New South Wales District Court CITATION: Pride v The Queen [2010] NSWDC 191 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 12 August 2010 JUDGMENT DATE: 19 August 2010 JURISDICTION: Criminal JUDGMENT OF: Walmsley SC DCJ DECISION: Appeal allowed. Conviction and sentence set aside. CATCHWORDS: CRIMINAL LAW > Fraudulently or deceptively obtaining money, valuable, financial benefit or advantage from Centrelink > s 135.2 Criminal Code Act, 1995 (Cth) > Omission to report changed circumstances > Whether section creates offence by way of omission > Offence charged not known to law - DOCTRINE OF PRECEDENT> Commonwealth legislation > Decision of interstate intermediate appellate court > NSW District Court bound unless plainly wrong Criminal Code Act, 1995 (Cth) LEGISLATION CITED: Social Security (Administration) Act 1999 (Cth) Social Security Act 1964 (NZ) CASES CITED: Poniatowska v Commonwealth Director of Public Prosecutions (Cth) [2010] SASCFC 19 (2 August 2010). Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. FILE NUMBER(S): 2009/00211007 Appellant - Mr S Hodges SOLICITORS: Crown - Ms R Ogden 1. On 9 April 2010 the appellant, Ms Pride, was convicted in the Local Court at the Downing Centre, of two counts, contrary to the provisions of s 135.2(1) Criminal Code Act, 1995 (Cth). 2. Both counts concern her receipt of Centrelink payments, namely the Youth Allowance, to which she was not entitled. She was not entitled to the allowance because of earnings from several jobs she had at relevant times. 3. Sequence 1 in the Court Attendance Notice gives details of the first offence as follows: Description of Offence: Time and Date of Offence: Engage in conduct to obtain a financial advantage from a Commonwealth entity Places of Offence: Between about 4 February 2005 and about 4 March 2005 Short Particulars Sydney and elsewhere in New South Wales Did engage in conduct and as a result of that conduct obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency, knowing or believing that she was not eligible to receive that financial advantage, namely that part of Youth Allowance to which she was not entitled, because she was in receipt of income from Likare Pty Ltd, trading as Bins Variety Discount Store. S. 135.2(1) Criminal Code Act 1995 (Cth) 50616 Statutory Provision Describing Offence: Law Part Code: 4. Sequence 2 is as follows Description of Offence: Time and Date of Offence: Engage in conduct to obtain a financial advantage from a Commonwealth entity Places of Offence: Between about 3 March 2005 and about 24 November 2006 Short Particulars Sydney and elsewhere in New South Wales Did engage in conduct and as a result of that conduct obtained a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency, knowing or believing that she was not eligible to receive that financial advantage, namely that part of Youth Allowance to which she was not entitled, because she was in receipt of income. S. 135.2(1) Criminal Code Act 1995 (Cth) 50616 Statutory Provision Describing Offence: Law Part Code: 5. Before the Local Court the Crown called evidence about her employment at relevant times. Mr Sopher had Bins shops at Warriewood and Charlestown. He employed the appellant from April 2003 till March 2005. The bookkeeper from Flair Catering Pty Ltd told the Local Court the appellant had worked for that company from 20 August 2005 until 30 November 2007. The payroll coordinator from Javit Pty Ltd said that that company had employed the appellant from 5 July 2005 until 25 January 2007. Relevant pay records from all those employers were in evidence. 6. A fraud investigator from Centrelink, Mr Moore, gave formal evidence about the appellant's dealings with Centrelink. It appears she signed an application for the Youth Allowance on 19 February 2003. She was required in that form to give her tax file number. An explanation was given in the application for this requirement: "Centrelink is committed to providing people with the support that is needed. To do this, we need to be sure that only those who should be paid are paid, and that they receive the right amount of money. This done by data matching with the Australian Taxation Office and other government departments that pay benefits. To do this matching, we need to know your (and your partner's if you have one) Tax File Number(s). You are not breaking the law if you don't give Centrelink your (or your partner's) Tax File Number(s), but if you don't give it to us within twenty eight days from the date of your claim, or authorise us to get it from the Australian Taxation Office, you will not be paid. Once we have recorded the Tax File Number(s), the details will be detached from your claim form and destroyed. No one can then look at your (or your partner's) Tax File Number(s) on Centrelink's computer system or on your file papers. This also means that if you lose or forget your Tax File Number(s) we cannot tell you what your number is. The data matching is authorised under the Data matching Program (Assistance and Tax) Act 1990. The authority to request your (and your partner's) tax File Number(s) is contained in section 75 of the Social Security (Administration) Act 1999." 7. She was also required to give full details of income and assets. Above her signature appeared a declaration by the appellant saying inter alia: "I will notify Centrelink of any changes to this information within fourteen days of the change occurring." Centrelink wrote to her on 10 April 2003 to say she was no longer required to lodge applications for payment forms each fortnight, something she had been obliged to do till then. 8. The appellant contacted Centrelink on 14 April 2003 to say she had begun to work part time for Bins. She did not know what she would be paid but said she would earn under $236 per fortnight. She was unsure of the gross amount to be paid so she was advised to ring back with the amount. But she did not do so. On 3 September 2003 Centrelink sent her a small cheque with arrears of $102.10. After that there was no contact between Centrelink and the appellant for almost three years, save that the appellant continued in that time to receive the Youth Allowance. Eventually Centrelink learned through matching data, that she had earned sums disqualifying her for payments at certain times when she had been employed. These proceedings were then commenced. 9. The appellant did not give evidence at the Local Court hearing. By reason of concessions made there on the appellant's behalf, the only issue in contention was the state of her knowledge at relevant times, that is, whether she knew or believed she was not then entitled to receive a financial advantage, viz the Youth Allowance, to which she was not entitled, because of her receipt of income. It was not in issue that on several occasions in early 2003 the appellant had received letters from Centrelink reminding her she had an obligation to tell Centrelink if she should earn more than $236 per fortnight. Nor was it contested that, at times while she received Centrelink payments, the appellant had earned more than that, and had failed to notify Centrelink of that fact. 10. Mr Hodges submitted to Magistrate Hawdon that she would not find proved beyond reasonable doubt that his client knew or believed she was not entitled to receive the Centrelink payments. He relied before her (as he did before me) on inter alia these facts: (a) she was told in the application form data matching would occur using her tax file number (b) she was told by Centrelink on 10 April 2003 she no longer had to submit forms notifying her current position (c) she had in fact on 14 April 2003 contacted Centrelink to report her earnings even though she had been told she was no longer required to lodge updating forms. (d) no letters had been sent to her by Centrelink for over three years, and when letters had been sent, from February to April 2003, she had responded to them appropriately 11. The learned Magistrate found the offences proved, and proceeded to convict and sentence her. 12. Before me last Thursday Mr Hodges relied on the same arguments concerning his client's state of knowledge and submitted I would not find either offence proved beyond reasonable doubt. 13. Before me, Mr Hodges took a point he had not taken in the Local Court. He submitted these were offences by omission, and the relevant section neither contained nor created any legal obligation. So the offences alleged were not known to law. He relied on a decision of the Full Court of the Supreme Court of South Australia, Poniatowska v Commonwealth Director of Public Prosecutions (Cth) [2010] SASCFC 19 (2 August 2010). There the prosecution was also under s 135.2(1) Criminal Code. There it had also been alleged the recipient of a pension (there a "Parenting Payment Single") had been in breach of reporting obligations while receiving Centrelink payments. She had pleaded guilty to the seventeen relevant counts. She had been convicted and sentenced to suspended terms of imprisonment. She had appealed to a single judge of the Supreme Court of South Australia against the recording of convictions. The appeal had been dismissed. She had appealed to the Full Court, initially against sentence. Then she had filed an appeal against conviction on the ground that the complaint had been defective as not disclosing a known offence. The substance of the argument was that s 135.2 of the Criminal Code does not create an offence which can be committed by omission: the appellant there could not have been convicted of an offence under s 135.2(1) by omitting to advise Centrelink of changes in her financial circumstances. By majority (Doyle CJ, Duggan J; Sulan J dissenting) the court allowed the appeal against the convictions. At paragraphs [12] to [18] their Honours said: "12 The essence of the offence created by s 135.2 is the obtaining of a financial advantage with the fault elements which are applicable under s 5 of the Code . In light of the definition of "engage in conduct" in s 4.1 of the Code and the stipulation in s 135.2 that "engages in conduct" constitutes a physical element of the offence created by that section, it must be acknowledged that an offence under this provision can be committed by means of an omission. 13 However, it is well established that there can be no criminal liability for an omission unless the alleged conduct constitutes a failure to perform a legal obligation. In R v Iannelli , the New South Wales Court of Criminal Appeal quashed the conviction of the appellant who had been found guilty of being knowingly concerned in the commission by two companies of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) by failing to pay tax instalment deductions to the Commissioner of Taxation. Handley JA said: These convictions therefore depend essentially on omissions. Criminal liability for mere omissions in Anglo-Australian law is exceptional unless it has been expressly imposed by statute. Glanville Williams, Criminal Law. The General Part , 2nd ed (1961) London, Stevens & Sons Ltd, at 3–5 states: "In some instances an omission will create criminal responsibility without any positive act ... In law, as in morals, the concept of culpable omission presupposes a duty to act; and a rule penalising an omission must state to whom this duty belongs ... the criminal law does not impose a duty upon someone to act to prevent a consequence whenever it imposes a duty not to bring about the consequence. The law relating to omissions is not co-extensive with the law relating to acts. It is partly coincident in manslaughter and murder, but here the event of death leads the law to look upon the omission with special severity. Most crimes, particularly those at common law, are defined to need a positive act ... ." Lord Hailsham, ed, Halsbury's Laws of England , 4th ed, Vol 11 (1976) London, Butterworths, at 15 is to the same effect: " 9. Omissions. As a rule the criminal law imposes no obligation on persons to act so as to prevent the occurrence of harm or wrongdoing. There is no general duty to prevent the commission of crime; nor does a person commit a crime or become a party to it solely because he might reasonably have prevented its commission. Omission to act in a particular way will give rise to criminal liability only where a duty so to act arises at common law or is imposed by statute. Such a duty is exceptional and the criminal law does not ordinarily require a man to be his brother's keeper." 14 In Nicholson v The Department of Social Welfare , the New Zealand Court of Appeal discussed the effect of s 127 of the Social Security Act 1964 (NZ) which makes it an offence for a person to do or say anything or omit to do or say anything for the purpose of misleading an officer of the relevant department for the purpose of receiving or continuing to receive a social welfare benefit. Richardson P and Keith J said in their judgment: In the context of s 127, the relevant "omission" must consist of a failure to comply with some legal obligation. An omission is simply "The neglect to perform what the law requires" ( Black's Law Dictionary (5th ed, 1979)); "[a] crime can be committed by omission, but there can be no omission in law in the absence of a duty to act" (Glanville Williams, Textbook of Criminal Law (2nd ed, 1983) at p 148). We can find no relevant obligation in this case, for reasons relating both to the general law and to the particular statute. 15 It would seem that the Code incorporates this principle. The Model Criminal Code Officers Committee Report on Chapter 2 of the Code states: Clearly, the physical element of an offence constituted by conduct can include conduct constituted wholly by an omission to act. However, the Committee accepted the common law and Griffith Code position that omissions attract liability only if the statute creating the offence explicitly says so, or the omission was in breach of a legal duty to act. It will be necessary for P to prove that the omission was accompanied by any relevant fault element. The circumstances in which there is a legal duty to act will be set out in the relevant offence provisions. 16 As previously stated, it is our view that an omission to perform an act can constitute a physical element of an offence under s 135.2. However, the definition of "engage in conduct" which includes an omission to perform an act does not overcome the requirement that the conduct charged must be an omission to carry out an obligation imposed by law. It is necessary to identify a relevant duty or obligation arising under the general law or statute before enquiring whether there has been a breach by way of omission. 17 In the present case it is necessary to determine whether the alleged omission is of such a nature as to be capable of constituting an element of the offence. This in turn will require the identification of a relevant duty or obligation. Here the duty or obligation can only arise under s 135.2 itself or under some other Federal statutory provision. 18 The only relevant statute in this case is the Social Security (Administration) Act 1999 (Cth) ("the Administration Act "). Division 6 Sub Division B of the Administration Act provides various mechanisms aimed at ensuring that persons in receipt of social security payments provide information on matters which may affect the entitlement to, or level of, such payments. Section 67 of the Administration Act authorises the department to issue a notice in writing requiring a recipient to inform the department if there is a change in the circumstances of the recipient. Other provisions include the power to require attendance of recipients at departmental interviews. Section 74 of the Administration Act provides that the refusal or failure to comply with such notices constitutes an offence punishable by imprisonment for six months." (Citations omitted) 14. (It was common ground here that no notice of the type described by their Honours in paragraph [18] had been served on the appellant by Centrelink). At [38] to [39] their Honours said: "In summary, we are of the view that s 135.2 does not define any duty or obligation relevant to an offence committed by way of an omission. The DPP does not rely on any notice issued to the appellant for the purpose of establishing such a duty; nor was it suggested that the duty was to be found elsewhere in the Administration Act . The approach of the Administration Act is to provide for the issuing of notices by the department requiring information and to impose a penalty punishable by imprisonment for a failure to comply with such notices. The Administration Act does not create a separate "stand alone" obligation. We have explained why we consider that s 135.2 does not impose a relevant obligation. It follows that the appellant could not, in law, have been convicted of the offences charged in the complaint and this Court should set aside the convictions which were recorded following the pleas of guilty." (Citations omitted) 15. I took Ms Ogden for the Commonwealth Director of Public Prosecutions to concede that if I followed the majority in Poniatowska, the convictions must be set aside. But she urged me to adopt the view of the minority judge, noting, inter alia, he had adopted a purposive approach to the Criminal Code. 16. In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 the High Court (Mason CJ, Brennan, Dawson, Toohey, Gaudron JJ) said: "[A]n intermediate appellate court -- and even more a single judge -- should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong." A fortiori a judge of the District Court must not depart from such an interpretation, unless convinced (which I am not) the interpretation is plainly wrong. 17. It follows that the appeal against convictions must succeed. The Court Attendance Notices disclosed no offences known to law. The various letters sent to the appellant created no relevant legal duties or obligations. Nor did the application. 18. As I have found the offences were not known to law, I do not consider it necessary to deal with Mr Hodge's other arguments. 19. When, late in the course of argument, the ramifications of my being obliged to apply the majority view in Poniatowska became apparent, Ms Ogden asked that I defer the further hearing of the matter until the Commonwealth Director of Public Prosecutions had considered whether to appeal in Poniatowska. I was told no leave application had been lodged. Mr Hodges opposed the application to adjourn the matter. The appellant has qualifications in neuropsychology and wishes to travel and work abroad. The convictions have impeded and if not set aside will impede her in various significant ways, such as preventing her from obtaining visas for certain countries. In view of the possible delay and its effects on her, and the fact the appeal hearing was well advanced when the application was made, I declined to grant the adjournment. Orders In each case: Appeal allowed. Conviction and sentence set aside. 16/09/2010 - Typographical Error - Paragraph(s) 16 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.