New South Wales Court of Criminal Appeal CITATION: Evans v Regina [2006] NSWCCA 349 HEARING DATE(S): 12 October 2006 JUDGMENT DATE: 3 November 2006 JUDGMENT OF: Tobias JA at 1; Grove J at 48; Bell J at 49 DECISION: (a) Appeal against conviction dismissed; (b) Grant leave to appeal against sentence but dismiss the appeal CATCHWORDS: CRIMINAL LAW – appeal against conviction and sentence – fraudulent receipt of Commonwealth benefits – form of grounds of appeal LEGISLATION CITED: Crimes Act 1914 Criminal Code CASES CITED: None PARTIES: Greg Evans Regina FILE NUMBER(S): CCA 2006/1534 CCAP COUNSEL: A: Self-represented R: G Bellew SC SOLICITORS: A: Self-represented R: Commonwealth Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0026 LOWER COURT JUDICIAL OFFICER: G D Woods LOWER COURT DATE OF DECISION: 12 August 2006 IN THE COURT OF CRIMINAL APPEAL CCP 2006/1534 TOBIAS JA GROVE J BELL J Friday 3 November 2006 GREG EVANS v REGINA Judgment 1 TOBIAS JA: On 14 July 2004 the appellant pleaded not guilty before his Honour Judge Woods and a jury to an Indictment containing the following counts: 1. That he, between about 14 August 1985 and 23 May 2001, at Sydney and elsewhere in the State of New South Wales, did defraud the Commonwealth in that he obtained benefits in the name of Greg Evans to which he was not entitled as he was also in receipt of benefits in the name of Gregory Evangelatos. 2. That he, between about 24 May 2001 and 12 October 2001, at Sydney and elsewhere in the state of New South Wales did dishonestly cause a loss to another person which a Commonwealth entity, namely the Commonwealth Service Delivery Agency, in that he obtained a disability support pension in the name of Greg Evans to which he was not entitled as he was also in receipt of a disability support pension in the name of Greg Evangelatos, knowing that such loss would occur. 2 The appellant was found guilty by the jury of both counts on 13 August 2004. On 20 September 2004 he was sentenced by the trial judge on the first count to a term of imprisonment of 28 months but to be released after serving a period of 12 months imprisonment upon condition that he enter into a bond to be of good behaviour for a period of 16 months after that date. On the second count he was sentenced to imprisonment for one month, such sentence to be served concurrently with the sentence on the first count. 3 The inclusion of Count 2 in the Indictment was brought about by the repeal of various provisions of the Crimes Act 1914, and their replacement by similar provisions in the Criminal Code. The actions of the appellant, which gave rise to the charges, were committed over a continuous period from 15 August 1985 to 12 October 2001. The Crown case 4 The appellant was born in Greece on 15 May 1945 and migrated to Australia on 29 July 1954, at which time he was known as Gregoire Evangelatos. He subsequently adopted the name of "Greg Evans". 5 On or about the 10 November 1980, the appellant lodged a claim for, and was subsequently granted, a Supporting Parents Benefit with the Department of Social Security in the name of Gregory Evangelatos. Thereafter, he continued in receipt of various pensions, benefits and allowances in that name as follows: Payment Name Paid Date Paid Date Paid Type Under From: To Supporting Parent's Gregory 10.11.1980 19.10.1983 Benefit EVANGELATOS Invalid Pension Gregory 20.10.1983 11.11.1991 EVANGELATOS Disability Support Gregory 12.11.1991 09.10.2001 Pension EVANGELATOS 6 On about 20 June 1985, the appellant lodged a claim for, and was granted, a Sickness Benefit by the Department of Social Security in the name of Greg Evans. Thereafter, up until the time of his arrest on 9 October 2001, he continued in receipt of various pensions, benefits and allowances in that name as follows: Payment Name paid Date paid Date paid Reason for type under from to suspension/ cancellation Sickness Benefit Greg EVANS 20.06.1985 26.06.1991 Benefit Transfer (Married Rate) Sickness Allowance Greg EVANS 27.06.1991 30.08.1991 Benefit Transfer (Married Rate) Jobsearch Allowance Greg EVANS 02.09.1991 07.07.1993 Benefit Transfer (Married Rate) Sickness Allowance Greg EVANS 08.07.1993 29.09.1993 Benefit Transfer (Married Rate) Newstart Allowance Greg EVANS 30.09.1993 10.11.1993 Benefit Transfer (Married Rate) Partner Greg EVANS 15.09.1994 22.06.1995 Benefit Transfer Allowance Parenting Greg EVANS 23.06.1995 20.07.1995 Benefit Transfer Allowance Special Greg EVANS 16.10.1995 10.11.1995 Benefit Transfer Benefit Disability Greg EVANS 30.06.1995 09.10.2001 Cancelled - Loss of Support Pension Qualification 7 The Crown case was that the appellant had no entitlement to any of the benefits, allowances or pensions paid in the name of Greg Evans as he was, at the same time, in receipt of payments in the name Gregory Evangelatos. He received payments under the name of Greg Evans for a period of 16 years and 4 months totalling $164,721.30. 8 On 12 October 2001, Federal Police agents executed a search warrant on the appellant's residence at 24 Ti-tree Avenue, Bogangar, in northern NSW. A large amount of documentation and correspondence relating to the persons Greg Evans and Gregory Evangelatos was seized pursuant to that warrant, including: (i) An Australian Passport in the name of Greg Evans along with a Greek Passport in the name of Gregory Evangelatos; (ii) Correspondence from the Centrelink in the names of Greg Evans and Gregory Evangelatos; (iii) 13 pages of Westpac Classic Account 55-2639 in the names Gregory and Nafisah Evangelatos (being the account into which the Evangelatos pension was paid); (iv) A Marriage Certificate in the names Gregory Evangelatos and Nafisah Wongso dated 20/12/86; (v) A blue diary in the name of Greg Evans; (vi) A prescription in the name of Gregory Evangelatos; (vii) A Commonwealth Bank Statement in the name of Greg Evans (being a statement in relation to the account into which the Greg Evans pension was paid); (viii) Copies of Applications for advanced payment made to Centrelink in the name Gregory Evangelatos; (ix) Correspondence from Centrelink to Greg Evans; (x) Documents relating to an account with the National Australia Bank into which payments were made in the name of Greg Evans; (xi) Correspondence from Dr Paul Humphrey addressed to Dr Paul Ong regarding Gregory Evangelatos (Dr Ong having provided a medical report at the time of a Centrelink Review of the disability support pension made in the name of Gregory Evangelatos). 9 A principal issue at the trial was whether the Crown was able to establish that "Greg Evans" and "Gregory Evangelatos" were one and the same person. In the course of his closing address to the jury (at AB4/1005) counsel for the appellant said: "Ladies and gentlemen, as I understand the Crown case and I don't think there's any real problem with this in your mind, that the accused who's in the dock over there, Greg Evans, claimed and received benefits in the name of Greg Evans between 1985 and 2001. The accused concedes that and we don't take any issue in that point. The Crown alleges that this is the fraud, it's the Greg Evans claim which is between '85 and 2001 that the Crown alleges is the fraud. And the reason why the Crown makes that allegation is because during that period, that is between 1985 and 2001 the accused was in receipt of, had claimed and was in receipt of a benefit under the name of Gregory Evangelatos. So that's the dual claim. Now as / understand the Crown case the accused was entitled to the benefit to Gregory Evangelatos. He's not entitled to the Greg Evans claim. Now and it's essentially the Gregory Evangelatos claim and benefits that we take issue with". 10 Subsequently counsel for the appellant (at AB4/1006) said to the jury: "Now he says, the accused, that form 1985 he obtained a benefit from Centrelink in the name, in his name, Greg Evans, that was his legal name at the time and he says that he was entitled to that. And he says the reason why he tells you that in his view he was entitled to that benefit is because from 1980 onwards he did not claim or receive any benefits in the name of Gregory Evangelatos". … So the real issue I would suggest to you in this trial and that is as deciders of the facts because that's your task to decide the facts in this matter is whether or not the accused received a benefit from 1985 to 2001 under the name of Gregory Evangelatos, that / would suggest to you is the real issue in this trial". 11 Counsel for the appellant then addressed the jury (at AB 4/1014) to the effect that it was in fact a group of Federal police officers who had made the original application for the payment of benefits in the name of Gregory Evangelatos, and that they controlled the operation of the bank account into which those benefits were paid at all times thereafter. His Honour summarized the defence case in this respect (at SU 17) as follows: "The two identities, Evans, Evangelatos and his use of the Evangelatos account. On the Crown case he was receiving benefits in the name of Greg Evans but he was not entitled to because he was also receiving benefits in the name of Gregory Evangelatos. In the defence case, of course, he says that that account originated out of his original connections with police and their use of him as an agent of some kind". 12 In support of its case that Greg Evans and Gregory Evangelatos were the one person, and in addition to the material seized pursuant to the warrant and set out in [10] above, the Crown relied upon the following evidence: (i) surveillance evidence of the Appellant making a withdrawal of $685.00 on 27 September 2001 from an account with the Westpac Banking Corporation in the name of Gregory and Nafisah Evangelatos, that being the same account into which the pension in the name of Gregory Evangelatos was paid; (ii) evidence from an officer of the Westpac Banking Corporation that on 26 July 1999, at the Bank's Murwillumbah Branch, the Appellant deposited a cheque made out to "Greg Evans" into an account in the name of Gregory. Evangelatos; (iii) evidence that on an application for an Australian Passport made on 5 July 1995 in the name of Greg Evans, the Appellant stated that the name appearing on his Certificate of Citizenship was Gregoire Evangelatos; (iv) evidence that on 20 March 1989 the Appellant lodged with the NSW Land Titles Office an instrument evidencing a change of name in respect of his son and in doing so, stated that his name was Greg Evans and that his son Adam Gregoire Evangelatos wished to abandon the use of that name and be known under the name of Adam Greg Evans; (v) evidence that the birth of persons named Nicholas Evans and Nicholas Angelo Evangelatos, which were registered on 14 January 1986 and 24 January 1986, contained the following similarities: Nicholas Evans Nicholas Evangelatos Date of birth 28 November 1985 29 November 1985 Mother June Evans Nafisa Evangelatos Born Singapore Born Singapore Greg Evans Gregory Evangelatos Father 40 years old 40 Years old Born: Athens Born Athens Marriage of parents 9 February 1982 9 February 1982 Newcastle, NSW Singapore (vi) evidence that on 9 February 1982 a marriage was recorded as having taken place between Greg Evans and Nasipa June Asis at Hamilton in NSW that that on 20 December 1986 a marriage was recorded as having taken place between Gregory Evangelatos and Nafisah Wongso, the respective Certificates of Marriage containing the following similarities: 1982 Evans marriage 1986 Evangelatos marriage Birthplace of groom Athens Athens 15 May 1945 15 May 1945 Date of birth of groom Gerasimos Evangelatos Gerry Evangelatos Father's name of groom Date of birth of wife 17 November 1949 17 November 1952 13 In addition, the Crown relied upon the evidence of a handwriting expert, Ms Michelle Novotny, who examined a selection of documents lodged with Centrelink under the names Greg Evans and Gregory Evangelatos. Whilst in some cases Ms Novotny was unable to reach any definitive conclusion as to authorship, she was able to state that in some instances it was likely that the relevant signatures were made by the one person. The appeal against conviction 14 The Court was provided with a document headed "GROUND OF APPEALS" filed on 29 June 2006. It comprised 30 pages together with an annexure being a letter to the appellant from his solicitors dated 19 August 2004 in which he was advised that the jury's decision in all the circumstances was unsafe. The letter then set out some 17 grounds of appeal, the last of which contained ten sub-grounds. Those so-called grounds of appeal were not in truth grounds of appeal but constituted reasons why, if accepted, it might be argued that the jury's decision was unsafe. 15 However, it is clear that each of the 17 matters referred to by the solicitors were advanced to the jury by the appellant's counsel at trial and formed part of the defence case. The trial judge confirmed as much in his summing up. 16 For example, Items 7 and 9 in the solicitor's referred to a deficiency in Westpac's documentation between 1980 and 1989, a matter which his Honour addressed in his summing up (at SU 13) in the following terms: "The fact that there are no Westpac Bank statements available between 1980 and 1989 leaves an important gap covering a significant period in Count 1. In particular, such records could possibly have shown, or not shown, withdrawals while the accused was overseas in 1989. I repeat that there are real problems with the defence in the present case of increasing importance the further backwards in time one goes from 12 October 2001, the most recent date in the indictment." 17 A further example was the assertion in Item 10 of the letter that there was no evidence before the court regarding identification of the appellant as the person who attended various offices of the Department of Social Security or Centrelink. In this respect his Honour noted in his summing up (at SU 13) that "Furthermore, front counter public servants have not been called to give evidence about the various times the accused did, on the Crown case, attend at government offices to obtain benefits or fill in forms." 18 Later in his summing up (at SU 34) the trial judge noted that the appellant's counsel in his address had pointed out that "the Crown has not brought forward anybody from behind the counter, so to speak, to say he is the man, this is the man we paid over money over the counter from the Commonwealth government to this man." 19 Again, towards the end of his summing up his Honour (at SU 39) reminded the jury that the appellant's counsel had "put to you that it is significant that, in addition to the fact that the Crown has not presented anybody from the counter, the front counter, to say they handed money over to this fellow, the accused, they have not called anybody to explain what this Asian or Eurasian policewoman may have been doing. And he says to you that you would expect that, the Crown having the onus of proof, this would have been cleared up by clear evidence from the Crown." 20 A reading of the "Ground of appeals" document prepared on behalf of the appellant (who is illiterate) reveals that the assertions contained in it are a repeat of the very matters upon which he gave evidence at the trial and/or in respect of which his counsel addressed the jury for the purpose of persuading them that there were many gaps and other faults in the Crown's case. 21 Time and again in the document the appellant asserts that the Australian Federal Police intimidated him into signing documents against his will and that he had no knowledge of the contents of the documents he was required to sign as he was unable to either read or write. 22 Consistent with his evidence in chief before the jury, the document contains assertions that he was harassed by the police and forced to sign documents and that the Crown had failed to produce evidence particularly from employees of the Department of Social Security as well as from police officers which the jury should have expected to have been called. 23 A reading of the trial judge's comprehensive summing up makes it more than apparent that he put before the jury in some detail the case which the appellant sought to make with respect to the matter, the subject of the charges. Thus his Honour directed the jury in these terms (at SU 26): "The Indictment requires that he obtain benefits. It is not enough that there was an account in his name. If he did not obtain the benefit then the charge is not made out. He has no difficulty with conceding to you that he was getting payments under the name of Greg Evans [to] which he was entitled but he disputes the Evangelatos connection. He told you in his evidence that many of the document[s] which are before the Court as evidence were signed by him but were signed by him under police influence. Some signatures he denies, but where admits claims and other documents that he signed he tells you that there was a police involvement." 24 Again, his Honour fairly put to the jury the appellant's case when he directed them in the following terms (at SU 28): "And it was the police who took him along to get the change of name, the deed poll, in Hindley Street, Adelaide and police took him to the bank and the police have, in effect, been operating the account ever since. And it may be, he being a fellow who cannot read, that various documents have been presented to the government authorities regarding pensions. Police have pressured him to do this. And that effectively, from 1982 or so until 2001 police were not only keeping contact with him, they were using him, you might think, as an informant in relation to the drug matter and that they had had the benefit of the account. He denied, you may remember, repeatedly denied connection with the addresses, the post box numbers and the various Balmain address[es] and so on. He said 'I don't – they weren't my addresses'. So you may think on the defence case, what has happened is, that police have used him as an agent for what he at the time regarded as honourable purposes and police have used him as a mechanism for supplementing their police income. That, on the defence case, that this is to be seen as (although you may think initially improbable) an example of the kinds of police corruption which have been revealed in the last ten or fifteen years, some extraordinary instances of police corruption. And on the defence case that is what has occurred here, that these police have pressured him and pushed him around. He has been going from place to place collecting a pension as Greg Evans." 25 Again, towards the end of his summing up, the trial judge said (at SU 36): "The inference which Mr O'Sullivan would no doubt advance is that there was some sort of peculiar, odd or corrupt police involvement in this matter, otherwise it would have been cleared up. He says you would reject Mr Morley's evidence, he is retired, the evens are twenty years ago. He does say that there was a Eurasian female police officer. That is the police officer's evidence and that is, of course, what the accused says. … The benefits claim was being used by police for their own private purposes and, for some reason or another, the matter just continued. He just did what he was told. … The people using the account could have been anyone with personal details of the accused because, he points out, there is no clear evidence that, at least historically, proper identification was required from people when they went along to the Commonwealth pension department, under whichever name it went at that time." 26 At the end of his summing up the trial judge asked the appellant's counsel (in the absence of the jury) whether there were any further directions he should make and received a negative answer. In my opinion, one cannot fault his Honour's summing up and there is nothing in the appellant's material before this Court that makes any real attempt to do so. It seems to me that the very matters which the appellant relies on in his "Ground of appeals" document as constituting failings on the part of the prosecution were all dealt with in detail by the trial judge in his summing up and in a manner which, if anything, was favourable to the appellant. 27 Accordingly, subject to what follows, none of the so-called grounds referred to in the appellant's document demonstrated any error on the part of the trial judge that would justify appellate intervention on the basis alleged by the appellant that he did not receive a fair trial. 28 Apart from the foregoing, the Crown's written submissions identified the following issues as possibly arising out of the appellant's "Ground of appeals" document as constituting true grounds of appeal. Relevantly, they are as follows: (a) The reliability of the handwriting expert's evidence relied upon by the Crown; (b) The disclosure by the appellant's wife in the course of giving evidence that she had stood trial for similar offences and the failure of the trial judge to discharge the jury as a consequence of that reference; (c) The failure of the trial judge to discharge the jury upon a request being made by one juror to "abstain" from the verdict; and (d) The admissibility of materials seized during execution of the search warrant with respect to the appellant's premises. 29 As to the first matter, the trial judge directed the jury at length on the reliability of the handwriting expert's evidence. He made it clear to the jury that that evidence was not of itself a sufficient basis for a finding of guilty. He spent some three pages of his summing up (at SU 7-9) dealing with that evidence, emphasising to the jury the use to which they could put Ms Novotny's evidence and referring in detail to its reliability. 30 In particular, he reminded the jury (at SU 18-20) that, inter alia, Ms Novotny was not definite in some of the conclusions she reached and that the evidence would not, if considered alone, be sufficient to base a finding of guilty. The appellant's counsel took no issue concerning his Honour's directions with respect to that evidence. 31 As to the second matter relating to the evidence given by the appellant's wife in the defence case, in the course of cross-examination by the Crown she was asked whether she recognised documents contained in Exhibit BT to which she responded, "I was shown during my trial." 32 An application was then made by the appellant's counsel that the jury be discharged upon the basis that as a result of that answer, the jury would realise that she had been on trial on a previous occasion in circumstances relating to the present matter with the result that her credibility would be destroyed. 33 At the time that application was made (9 August 2004), the trial had been in progress for some weeks. His Honour rejected the application and observed that calling Mrs Evans was always going to be a matter of some difficulty and that it had been foreshadowed that it might be necessary for his Honour to caution her in front of the jury about incriminating herself if she answered certain questions asked of her in cross-examination. That in fact came to pass - she repeatedly availed herself of the right to silence during the course of the Crown's cross-examination of her. 34 His Honour concluded that nothing had transpired in the circumstances that was going to prejudice the jury given the range of allegations put to Mrs Evans and her denials of signatures and other matters in circumstances where the Crown's contention that she was in collusion with the appellant must have been apparent. 35 His Honour both on the first day of the trial as well as in his summing up, directed the jury in no uncertain terms that any proceedings involving Mrs Evans were entirely irrelevant to the case involving her husband. The direction was extensive, no objection was taken to it and the appellant's counsel made no request was for any additional directions. 36 The third ground relates to the failure of the trial judge to discharge the jury following an application by one juror to "abstain" from the verdict. After the jurors had retired to consider their verdict, a note was received in the following terms: "One of the jurors would like to know if it is possible for her to abstain from the verdict. She is happy for the remaining jurors to deliver a verdict provided it is understood that this juror is not included in their number. The abstaining juror does not want to be the cause of a repeated court process. Thank you." 37 His Honour expressed the view that the appropriate course was to firstly enquire whether further directions or clarification would assist the jury. The appellant's counsel acquiesced in this course, indicating that he wished to keep all 12 jurors together. When asked whether further assistance was required, the foreperson informed his Honour that it was not. 38 Subsequently, the trial judge expressed further concern about the reference in the note to the abstaining juror "(not wanting) to be the cause of a repeated court process". Having discussed the matter with counsel, his Honour concluded that he would direct the jury that they should "put out of their heads entirely any question of repeated court process". The appellant's counsel also acquiesced to that course. Consequently his Honour directed the jury in detail to that effect. No objection was taken. A reading of those directions (AB 5/1109-111) indicates that they were unexceptional. 39 There are references in the appellant's "Ground of appeals" document and in the letter from his solicitors attached thereto, that the search of the appellant's premises was illegal. Four witnesses gave evidence concerning the search. Although some of the witnesses were challenged in cross-examination, for example about the location of various items seized in the course of the search, no allegation or submission was made by the appellant's counsel that the evidence arising out of the search (and which was admitted into evidence without objection) was illegally or improperly obtained. No basis is to be found in either the appellant's solicitor's letter or in his written submissions for the bare assertion of illegality, which is without any supporting evidence or reasoning. 40 There is one further matter which I should mention and which is raised in the appellant's document. This was a complaint allied with the submission that the trial judge should have discharged the jury as a consequence of Mrs Evans' answer that she had seen certain documents as they had been shown to her at her trial. The submission was that the jury should have been discharged as officers from the Department of Corrective Services had accompanied Mrs Evans into the courtroom and, therefore, the jury would have realised that she was in custody. 41 In my opinion, there is no basis upon which it could be properly asserted that in some way the jury were prejudiced by the fact that Mrs Evans was quite properly accompanied by officers from the Department of Corrective Services. The appellant's counsel made no complaint that she was so accompanied, and no application to discharge the jury was made with respect thereto. In any event, as I have already noted, the primary judge's view with which I concur was that the jury must have been well aware from the nature of Mrs Evans' cross examination and her responses that she was alleged to have been part of the fraud alleged against the appellant. Furthermore, as I have already observed, the trial judge was at pains in his summing up (at SU 10-11) to instruct the jury not only with respect to her answer in cross-examination that she had been shown certain documents during her trial, but also that the appellant was not charged with any misconduct by his wife. 42 In my opinion, therefore, none of the so-called grounds of appeal advanced by the appellant has any substance. His complaints were, in effect, merely repetitive of the case he had made to the jury and which it had rejected. There is nothing in the appellant's submissions which bear on either the manner in which the trial was conducted or on the trial judge's summing up which are capable of supporting his contention that he did not obtain a fair trial. Accordingly, the appellant's challenge to his conviction should be rejected. Appeal against sentence 43 A term of imprisonment of 12 months was imposed on the appellant by his Honour, after which he was released upon entering into a bond to be of good behaviour for a period of 16 months, which will expire on 19 January 2007. 44 The appellant's submissions with respect to his sentence are a repetition of his submissions with respect to his conviction. In essence, he submitted that he did not obtain a fair trial for reasons which are the same as those advanced to support the same proposition with respect to his conviction. None of those submissions were relevantly directed to any suggested error on the part of his Honour in his Remarks on Sentence. 45 Given that it is well established that absent very special circumstances, a custodial sentence is to be imposed upon those who defraud the Department of Social Services, it seems to me that an actual term of imprisonment of 12 months after which the appellant was to be released on a bond for a further 16 months was in all the circumstances, given the implications of the jury's verdict of guilty, at the lower end of the range of custodial sentences which it was open to his Honour to impose in the proper exercise of his sentencing discretion. 46 In any event, absent demonstration of any error on his Honour's part in imposing the sentence he did, the appellant's challenge to that sentence is unsustainable. Conclusion 47 For the reasons set forth above, I would therefore propose the following orders: (a) Appeal against conviction dismissed. (b) Grant leave to appeal against sentence but dismiss the appeal. 48 GROVE J: I agree with Tobias JA. 49 BELL J: I agree with Tobias JA. ********** 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.