COMMONWEALTH SERVICE DELIVERY AGENCY v BOURKE No. SCGRG-98-1280 Judgment No. S154 [1999] SASC 154

2 The alleged offences were detected by means of a data match with the Australian Taxation Office whereby the respondent's taxation information was compared with his Department of Social Security (now Centrelink) records. However, prior to the respondent being charged, the fortnightly forms which the respondent lodged with the Department in order to apply for benefits, were destroyed in accordance with the Archives Act 1983 (Cth).

3 At the beginning of the trial in the Magistrates Court, before the prosecution led any evidence in support of the charges, counsel for the respondent made an application that the proceedings be stayed on the grounds that they constitute an abuse of process. The learned magistrate granted the application.

4 The Notice of Appeal sets out 6 grounds of appeal:

"1. That the learned Stipendiary Magistrate erred in law in ordering that the proceedings be permanently stayed.

2. That the learned Stipendiary Magistrate erred in giving insufficient weight to the following evidence which was admitted as Agreed Facts:

(a) the evidence of the wages paid to the Respondent

(b) the evidence that the wages paid demonstrated that on 44 occasions the benefit was not payable at all and on 26 occasions was payable in part

(c) the explanations given by the Respondent in his Record of Interview for putting incorrect information into his forms which were inconsistent with his proposed defence.

3. That the learned Stipendiary Magistrate erred in giving too much weight to the submission by the defence, unsupported by evidence that the Respondent had put 'correct information' into his forms.

4. That the learned Stipendiary Magistrate erred in ordering a stay at a stage in the proceedings when the prosecution case had not crystallised in such a manner to enable him to properly evaluate the alleged unfairness to the defence.

5. That the learned Stipendiary Magistrate erred in not receiving evidence from an officer from Centrelink as to Departmental procedures upon receipt of forms as to the inherent improbability that the Department could have mistakenly interpreted the forms on 70 separate occasions.

6. That the learned Stipendiary Magistrate erred in finding that the destruction of the forms caused a significant problem for the defence, given that there was other evidence from which it could inferred that the Respondent knowingly obtained benefits not payable."

5 It is well settled that a permanent stay of criminal proceedings should be ordered only in rare and exceptional circumstances: Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Holmden v Bitar (1987) 47 SASR 509; Heinze v Burnley & Anor (1992) 57 SASR 452; R v Von Einem (1990) 55 SASR 199; Duncombe-Wall v Police (Lander J, S6754, 2 July 1998, unreported). In Barton v The Queen (supra) Wilson J at 111 said:

"... in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences." (My emphasis.)

6 However, as Duggan J emphasised in R v Von Einem (supra) at 209, "[f]airness to an individual accused is not the sole criterion. The remedy exists to prevent the court's own processes from being abused". The court must undertake a balancing process whereby two competing public interests are weighed against each other, namely, the right of an accused to a fair trial and the need to punish people who break the law: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378. The learned magistrate made a detailed reference to this balancing process and the relevant authorities at pp8-9 of his judgment. The question therefore is whether this was one of those rare and exceptional cases where a stay should be ordered.

7 In this case there was a clear conflict between the inferences which the prosecution sought to draw from the available evidence and those which the respondent sought to draw. Central to the prosecution case was proof that the respondent knew he was not entitled to the benefit for which he had applied. One way to prove this would have been to show that he provided false information on the fortnightly forms. However, it was submitted by counsel for the prosecution that this was not the only way to prove it. That the respondent was knowingly in receipt of a benefit to which he was not entitled in whole or in part could also be proved by the following evidence and inferences: evidence of the amount of money the respondent had earned; the amount of time over which he had earned it; the fact that the information in the fortnightly forms was entered into the computer; the inference that the forms could not have been dealt with wrongly on so many occasions; and the fact that the Department continued to pay the benefit to the respondent. From this process, it was submitted, an inference could be drawn that it was inherently improbable that the respondent was telling the truth in the forms, and from that it could be inferred that the respondent was knowingly receiving a benefit which was not payable.

8 Counsel for the prosecution also sought to rely on the inconsistency between what the respondent said in his record of interview with Mr Justin Nunn, an officer of the Department of Social Security, and his proposed defence. In his record of interview the respondent claimed that in filling out the fortnightly forms he had made an honest mistake. The following is an extract from the record of interview pp20-23:

""Q79 Did you think that you were declaring the correct amounts of income over those two years?

Q83 Okay. Is there anything else that you would like to add in relation to this matter?

A Yes, it was an honest mistake I have made. I'm willing to pay it back ...

A I think what I have done, I'm - I mustn't have put before tax down. I must've just write me gross pay I've wrote down.

Q93 Do you think that you should've found out the exact amounts of income you were earning fortnightly from the employer and declared those whole amounts on your forms?

Q94 So by not putting down everything, it would ...

Q(contd) ... your actions are of a reckless nature?

9 Counsel for the prosecution submitted that the respondent's record of interview "tested" his credibility and therefore the fortnightly forms were not the only evidence thereof. It was further submitted that the record of interview is to be contrasted with the respondent's proposed defence which the learned magistrate set out in his judgment at pp5-6:

" It is the defendant's assertion that what he did was in accordance with his statutory obligations. He filled out the forms, the forms were filled out as accurately as he was capable of completing them at the relevant time. He says there was nothing wrong with the information contained in each of the fortnightly returns and that the entitlement to NewStart or the like allowance was a product of departmental computation, admittedly based upon the information he had provided in the returns. He says he is deprived now of the opportunity of confirming to this or any other court the requisite information. He says that he did not knowingly obtain a payment in whole or in part of Social Security benefit which was not payable or only payable in part based upon the fact that the information he provided was accurate, but he says that he is deprived of the opportunity of doing in a practical way anything more than asserting that as a fact."

10 The interview in question was conducted in circumstances where the respondent did not have the fortnightly forms before him and where he was simply responding to assertions made by the interviewer. In the absence of the fortnightly forms it would be unfair to rely upon the record of that interview to say that the credibility of the respondent was "tested" by it.

11 The fortnightly forms were the only evidence which had the potential to support the respondent's defence that he had filled out the forms correctly to the best of his capabilities. As was submitted by counsel for the respondent, he is denied the opportunity to cast doubt upon the following inferences to be drawn from the prosecution evidence: (1) that the respondent had followed a systematically dishonest approach to providing income details to the department; and (2) that the Department of Social Security had not made errors when processing the information as to income on the forms.

12 Counsel for the prosecution referred me to a number of authorities on the issue of a stay in the context of destruction of evidence. In Duncombe-Wall v Police (supra) the appellant was charged with threatening to cause harm without lawful excuse. The police were called to the appellant's home to deal with a domestic dispute. The central issue at the trial was who had called the police, the complainant's son, or the appellant. The complainant said she had asked her son to call the police because she feared for her safety due to the behaviour of the appellant. The appellant claimed he had called the police because his son had become aggressive towards him. A subpoena was issued for the production of the tape recording of the 000 call which would have proved who had telephoned the police. However, before service of the subpoena the tape had been re-used thus erasing the 000 telephone call in question. There were no suspicious circumstances surrounding the re-use of the tape. The tape was the only evidence capable of corroborating the appellant's version of events, and if it had done so, the evidence given by the appellant's former wife and son would have had to have been rejected rendering it very difficult to find the appellant guilty beyond reasonable doubt.

13 Lander J held that it was essential to a fair trial of the matter that the appellant be given the opportunity to support his version of events and proceeded to order a permanent stay of the proceedings. It was not to the point that the prosecution's case was overwhelmingly strong.

14 Duncombe-Wall (supra) is on all fours with this case. In essence what counsel for the prosecution put to me was that theirs is an overwhelmingly strong case because there is evidence, in addition to the fortnightly forms from which inferences may be drawn, that the respondent is guilty of knowingly receiving a benefit to which he was not entitled in whole or in part. The fortnightly forms were not the only evidence going to the respondent's credibility, there was also the record of interview. However, this submission misses the point. The fortnightly forms were the only evidence capable of corroborating the respondent's version of events, and now they are gone for ever.

15 Holmden v Bitar (1987) 47 SASR 509 is another case which is very similar to this. In that case the respondent was charged under the Quarantine Act 1908 (Cth) with knowingly bringing five cans of meat pate into Australia. Section 86D of that Act provided that the charge "shall, in the absence of evidence to the contrary, be deemed to be proved". Thus the onus of proving want of knowledge fell on the respondent. However, the cans of pate had been destroyed by quarantine officers, thereby depriving the respondent of the opportunity to rebut the charge. In his judgment Cox J said at p517:

"Short of calling evidence from the European manufacturer, it is not easy to see how the respondent could have made any effective answer to the averments in this case. Of course, there may not have been an exculpatory answer available, even from the manufacturer. I suspect that there was not. However, it would be wrong to take that for granted. It would also be wrong to treat the appellant's objection as a mere piece of forensic opportunism, an unmeritorious attempt by a guilty defendant to avoid the consequences of her breach of the law. It may, indeed, have been both of those things, but that makes it all the more necessary not to lose sight of the important underlying principle."

16 It may well be that the respondent's version of events in this case constitutes a "mere piece of forensic opportunism", however, we can never be certain of that without the fortnightly forms. Counsel for the prosecution submitted that Holmden v Bitar (supra) could be distinguished from this case on the basis that the onus in this case lies on the prosecution, whereas in Holmden v Bitar the onus was on the respondent (defendant). In my opinion there is no distinction to be drawn on that basis. In both cases the only evidence which was capable of corroborating the story of the respondent had been destroyed the result of which being that to continue with the proceedings would result in an unfair trial.

17 Counsel for the prosecution also referred me to Heinze v Burnley (1992) 57 SASR 452 where a stay of proceedings was refused even though potentially exculpatory evidence was not available at the trial. That case involved an offence against s47b of the Road Traffic Act 1961. However, it is clearly distinguishable on the basis that the plaintiff in that case was confronted with an irrebuttable presumption created by s47g of that Act. Consequently the absence of such evidence could not have caused any prejudice to the plaintiff at the trial as it would not have been admissible to rebut the presumption in any event. Indeed, the court in that case was highly critical of the Act which gave rise to a situation where a defendant was denied the opportunity to present potentially exculpatory evidence by an irrebuttable presumption.

18 Having reviewed the relevant authorities I believe this is one of those rare and exceptional cases where a permanent stay of proceedings was appropriate. The only question remaining is whether the learned magistrate erred in ordering the stay without first hearing the evidence in support of the prosecution case.

The appropriate time to order a stay of proceedings

19 The application for a stay was made prior to the presentation of the prosecution case. Counsel for the prosecution submitted that in this case the issue of abuse of process could not have been properly considered without an evaluation of the evidence and the inferences open to the prosecution to be drawn from that evidence. It was submitted that there was evidence apart from the fortnightly forms from which an inference could be drawn that the respondent was knowingly in receipt of a benefit not payable in whole or in part, however, this evidence was either not considered, or, not given sufficient weight by the learned magistrate. Further, counsel for the prosecution submitted that the learned magistrate himself acknowledged in his judgment that to decide the issue of a stay without hearing more evidence was inappropriate. At p3 of his reasons His Honour said:

" I am mindful of the fact that I have heard absolutely no evidence, although there are certain agreed facts. I am also mindful of the fact that I have decided that this ruling must precede the trial proper and to that extent there is a limit to my knowledge of the factual setting."

20 However, the learned magistrate went on to say that he had before him a list of agreed facts and some exhibits which were tendered by consent. The agreed facts were as follows:

"1. That the defendant completed, signed and lodged an application for unemployment benefit on the 28/2/91 at Sunshine, Victoria. ...

2. That the defendant completed, signed and lodged his application for Newstart Allowance on the 31/3/92 at Sunshine, Victoria. ...

3. That the defendant's Newstart Allowance was paid into his Commonwealth Bank Keycard Savings Account number 3543 0063 7247. ...

4. The defendant received Newstart Allowance according to the schedule. This schedule also includes salary earned during the relevant period and the benefit payable based on actual income received. ...

5. The defendant was interviewed by Mr J Nunn with respect to this matter on 29/11/96 as per the record of interview.

6. The defendant was employed by Blasdom Pty. Ltd. from 17/2/93 in a casual capacity to 26/10/95. His salary was paid into the same account as per paragraph (3) above. ...

7. Details as to the defendant's employment income and hours worked at Blasdom Pty. Ltd. ...

8. That the defendant signed and lodged a form called, 'First Income Statement-Unemployment Benefit' on the 28/3/91. ..."

21 As authority for the proposition that the order for a permanent stay was made prematurely counsel for the prosecution referred to Edebone v Allen [1991] VicRp 100; [1991] 2 VR 659. In that case one of the grounds of appeal was that the application for a permanent stay on the ground that to continue with the proceedings would constitute an abuse of process was made at the wrong time. The application in Edebone was made at the conclusion of the Crown case. The appellant argued that it should have been made prior to the commencement of the Crown case. Nathan J concluded that a general rule of practice has developed that applications for permanent stays be made prior to the commencement of the prosecution case. At p661 Nathan J said:

" In my view the usual course to be adopted with applications to permanently stay proceedings is for them to be heard prior to the calling of prosecution evidence. In most cases the merits of the application will be based upon facts anterior to, and independent of, the evidence supporting the Crown case. The nature of such applications is essentially preliminary. That is, the proceedings be stayed because to go further would amount to an abuse of the court's processes. However, I cannot find common law authority for a proposition that an application for a permanent stay must be made prior to the Crown case commencing, nor can I find authority for the contrary proposition. In so far as authorities have considered the issue, it has been assumed that applications of this kind are made and disposed of as a preliminary step: see Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and all the cases therein referred to, and also Longman v R [1989] HCA 60; (1989) 168 CLR 79." (My emphasis.)

22 Counsel for the prosecution submitted essentially that the learned magistrate erred in not considering the strength of the prosecution evidence which was a necessary preliminary step in this case. However, it can be seen from the discussion above that the issue in this case was not the strength of the prosecution case without the fortnightly forms, but rather, whether denying the defendant the opportunity to corroborate his version of events without the fortnightly forms would constitute an abuse of the court's processes. It follows from this that the application for a stay was properly dealt with by the learned magistrate as a preliminary step and that the learned magistrate acted correctly in advising a permanent stay at the stage that he did.

23 I am of the view that in general an application for a permanent stay on the ground that the proceedings constitute an abuse of process should be made before the opening of the prosecution case. It would be dealt with in much the same way as a voir dire examination. If the stay application can proceed on the basis of agreed facts, well and good; otherwise it may be necessary for evidence to be called in support of, or in opposition to, the application. It is of course possible that the question of a permanent stay might arise for consideration for the first time in the course of the presentation of the prosecution case. In those circumstances it would be a matter for the discretion of the magistrate hearing the case to hear the application for a permanent stay there and then, or if appropriate in the circumstances - at the close of the prosecution case. As I see it, there is no hard and fast rule about the matter.