an act of another person who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account— (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and (b) if the admission was made in response to questioning— (i) the nature of the questions and the manner in which they were put, and (ii) the nature of any threat, promise or other inducement made to the person questioned. 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if— (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, …is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning— (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 8. 183 Brief of evidence to be served on accused person where not guilty plea (1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence. (2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include— (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit. (3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution. (4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it. 9. Subject to the discretion in sub sections 187(4) and 188(2) 187 When brief of evidence need not be served (1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied— (a) that there are compelling reasons for not requiring service, or (b) that it could not reasonably be served on the accused person. (2) The court may make an order under this section on its own initiative or on the application of any party. (3) An order may be made subject to any conditions that the court thinks fit. (4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence. (5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations. 188 Evidence not to be admitted (1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor. (2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable. 10. I do not accept this characterisation. The question is not what she was not asked, but what she was asked and whether her responses were true and accurate or deliberately false. 11. I find this to be a rather narrow construction considering the responses given by the Appellant in her interview and in the documents she provided as outlined in the Respondent's submissions. 12. 69 Failure to notify of change of circumstances (1) A person must not, with the intention of retaining or continuing to obtain a benefit to which the person knows that he or she is not entitled, fail to notify the Corporation of any relevant change of circumstances within the time specified in subsection (2). Maximum penalty: 3 months imprisonment or 20 penalty units, or both. (2) The Corporation must be notified under subsection (1) within 28 days after the person first becomes aware of the relevant change of circumstances. (3) In this section: "benefit" means any accommodation, rental rebate or any other advantage or concession from the Corporation. "relevant change of circumstances" means a change in the person's circumstances that will remove or reduce the person's entitlement to a benefit. 13. See also s 51(1)(e) and s 72A Residential Tenancies Act 14. Cf, Diab, [31] (Macfarlan JA, with whom Beazley P agreed). 15. Transcript, 30 July 2018 page.87.30. 16. Transcript 2 April 2019, page.46.29-31. 17. Transcript 2.April.2019, page 74.4. 18. See interview with Mr Chouman (AB 75): page 13.16. 19. Transcript 2 April.2019, pages 75.10, and 27. See also interview with Mr Chouman: page11.20. 20. Transcript 2.April 2019, page.43; 3 April 2019, page 10.16. 21. Transcript 4 December 2020 page 15.6. 22. Transcript 4 December 2020 page.8.50. 23. Transcript 4 December 2020 page.12.26 24. Transcript 4 December 2020 page.12.22 25. I do not accept that it was necessary to do so. 26. It could not be said though that the steps taken by the Corporation invited anything other than true and accurate representations or justified the deliberate omission of information that ought to have been included. 27. For example, Trial exhibit 16 is the Corporation's Rental Subsidy Fraud Policy which indicates that rent rebates can be cancelled or varied for housing fraud or material non-disclosure of information. A copy of this documents is at tab 10, page 123 of the Respondent's Appeal Book. 28. Chouman evidence in chief transcript 27 September 2019 pagesp34:8-36:45. 29. See for example T25.7.18 p 80:23-27. 30. Transcript 14 June 2017 pages 2:20-7:41. 31. Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. 32. See for example Transcript 4 May 2016 pages 86, and 2 March 2017 pages 85-87 and 1 April 2019 p 81. 33. Cureton affidavit of 1.3.17 annexure C. 34. Cureton affidavit of 1.3.17 annexure B. 35. Transcript 14 June. 2017 pages 2:33-4:1. 36. The Appellant's daughter was throughout the tenancy an additional occupant authorised by the Corporation to occupy the Property. 37. Tenancy Fraud Unit. 38. The audio recording of the ERISP is provided together with the Respondent's Appeal Book 18. 39. Cundletown and Wingham are locations neighbouring Taree. 40. Transcript 8 September 2016 page 2. NC's solicitor noted that objection was taken to those bank statements. 41. Transcript 4 May 2017 pages 4.5.17 and 21. 42. Transcript 18 September 2017 pages 11-59, 20 September 2017 pages 1-34, 21 September 2017 pages 1-32 and reasons for ruling on 13 November 2017 pages 1-9. 43. See transcript 20 September 2017 page 3. 44. Transcript 18 September 2017 page 11-59, 20 September 2017 pages 1-34, 21 September 2017 pages 1-32 and reasons for ruling on 13 November 2017 pp 1-9. 45. NC was still represented by his solicitor at that time. His solicitor took ill and ceased to act at a later time. 46. The ERISP was not admitted into evidence against NC and KG. It was only admitted into evidence in the case against the Appellant. 47. See Rental Subsidy Fraud Policy, Trial exhibit 16, at tab 10, page 123 of the Respondent's Appeal Book. 48. Respondent's Appeal Book tab 17, page 673. 49. Transcript 30.July.2018 pages 68:34-46. 50. Transcript 30.July.2018 page 85. 51. Transcript 30.July.2018 pages 87-88. 52. Transcript 25 July 2018 page 95. 53. Transcript 26 July 2018 pages 5-6. But at pages 5 and 10 Ms Willingham said it is against the Greater Bank's terms and conditions for a cardholder to give their card to other persons to use. 54. Transcript 30 July 2018 page 65. 55. Transcript 2 July 2019 pages 7:10-40. 56. Transcript 2 July 2019 pages 13:1-33. 57. Transcript 2 July 2019 pages 3, 8-10 and 13. 58. Transcript 2 April 2019 pages 75-76 (the Appellant's evidence in chief). 59. Transcript 2 April 2019 pages 46-47. 60. Transcript 2 July 2019 pages 14.9-15.23. 61. Transcript 2 July 2019 pages 11-14. 62. Transcript 2 July 2019 pages 15.15-23. Amendments 07 July 2023 - Name of counsel for the Respondent corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023