King v Fricker [2007] ACTSC 101 (21 December 2007)

Last Updated: 24 October 2008

HUMAN RIGHTS ACT

SHEREE KING v CHRISTIAN DAVID FRICKER
[2007] ACTSC 101 (21 December 2007)

ORDER NISI – to review decision of Magistrate to acquit – whether decision made according to the law – whether prima facie evidence of knowledge or belief – s 135.2(1) Criminal Code Act 1995 (Cth) – insufficient evidence.

Criminal CodeAct 1995 (Cth), s 135.2(1)
Human Rights Act 2004 (ACT), s 24
Magistrates Court Act 1930 (ACT), ss 219B, 219C(2)(c)

Fisher v Bennett (1987) 85 FLR 469
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Myers v Claudianos (1990) 2 ACSR 73

Order Nisi to review decision of Magistrates Court

No. SC 424 of 2007

Judge: Higgins CJ
Supreme Court of the ACT
Date: 21 December 2007

IN THE SUPREME COURT OF THE )
) No. SC 424 of 2007
AUSTRALIAN CAPITAL TERRITORY )

Order Nisi to review decision of Magistrates Court

BETWEEN: SHEREE KING

Applicant

AND: CHRISTIAN DAVID FRICKER

Respondent

ORDER

Judge: Higgins CJ
Date: 21 December 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The order nisi be discharged.
2. The appellant pay the respondent’s costs.

1. This is the return of an order nisi to review a decision of Magistrate Madden, made on 12 June 2007, dismissing a charge contained in an information CC06/40456 alleging an offence against s 135.2(1) of the Criminal Code Act 1995 (Cth).
2. It was alleged that between 22 June 2001 and 1 February 2004, at Canberra, the respondent obtained a financial advantage for himself from a Commonwealth entity, namely Centrelink, knowing or believing that he was not entitled to receive that financial advantage.
3. That section, as from 24 November 2000 and further amended, provides:

135.2 Obtaining financial advantage
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and
(ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and
(b) the other person is a Commonwealth entity.
Penalty: Imprisonment for 12 months.
(1A) Absolute liability applies to the paragraph (1)(b) element of the offence.
...
(4) The definition of obtaining in section 130.1 does not apply to this section.

4. The respondent, the evidence before Magistrate Madden disclosed, applied for an Austudy benefit and commenced a course of study. He was granted that benefit but ceased that course of study in June 2001. The benefits continued to be paid until early 2004.
5. Ms Weston-Scheuber, for the appellant/applicant, had called evidence from Ms Sheree King, an officer of Centrelink. Ms King explained the process for application for, and payment of, the Austudy benefits and the record of payments made to the respondent.
6. She deposed that letters were routinely despatched by Centrelink. The first letter, dated 21 February 2001, advised inter alia, “THE CHANGES YOU MUST TELL CENTRELINK ABOUT ARE: If you or your partner (includes a de facto partner): stop being a full-time student or concessional workload student”.
7. Succeeding letters repeated that information.
8. Ms Menser of Dimension Data Learning Solutions (DDLS) provided information of the respondent’s attendance at the training courses it conducted. It was completed on 21 June 2001. The institution was contacted early 2003 by Centrelink and advised that the respondent was not then enrolled with DDLS. On the assumption that the respondent was not entitled to assistance, a debt of $18,875.70 was raised by Centrelink against the respondent.
9. A letter notifying that debt was not sent to the respondent until 11 January 2005.
10. At no stage had the respondent acknowledged receipt of any of those communications. There was no evidence that the respondent had engaged in paid employment during the period of his receipt of Austudy.
11. Mr Gill, for the respondent, suggested that, consistently with Fisher v Bennett (1987) 85 FLR 469, if the respondent was entitled to an equivalent benefit there would be no “financial advantage” to the respondent. The answer to that, of course, is that the eligibility criteria may be more difficult to satisfy and maintain under, say, Newstart Allowance, than for Austudy. That submission was, in my view correctly, not accepted by his Honour. It was not urged on me.
12. That was the evidence for the prosecution before his Honour.
13. Mr Gill made a no-case submission to his Honour. He submitted that there was no evidence that, after 21 June 2001, the respondent either was, or knew that he was, ineligible for continued payment of Austudy.
14. Ms Weston-Scheuber merely submitted that, effectively, there was some evidence that study with DDLS had ceased and no other study course had been notified. That was “some evidence” even if not positive or even cogent, that eligibility had ceased. She cited Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. The study course which the respondent in his application had nominated was a Certificate IV in IT Client Support with Com Tech. There was a statement from Com Tech that the respondent had so enrolled. Ms Weston-Scheuber asserted that Com Tech was “currently called Dimension Data Learning Solutions”.
15. There was no admissible evidence of that, as Mr Gill pointed out. However, his Honour did indicate that he would accept that inference as one that was open. As later appears, I do not agree with that proposition.
16. His Honour raised the question whether, if the respondent became a non-student, he became ineligible for benefits. Ms Weston-Scheuber pointed to the eligibility criteria. She submitted that, prima facie, the inference was open that he was aware that he needed to notify Centrelink that he had ceased full-time study but had knowingly refrained from doing so.
17. Mr Gill pointed out that eligibility depended not merely on the attendance at the particular training institution or course but upon the fact, if it be so proved, that he was not otherwise engaged in full-time study. The notice given only drew attention to the requirement to continue as a student. It did not require notification of a change of the instructor delivering a course.
18. Ms Weston-Scheuber submitted that the lack of response from the respondent enabled an inference that he had not been enrolled in any further course or courses of study after 21 June 2001.
19. There was some correspondence after the event of 26 August 2005, which did not address that issue but related to provision of medical information.
20. On 12 June 2007, his Honour handed down his decision. He, correctly, identified the issue as whether the defendant could lawfully be convicted on the evidence presented. If it was to be the case that the evidence, though sufficient for that purpose, would lead to a verdict that was unsafe and unsatisfactory then the issue would be whether the learned Magistrate, on the evidence as it stood, would convict rather than whether lawfully he could. The difference is that the former decision is only appellable (if at all) on the merits, whereas the latter would bespeak an error of law.
21. His Honour said:

That means that with respect to every element of the offence, some evidence exists which, if accepted, would either prove the element or elements directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal beyond reasonable doubt. The existence of a prima facie case is a very minimal thing. As long as there is some evidence capable of acceptance by a jury to support such element of the offence, then it is sufficient.

22. That is, undoubtedly, a correct statement of principle (see Myers v Claudianos (1990) 2 ACSR 73; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207). His Honour concluded that he was not, even on that test, able to find evidence “to say the defendant knew or believed he was not eligible for the Austudy payment”.
23. His Honour, for the purpose of that conclusion, accepted that there was evidence that the respondent had received the Centrelink correspondence and, so, was aware of his lack of entitlement to Austudy should he cease full-time study but, his Honour concluded:

There is simply no evidence of knowledge or belief held by the defendant as to his ineligibility. It is not sufficient to assert that by inference he had such knowledge by simply completing a form and supposedly making, understanding or even reading the declaration that he was to notify Centrelink of any changes in his circumstances.

24. His Honour dismissed the information accordingly but declined to order costs.
25. The informant sought and, on 20 July 2007, obtained an order nisi for an order of review of that decision.
26. The fundamental contention was that the despatch and apparent receipt by the respondent of the correspondence from Centrelink, provided prima facie evidence that the respondent did know that, if he ceased to be a full-time student, he was no longer entitled to Austudy payments.
27. The matter came before me for hearing of that appeal on 13 September 2007. I heard argument from Ms Weston-Scheuber for the applicant and Mr Gill for the respondent.
28. Mr Gill made a preliminary submission that s 24 of the Human Rights Act 2004 (ACT) (HR Act) affected or limited the right of the prosecutor to appeal against an acquittal. That section provides:

No one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted according to law.

29. Section 219B of the Magistrates Court Act 1930 (ACT) (MC Act) allows for an appeal by the prosecution by way of order to review a decision to acquit a person of an offence upon the ground, inter alia, that “the decision ... should not in law have been made” (s 219C(2)(c)).
30. Clearly, if Ms Weston-Scheuber’s contentions were correct, the decision would not have been made “according to law”. Hence s 24 of the HR Act is no bar to the application of the provisions of ss 219B-C of the MC Act nor does it require that those provisions be read down. It is consistent with them.
31. The matter before his Honour was a purely summary matter, carrying a maximum penalty of 12 months imprisonment.
32. The prosecution submission was that, effectively, his Honour should not have found no prima facie case given that there was evidence from which it could be inferred that the respondent knew that, if he ceased to be a full-time student, he ceased to be entitled to Austudy payments.
33. However, in the course of argument, it emerged that no check had been made to establish that the course of study which had terminated on 22 June 2001 was not merely part of a course of study for the four year period notified on the respondent’s application form. That course was to be provided by “Com Tech”. His enrolment for that course was to terminate on 1 February 2004. The course provided by DDLS, so far as any evidence addressing the issue was concerned, might have been provided as part of such a longer course, perhaps with other parts of it sourced to other sub-providers, but continuing as represented by the initial application. There was no evidence, beyond Ms Weston-Scheuber’s assertion from the bar table, that Com Tech and DDLS were identical entities.
34. This demonstrated the logical fallacy into which the prosecution fell. The representation the respondent made was that, until 1 February 2004, Com Tech would provide a course of instruction qualifying for Austudy payments. It was supported by Com Tech Education Services so advising (apparently orally) and further supported by an enrolment agreement, representing that the respondent was so enrolled. There was evidence of enquiry of, and evidence from, DDLS of the respondent’s attendance at a course of instruction terminating on 21 June 2001 and no enrolment of the respondent in any further courses with that body. However, there was no evidence of an identity between Com Tech and that body. Evidence of the positive (enrolment with DDLS), contrary to the relatively perfunctory expression by his Honour of a different view, is not evidence of the negative, namely, that the respondent did not continue his enrolment with Com Tech and receive further courses of study from them or some other sub-provider.
35. As I have noted, there was no evidence adduced by the prosecution that Com Tech and DDLS were one and the same training provider. Nor was there any admission from the respondent that he did not remain a student in courses provided by Com Tech of which the course provided by DDLS may have formed a part.
36. It follows that there was no evidence that the representation made by the respondent as to his continuing course of study had ceased to be true after 21 June 2001. I agree that had there been evidence that Com Tech and DDLS were one and the same body, or that no courses were provided to, or availed of by, the respondent from Com Tech, then the correspondence would, as his Honour accepted, suffice to find a prima facie case. Thus, his Honour was right to conclude that no prima facie case had been established, though not for the reason that the terms of the correspondence sent by Centrelink could not found an inference of knowledge that if he ceased study he ceased to be eligible for the relevant benefit, but because ineligibility itself is not established.
37. In those circumstances, no relevant error has been established. The order nisi is discharged. The appellant is to pay the respondent’s costs as required by the MC Act. I will hear the parties as to the question of costs in the Court below.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 21 December 2007

Counsel for the Crown: Ms Weston-Scheuber
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
Counsel for the respondent: Mr S Gill
Solicitor for the respondent: Messrs Phelps Reid
Date of hearing: 13 September 2007
Date of judgment: 21 December 2007