Local Court New South Wales Medium Neutral Citation: Office of State Revenue v El Kazzi (No. 2) [2013] NSWLC 19 Hearing dates: 13-14/02/2013 Decision date: 02 September 2013 Jurisdiction: Criminal Before: Favretto LCM Decision: CANs 1, 4, 5, 6, 8, 9 and 10 are duplicitous Catchwords: CRIMINAL LAW - practice and procedure - duplicity - statutory provisions referring to a singular prohibited act - whether impermissible to charge more than one prohibited act in a Court Attendance Notice Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 First Home Owner Grant Act 2000 Oaths Act 1900 Taxation Administration Act 1996 Cases Cited: Chapman v R [2013] NSWCCA 91 Giam v R [1999] NSWCCA 53; (1999) 104 A Crim R 416 Johnson v Miller (1937) 59 CLR 467; [1938] ALR 104 Office of State Revenue v El Kazzi (No. 1) [2013] NSWLC 18 Romeyko v Samuels (1972) 2 SASR 529; (1972) 19 FLR 322 S v The Queen [1989] HCA 66; (1989) 168 CLR 266 Stanton v Abernathy (1990) 19 NSWLR 656; (1900) 48 A Crim R 16 Category: Interlocutory applications Parties: Office of State Revenue (prosecution/ respondent) Grace El Kazzi (accused/ applicant) Representation: P Wass SC for the OSR B Thomson of the NSW Crown Solicitor's Office for the OSR D Miralis of Gibson Nyman Stewart for the accused File Number(s): 2012/205920 Publication restriction: Nil Judgment Background 1The accused ("the applicant") is charged with offences arising out of alleged false statements relating to an application for the First Home Owners Grant and related stamp duty exemption and also to false statements made to officers of the Office of State Revenue ("OSR") during an investigation into her grant and stamp duty exemption. Additionally, there are offences relating to the failure to comply with conditions of the grant and stamp duty exemption. 2On 28 June 2012 the OSR commenced these proceedings by the issue of ten Court Attendance Notices ("the CANs"). The applicant has entered a plea of not guilty but seeks a permanent stay of the proceedings on a number of grounds and objects to the form of the CANs on the grounds of duplicity. 3On 12 August 2013 the Court delivered reasons refusing the applicant's permanent stay application: Office of State Revenue v El Kazzi (No. 1) [2013] NSWLC 18. These reasons deal with the remaining issue of whether CAN Sequences 1 and 4-10 are duplicitous. Relevant principles concerning the Rule against Duplicity 4In S v The Queen [1989] HCA 66; (1989) 168 CLR 266 Gaudron and McHugh JJ at [5]-[6] explained the basis of the rule against duplicity as: 5. The rule against duplicitous counts in an indictment originated as early as the seventeenth century... It may be... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict... 6. The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See, for example, R. v. Robe, at p 999 (p 994 of ER) where it was said "this is so general a charge, that it is impossible any man can prepare to defend himself on this prosecution ... ". See also R. v. Hollond, per Lord Kenyon C.J. at p 623 (p 348 of ER); R. v. North (1825) 6 Dowl & Ry 143, at p 146 (28 RR 538, at p 541); R. v. Morley, at pp 224-225 (p 654 of ER); and Cotterill v. Lempriere, per Lord Esher M.R. at p 639... 5In Chapman v R [2013] NSWCCA 91 Adamson J, with Hebden CJ at CL and Davies J agreeing, succinctly stated the object of the rule against duplicity to be that at [19]: The object of the rule against duplicity has always been that there should be no uncertainty as to the offence charged: Chief Constable of Norfolk v Clayton [1983] 2 AC 473. The rule against duplicity prohibits a single count in an indictment charging a person with the commission of more than one offence: S v The Queen at 280-281 per Toohey J, citing Archbold, Pleading, Evidence and Practice in Criminal Cases, 43 ed (1988), page 46. The Court said at [25] that this involves an analysis of: 25. The cases draw a distinction, for the purpose of determining whether a count in an indictment is bad for duplicity, between alternative factual bases of liability on the one hand and alternative legal formulations of liability based on the same or substantially the same facts: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198 (Cramp) at [65] per Barr J, Sully and Ireland JJ agreeing. 6In Romeyko v Samuels (1972) 2 SASR 529; (1972) 19 FLR 322, Bray CJ said in the case of statutory offences that: The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case, two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several such characteristics. 7Of both binding and persuasive authority in the interpretation of the s 178BB, s 192G, s 55(a) and s 44(1)(a) offences in this matter is the decision of the New South Wales Court of Criminal Appeal in Giam v R [1999] NSWCCA 53; (1999) 104 A Crim R 416, where the Court (Spigelman CJ, with Abadee and Adams JJ agreeing), held that s 178BB created but a singular offence for "any statement... in a material particular". At [16]-[20] Spigelman CJ said: 16 It was submitted in this case, as it was in Walsh v Tattersall, that s8(b) of the Interpretations Act 1987 stating that the use of the singular will include the plural may be applicable in this case, so that the word "statement" in s178BB of the Crimes Act shall be understood to mean "statements". In my view that submission should not be accepted. 17 The first reason for that is this is a criminal statute and it should be construed strictly. The second reason is that the word immediately preceding the word "statement" is the word "any", which points to a degree of singularity. Thirdly, the conclusion is reinforced by the crucial sub-element of the same element in the section, namely the definition of the nature of the statement. The statement has to be a statement which a person knows to be false or misleading "in a material particular", or which is in fact false or misleading "in a material particular" and which is "made with reckless disregard as to whether it is true or false or misleading", again, "in a material particular". 18 The reference to the definite article in these crucial references to "material particularity" is such as to identify the fact that a single statement is being referred to on the proper construction of s178BB. 19 There is a category of cases in which a single statement can be constituted from more than one utterance or representation. Indeed, the second of the two statements in the charges under consideration in this case, namely whether or not a person had authority to enter into a contract, is characteristically a "statement" which can be so described. It is a "statement" which on many occasions is an inference to be drawn from a number of utterances and a course of conduct. 20 In Stanton v Abernathy (1990) 19 NSWLR 656 at 662 Gleeson CJ said: "As King CJ observed in R v Traino (1987) 45 SASR 473 in the context of perjury, a number of utterances made on oath by an individual concerning a given subject may or may not, depending upon the circumstances, constitute a single false statement or a number of false statements or, of course, a number of statements some of which are false and some of which are not. Each false statement involves a separate crime of perjury. Considerations of commonsense and fairness enter into a judgment on the question of how many statements ought to be taken to have resulted from a number of utterances." The parties' arguments 8The applicant's submission is that as the various statutory provisions create a singular offence then it is impermissible to charge more than one prohibited act in the one CAN. 9The prosecutor responds in a general way to say that the applicant's submissions are misconceived. The prosecutor relies upon a number of authorities where it was held, in relation to somewhat analogous offences, that there was no duplicity in charging one offence although a number of false particulars were involved as there could be falsity in one or many respects in a statement. 10The nature of the statutory offences in this context is dealt with below. CAN Sequences 1, 6 and 8 11 The prosecutor avers in each of these Sequences the following particulars of factual liability: (1)CAN Sequence 1 avers the following "Short Particulars" alleging a breach of s 178BB of the Crimes Act 1900: Statement: On 23 September 2008 the defendant signed an application form under the First Home Owner Grant Act 2000 and was successful in obtaining a grant under that Act in the amount of $7000. False or misleading particulars: The application form signed by the defendant contained the following statements which were false or misleading: 1. In response to the question: "Are any of the applicants or their spouse/partner(s) related to or associated with the vendor or builder?" the defendant ticked box marked "No". 2. In response to the prompt: "Date when occupation as a principal place of residence commenced or is intended to commence (if not known please estimate)" the defendant entered the date: "03/09/2008". (2)CAN Sequence 6 avers the following "Short Particulars" alleging a breach of s 178BB of the Crimes Act 1900: Statement: On 15 February 2010 the defendant signed a First Home Benefits Residency Confirmation Statutory Declaration attaching a signed statement and the following documents addressed to the defendant: a. RTA driver licence renewal notice dated 24 March 2009; b. Tru Energy gas account issued 17 February 2009; c. Tru Energy electricity account issued 14 February 2009 False or misleading particulars: The statutory declaration signed by the defendant contained the following statements that were false or misleading: 1. "Yes, I occupied the property for the period shown below: I started residing in the property on 12/2008 and I stopped living in the property on 7/2009". 2. In response to the question: "Did all the purchasers live in the property during this period?" the defendant ticked the box "Yes". The statement signed by the defendant attached to the statutory declaration contained the following statement: "Please be advised that [the property] is my Principal place of Residency." (3)CAN Sequence 8 avers the following "Short Particulars" alleging a breach of s 192G(b) of the Crimes Act 1900: Statement: The defendant signed a First Home Benefits Objection to an Assessment or Decision form attaching a signed statement and supporting documents as follows: 1. ASIC Company Name Search for Direct Flow Plumbing Services Pty Limited. 2. Letter from L'Yvonne's Hair Studio dated 1 June 2009. 3. Australian Business Register search for Adam Barba. 4. Australian Business Register search for Grace El Kazzi. 5. Letter to Grace El Kazzi from Khourys and Associates dated 4 May 2010. 6. Letter to Adam Barba from Khourys and Associates dated 4 May 2010." False or misleading in a material particular: The attachment to the First Home Benefits Objection to an Assessment or Decision form signed by the defendant contained the following material particulars which were false or misleading: 1. "The plan was to move into the property straight after the wedding December 2008 to start our new life in our new home". 2. "So late February the tenant moved in with us renting the 2 out of three bedrooms". 3. "we decided to move back to my parents house with my husband so my Mum help me with my pregnancy especially the first 3 month. Intention was to move back to our unit as soon as things settle down in health & work". 4. "we were forced to share the unit to help in servicing the loan". 5. "Our intention from day one to be our principal place of residency." 12The statutory offences at the time were as follows: 178BB Obtaining money etc by false or misleading statements (1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years. ... 192G Intention to defraud by false or misleading statement A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of: (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. Determination 13The Court accepts the applicant's submission that CANs 1 (two statements), 6 (three statements) and 8 (five statements) all aver more than one statement which are also similarly alleged to be false or misleading in a material particular and are duplicitous. Further, as CAN 8 also avers those statements were for the purpose of obtaining both the stamp duty exemption and the grant, it avers two separate financial advantages and consequently is also duplicitous. 14Insofar as CANs 1 and 6 are concerned, the Court must follow the decision in Giam v R in determining that these CANs are duplicitous. Section 178BB was repealed and replaced by s 192G on 22 February 2010. An analysis of s192G reveals that the only material difference now is that an element of the offence of "dishonestly" has been added but otherwise the words "any statement... in a material particular" remain. On the proper construction of s 192G the Court concludes that CAN 8 is also duplicitous following the reasoning in Giam v R. CAN Sequences 4 and 10 15CAN Sequence 4 avers the following "Short Particulars" alleging a breach of s 55(a) of the Taxation Administration Act 1996: Statement: On 15 February 2010 the defendant signed a First Home Benefits Residency Confirmation Statutory Declaration attaching a signed statement and the following documents addressed to the defendant: a) RTA driver licence renewal notice dated 24 March 2009; b) Tru Energy gas account issued 17 February 2009; c) Tru Energy electricity account issued 14 February 2009 To a Taxation Officer: The declaration and attached statement and attached documents were sent by the defendant to Margaux Perrone at the Office of State Revenue Compliance Branch. False or misleading particulars: The statutory declaration signed by the defendant contained the following statements that were false or misleading: 1. "Yes, I occupied the property for the period shown below: I started residing in the property on 12/2008 and I stopped living in the property on 7/2009". 2. In response to the question: "Did all the purchasers live in the property during this period?", the defendant ticked the box "Yes". The statement signed by the defendant attached to the statutory declaration contained the following statement: "Please be advised that [the property] is my Principal place of Residency." 16CAN Sequence 10 avers the following "Short Particulars" alleging a breach of s 55(a) of the Taxation Administration Act 1996. Statement: The defendant signed a First Home Benefits Objection to an Assessment or Decision form attaching a signed statement and supporting documents as follows: 1. ASIC Company Name Search for Direct Flow Plumbing Services Pty Limited. 2. Letter from L'Yvonne's Hair Studio dated 1 June 2009. 3. Australian Business Register search for Adam Barba. 4. Australian Business Register search for Grace El Kazzi. 5. Letter to Grace El Kazzi from Khourys and Associates dated 4 May 2010. 6. Letter to Adam Barba from Khourys and Associates dated 4 May 2010. False or misleading in a material particular: The attachment to the First Home Benefits Objection to an Assessment or Decision form signed by the defendant contained the following material particulars which were false or misleading: 1. "The plan was to move into the property straight after the wedding December 2008 to start our new life in our new home". 2. "So late February the tenant moved in with us renting the 2 out of three bedrooms". 3. "we decided to move back to my parents house with my husband so my Mum help me with my pregnancy especially the first 3 month. Intention was to move back to our unit as soon as things settle down in health & work". 4. "we were forced to share the unit to help in servicing the loan". 5. "Our intention from day one to be our principal place of residency." 17The statutory offence at the time was: 55 Knowingly giving false or misleading information A person must not: (a) make a statement, orally or in writing, to a tax officer, or (b) give information, orally or in writing, to a tax officer, knowing that it is false or misleading in a material particular. Maximum penalty: 100 penalty units. Determination 18The Court accepts the applicant's submission that CANs 4 (three statements) and 10 (five statements) all aver more than one statement, which are also similarly alleged to be false or misleading in a material particular, and are duplicitous. The applicant also submits that as CAN 4 also avers those statements were made in two different documents (the First Home Benefits Residency Confirmation Statutory Declaration and a separate statement) it is also duplicitous. As the Court does not have those documents before it at this stage it is not in a position to determine this further objection. 19Insofar as s 55(a) also uses the words "a statement... in a material particular" in the singular then, a fortiori, on the proper construction of s 55(a) the Court concludes that CANs 4 and 10 are also duplicitous following the reasoning in Giam v R. CAN Sequences 5 and 9 20CAN Sequence 5 avers the following "Short Particulars" alleging a breach of s 44(1)(a) of the First Home Owner Grant Act 2000: Statement: On 15 February 2010 the defendant signed a First Home Benefits Residency Confirmation Statutory Declaration attaching a signed statement and the following documents addressed to the defendant: a) RTA driver licence renewal notice dated 24 March 2009; b) Tru Energy gas account issued 17 February 2009; c) Tru Energy electricity account issued 14 February 2009 False or misleading in a material particular: The statutory declaration signed by the defendant contained the following statements that were false or misleading: 1. "Yes, I occupied the property for the period shown below: I started residing in the property on 12/2008 and I stopped living in the property on 7/2009". 2. In response to the question: "Did all the purchasers live in the property during this period?" the defendant ticked the box "Yes". The statement signed by the defendant attached to the statutory declaration contained the following statement: "Please be advised that [the property] is my Principal place of Residency." 21CAN Sequence 9 avers the following "Short Particulars" alleging a breach of s 44(1)(a) of the FHOG Act Statement: The defendant signed a First Home Benefits Objection to an Assessment or Decision form attaching a signed statement and supporting documents as follows: 1. ASIC Company Name Search for Direct Flow Plumbing Services Pty Limited. 2. Letter from L'Yvonne's Hair Studio dated 1 June 2009. 3. Australian Business Register search for Adam Barba. 4. Australian Business Register search for Grace El Kazzi. 5. Letter to Grace El Kazzi from Khourys and Associates dated 4 May 2010. 6. Letter to Adam Barba from Khourys and Associates dated 4 May 2010. False or misleading in a material particular: The attachment to the First Home Benefits Objection to an Assessment or Decision form signed by the defendant contained the following material particulars which were false or misleading: 1. "The plan was to move into the property straight after the wedding December 2008 to start our new life in our new home". 2. "So late February the tenant moved in with us renting the 2 out of three bedrooms". 3. "we decided to move back to my parents house with my husband so my Mum help me with my pregnancy especially the first 3 month. Intention was to move back to our unit as soon as things settle down in health & work". 4. "we were forced to share the unit to help in servicing the loan". 5. "Our intention from day one to be our principal place of residency." 22 The statutory offence at the time was: 44 Knowingly giving false or misleading information (1) A person must not: (a) make a statement, orally or in writing, to an authorised officer, or (b) give information, orally or in writing, to an authorised officer, knowing that it is false or misleading in a material particular. Maximum penalty: 100 penalty units. (2) A person must not, in or in relation to an application for a first home owner grant, make a statement or give any information knowing that it is false or misleading in a material particular. Maximum penalty: 100 penalty units. Determination 23The Court accepts the applicant's submission that CANs 5 (three statements) and 9 (five statements) all aver more than one statement, which are also similarly alleged to be false or misleading in a material particular, and are duplicitous. Again, the applicant submits that as CAN 5 also avers those statements were made in two different documents (the First Home Benefits Residency Confirmation Statutory Declaration and a separate statement) it is also duplicitous. As the Court does not have those documents before it at this stage it is not in a position to determine this further objection. 24Insofar as s 44(1)(a) also uses the words "a statement... in a material particular" both in the singular then, a fortiori, on the proper construction of s 44(1)(a) the Court concludes that CANs 5 and 9 are also duplicitous following the reasoning in Giam v R. CAN Sequence 7 25CAN Sequence 7 avers the following "Short Particulars" alleging a breach of s 25A of the Oaths Act 1900: Statutory Declaration: On 15 February 2010 the defendant wilfully and corruptly declared a First Home Benefits Residency Confirmation Statutory Declaration attaching a signed statement and the following documents addressed to the defendant: RTA driver licence renewal notice dated 24 March 2009; Tru Energy gas account issued 17 February 2009; Tru Energy electricity account issued 14 February 2009 Knowing the declaration to be untrue in a material particular: The defendant declared the statutory declaration knowing it to contain the following untrue material particulars: "Yes, I occupied the property for the period shown below: I started residing in the property on 12/2008 and I stopped living in the property on 7/2009". In response to the question: "Did all the purchasers live in the property during this period?" the defendant ticked the box "Yes". The statement signed by the defendant attached to the statutory declaration contained the following statement: "Please be advised that [the property] is my Principal place of Residency." 26The statutory offence at the time was: 25A False declaration for material benefit In all cases where by this Part, or under the authority thereof, or by virtue of any power or authority hereby given, a declaration: (a) is substituted in lieu of an oath or affidavit, or (b) is directed or authorised to be made and subscribed, although not substituted in lieu of an oath or affidavit, any person who wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular, and who derives or attempts to derive a material benefit as a consequence of the untrue particular is guilty of an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 7 years. 27The false declaration provision in s 25A prohibits an offence of " wilfully and corruptly makes and subscribes any such declaration, ... in any material particular" and not to "a material particular" as is found in both s 178BB and s 44(1)(a). Further, s 25A focuses on the declaration itself as a whole unlike s 178BB and s 44(1)(a), which refer to "any statement" evincing an intention to deal with the declaration as a whole providing it is false in "any material particular" (the Court's emphasis). 28On the proper construction of s 25A there is but one act prohibited although it may have more than one false characteristic: Romeyko v Samuels; Giam v R at [20]. The consequences of the determination that the CANs are duplicitous 29The prosecutor in its written submissions has foreshadowed that in the event of the Court coming to the view that the CANs are duplicitous it will take the following course: (a)Regarding CAN Sequences 4 and 10 (s 55(a) Taxation Administration Act 1996 offences) it will make an election of the particulars relied upon under s 16 of the Criminal Procedure Act 1986; see Johnson v Miller (1937) 59 CLR 467; [1938] ALR 104; Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16. (b)Regarding CAN Sequence 1 (s 178BB Crimes Act 1900 offence) it will file two separate charges; in relation to Sequence 6 (s 178BB Crimes Act 1900 offence) it will file three separate charges; and, in relation to Sequence 8 (s 192G(b) Crimes Act 1900 offence) it will file ten separate charges. The prosecutor further foreshadows that in the event the Court accepts the applicant's argument that Sequence 6 is also duplicitous because it alleges two financial advantages (the grant and the stamp duty exemption) it will file instead six separate charges. 30The applicant responds that in the event the prosecutor adopts the course foreshadowed the Court will need to have careful regard to s 21(1) of the Criminal Procedure Act 1986, which provides: 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. 31The difficulty with the applicant's submission is that until the form of the election is known the court is not in a position to determine whether it amounts to an amendment within the meaning of s 21 or to no more than a variance between the form of the CAN and the evidence adduced within the meaning of s 16(2)(b) of the Criminal Procedure Act 1986. In the "Description of Offence" in the CANs the offences are otherwise averred in general terms and appear to comply with s 11 of the Criminal Procedure Act 1986. It is the "Short Particulars" of each offence that on the face of the CANs offend the rule against duplicity. 32If the election were to be an amendment the applicant submits that there is no "merits of the case" (s 21(1)) allowing the amendment for the following reasons: (a)The CANS are defective and oppressive, in their particulars and their multiplicity. (b)There has been considerable delay, unexplained, in bringing these charges. The grants and exemptions relate to 2008. The proceedings did not commence until late August 2012. (c)If an amendment is granted, there would be further considerable delay, and expense to the applicant. (d)The principle of finality and economical and expeditious justice, which governs the conduct of Local Court proceedings, would be undermined. (e)As the applicant has paid back the original grant and significant penalties, specific and general deterrence principles have been met. 33The court notes that it has already determined a number of these objections in its reasons for refusing the permanent stay application. Some of these objections are no more than submissions at this stage as there is no election or new charges let alone any evidence before the court of "further considerable delay, and expense to the applicant" which may or may not ensue. It may be, for instance, that no further evidence will be required or the abandonment of some of the particulars by election will shorten the length of the evidence as it currently stands and reduce the hearing time and any further delay. The applicant may well be advantaged forensically as well as the peril she may ultimately face. Any relevant prejudice and injustice can only be dealt with if and when that situation was to arise. 34In relation to any further charges that may be laid as foreshadowed by the prosecutor the provisions of s 21 of the Criminal Procedure Act 1986 may or may not apply. Whether the applicant's objections referred to above actually are relevant can only be determined if that situation were to arise. If it does then it may be that some of those objections about "the merits of the case" will arise in a wider sense beyond the terms of s 21. Magistrate Favretto Downing Centre Local Court 2 September 2013 ********** 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: 20 January 2014