REGINA v. CLOGHER [1999] NSWCCA 397

New South Wales Court of Criminal Appeal CITATION : REGINA v. CLOGHER [1999] NSWCCA 397 FILE NUMBER(S) : CCA 60415 of 1998 HEARING DATE(S) : Wednesday 8 December 1999 JUDGMENT DATE : 8 December 1999

PARTIES : REGINA v. CLOGHER, Sandra JUDGMENT OF : Meagher JA at 25; Newman J at 26; Greg James J at 1

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

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

IN THE COURT OF CRIMINAL APPEAL

No. 60415 of 1998 CORAM: MEAGHER, JA. NEWMAN, J. GREG JAMES, J.

WEDNESDAY 8 DECEMBER 1999

REGINA v. SANDRA CLOGHER

JUDGMENT

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