LOVEGROVE v SUNDSTROM No. SCCIV-00-566 [2001] SASC 122

1. LANDER J. The appellant was charged with 22 counts of knowingly obtaining a payment of an amount under a current special education assistance scheme, namely Abstudy, which was not payable; contrary to s 49(1)(b) of the Student Assistance Act 1973 (Cth). The 22 counts were for knowingly obtaining those payments over a period between 7 January 1992 and 27 October 1992.

2. He pleaded not guilty. The prosecution presented its case. At the end of the prosecution case the appellant submitted no case to answer but that submission was dismissed. Reasons were given. The appellant called evidence and gave evidence himself.

3. The first four counts which were for the period between 7 January 1992 and 18 February 1992 were dismissed.

The Magistrate imposed one penalty pursuant to s 4K of the Crimes Act 1914 (Cth). He ordered the appellant to be imprisoned for a period of five months which was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of 12 months. He ordered the defendant to pay the sum of $2,500 to cover the prosecution costs.

The appellant has appealed against both the conviction and the sentence.

Initially the appellant filed a notice of appeal in relation to conviction containing 15 grounds. During argument counsel sought to amend the notice of appeal by adding a further six grounds. Leave was given.

The appellant's notice of appeal contained three further grounds on the appeal against sentence.

In due course the appellant abandoned five grounds on the appeal against conviction and one ground on the appeal against sentence.

Those grounds were abandoned after I asked counsel for the appellant to reassess the appellant's position and to rely on only those grounds which were arguable.

Grounds of appeal which were abandoned were plainly untenable. A lot of those which remain may be described in the same way.

Counsel and those representing parties on appeal, especially Magistrates Appeals, are under an obligation, in my opinion, to restrict the complaints to those grounds which are arguable. That requires the legal representatives to make a proper assessment of the judgment which is complained of and the complaints about that judgment.

A legal practitioner who simply argues any ground which may faintly arise without any attempt at discriminating between those grounds which are arguable, and those which are not, is not fulfilling his or her duty either to the Court or to their client.

A legal practitioner has an obligation, of course, to act in the best interests of his or her client which includes, in my opinion, putting forward only a case on appeal which is arguable. Anything else is not in the client's best interests, because any good points which might be available on the appeal can often be disguised in a morass of inconsequential detail surrounded by unarguable points.

Moreover, of course, the legal practitioner who assists in the administration of justice is under an obligation to the Court to ensure that only arguable points are put before the Court. It would be inconsistent with the practitioner's duty to the Court to fail to discriminate between those points which are arguable and those which are not.

Before I indicate the grounds of appeal I shall deal with an application for an extension of time.

The notice of appeal was not filed within time. The notice of appeal indicates that the failure to file the notice of appeal within time was that of the appellant's solicitor. The appellant gave instructions to the solicitor to file the notice of appeal against conviction and sentence within time but the solicitor failed to do so as a result of the intervening Easter/Anzac Day holiday break, his extremely busy commitments and workload and the need to "draft, redraft and further draft the notice of appeal".

The respondent did not oppose an extension of time and I think, in the circumstances, properly so.

I will extend the time within which the appellant has to file the notice of appeal against both conviction and sentence nunc pro tunc to the date upon which the notice was filed.

I set out the grounds of appeal against conviction and sentence:

"1 The offences charged were not offences known to the law.

2 The Abstudy Policy Guidelines Manual (exhibit P12) was ultra vires, void, invalid, unauthorised or unenforceable.

6 The learned Magistrate did not have jurisdiction to hear and determine the proceedings.

8 The convictions were unsafe and unsatisfactory.

"The question is whether the defendant believed when he filled out his form for a 3 year course in Aboriginal Studies in music, he was enrolled for 3 years."

The learned Magistrate erred in directing himself that:-

"Obviously if the defendant had diligently attended the lectures whenever required to do so, I would infer that omission to re-enrol was a genuine mistake and that would be so whether he passed or failed provided the failure was not occasioned by non-attendance."

"I find the defendant did not attend any lectures in 1992 because I do not believe it is reasonably possible, as the defendant suggested, that witness, Newsome, Petherick and Tunstill were incorrect.

Furthermore, their evidence on that point is corroborated at least to some extent by Exhibits P9, P10 and P11"

11.3 did not have sufficient regard to the nature and quality of the evidence on this topic;

"...the inference can be drawn the defendant was on campus in 1992 purely for the purpose of practicing and rehearsing with the Country Band for public performances and the further inference is then he knew he was not entitled to Abstudy as he was not a student."

12.2 equally if not less consistent with an inference consistent with innocence to the effect that the appellant attended the campus as a student.

13. The learned Magistrate erred in finding that:-

"...it is more likely the defendant would have known of the necessity to re-enrol in view of his top position in the students association"

13.2 not the subject of cross-examination of the appellant;

13.3 contrary to the way in which the prosecution case was conducted.

14. The learned Magistrate erred in finding that:-

"I make the inference referred to above and I find the defendant, notwithstanding the upsetting aspect of his life early in 1992, had no intention of being a student and knew, therefore, he was not entitled to Abstudy and knew it was dishonest to do so."

14.2 failed to have any or adequate regard to the defence case;

14.3 failed to have any or adequate regard to the appellant's circumstances at the time;

14.4 failed to have nay (sic) or adequate regard to the appellant's Aboriginality.

15. The learned Magistrate erred in finding that:-

"...it is not reasonably possible that a defendant who appeared to me to be of reasonable intelligence would believe he was entitled to receive Abstudy when he was not in fact studying"

when such a finding was equally consistent with the appellant's innocence in the sense that the appellant was receiving Abstudy because he was studying.

16. The learned Magistrate failed to formulate any warning about the circumstantial nature of the prosecution case.

17. The learned Magistrate failed to identify his process of assessment of the credibility or reliability of witnesses and in particular the defendant.

18. The learned Magistrate failed to direct himself about the nature of the defence case.

19. The learned Magistrate failed to have regard to the presumption of innocence.

20. The learned Magistrate failed to have regard to the onus and standard of proof.

21. The learned Magistrate failed to direct himself about the elements of the offence.

2. The learned Magistrate erred in failing to have sufficient regard to:-

Before I go to the grounds of appeal, which I shall deal with seriatim, it is necessary to make some observations about the Abstudy scheme.

The Student Assistance Act 1973 (Cth) provides for an Austudy scheme (as distinct from the Abstudy scheme) and for benefits payable under that scheme. Section 7 provides that an authorised person could grant benefits under the part to the various persons mentioned in the section. The benefits which are payable under the Austudy Scheme are fixed by regulation: s 7(2). The Act provides for the appropriation by Parliament of monies for the purpose of meeting those benefits: s 10.

The Act provides for a Student Assistance Review Tribunal to review decisions made under the Act: s 15. It provides for procedures before the Tribunal and in Division 6 of Part 5 provides for a review of that Tribunal's decision by the Administrative Appeals Tribunal.

Those parts of the Act to which I have referred do not provide for benefits under the Abstudy scheme. Payments under the Abstudy scheme are made under an administrative scheme.

The Aboriginal Study Assistance Scheme (Abstudy) was introduced in 1969 to assist Aboriginal and Torres Strait Islander people to achieve their educational, social and economic objectives. The scheme was expanded in 1970 to include Abstudy schooling.

The aim of Abstudy is to encourage Aboriginal and Torres Strait Islander people to take fuller advantage of their educational opportunities and to promote the quality of education opportunity and to improve educational outcomes.

Abstudy does that by providing financial assistance to all eligible Aboriginal and Torres Strait Islander students who enrol in an approved course of study.

The scheme is administered by the Department of Employment, Education and Training and eligibility for payment is in accordance with the Abstudy policy guidelines.

Those guidelines provide that a student is eligible to apply for Abstudy assistance if; (a) he/she is applying for an award covered by the tertiary application form; (b) he/she is a school student and meets one of the independent status criteria; (c) he/she is a school student and is turning 18 years of age or over in the year of assistance or (d) he/she is a school student receiving a Commonwealth Government Pension.

Part 6 of the Act provides for the recovery of certain overpayments under the Student Assistance Act 1973 itself and under certain other Acts and administrative schemes.

Section 38 provides for the reduction in payments made under an administrative scheme where there has been an overpayment amount made to the eligible person pursuant to that scheme.

Scheme 38(2)(a) defines an overpayment amount to mean:

(ii) a special educational assistance scheme overpayment; or

(iii) a prescribed educational scheme overpayment; or

(iv) a Social Security or Veterans' legislation overpayment."

This appeal only needs to address overpayment amounts paid pursuant to a special educational assistance scheme overpayment.

In particular s 38 allows for a reduction where there has been an overpayment amount in respect of a special educational assistance scheme overpayment.

" 'Special educational assistance scheme overpayment' means an amount paid under a current special educational assistance scheme, or a former special educational assistance scheme, that should not have been paid."

A current special educational assistance scheme is also defined:

"'Current special educational assistance scheme' means:

(a) The Assistance for Isolated Children Scheme; or

(b) The ABSTUDY scheme (also known as the Aboriginal Study Assistance Scheme); or

(c) The Aboriginal Overseas Study Assistance Scheme;"

As can be seen from the definition of 'special educational assistance scheme' there are also former special educational assistance schemes. Former special educational assistance schemes are defined in s 3 of the Act to mean:

"(a) the former Aboriginal Secondary Assistance Scheme; or

(b) the former Adult Secondary Education Assistance Scheme; or

(d) The former Living Allowance for English as a Second Language Scheme"

In that way the Act recognises both current and former administrative schemes which provide special educational assistance to eligible persons. In this matter this Court is concerned only with a current special educational assistance scheme, namely the Abstudy Scheme, and I shall treat a reference to a current special educational assistance scheme as a reference only to the Abstudy Scheme, although clearly the reference is wider.

Section 38 therefore provides for the reduction in payment where there has been an overpayment to a person under the Abstudy scheme.

Section 40 provides that where there has been an overpayment of a payment pursuant to the Abstudy scheme the amount of the overpayment is a debt owed by the person to the Commonwealth.

Part 6 thereafter provides for the recovery by the Commonwealth of overpayments by way of reduction in payments or by recovery a debt.

The Act therefore performs two quite separate functions. First it makes provision for the Austudy scheme. Secondly it makes provision for dealing with overpayments made in respect of that scheme, but also other statutory schemes and administrative schemes.

That part of the Act dealing with overpayments therefore extends beyond the payments made under the Act itself.

Part 7 of the Act deals with Miscellaneous Matters. It provides that benefits are not payable under a current special educational assistance scheme (including, of course, the Abstudy scheme) unless the Secretary of the Department has been given the applicant's tax file number and in certain circumstances other persons' tax file numbers.

Section 45 allows a prescribed officer to give notice in writing to a person requiring the person to provide information in respect of the Abstudy scheme. Section 48 requires a person, who is receiving or entitled to receive an amount under the Act or under a current special educational assistance scheme, to notify the Department of the happening of a prescribed event.

Section 49 provides for offences under the Act:

(a) knowingly or recklessly make, whether orally or in writing, a false or misleading statement:

(i) in connection with a request under section 20 or 21 or an application or claim, whether made on behalf of that person or of any other person;

(ii) to deceive an officer or employee of the Department in the performance of the officer's or employee's functions or duties under, or in relation to, this Act or the regulations; or

(iii) to affect the rate of a benefit payable under student assistance; or

(b) knowingly obtain payment of an amount under this Act, or a current special educational assistance scheme, that is not payable (whether in whole or part); or

(c) obtain payment of an amount under this Act, or a current educational assistance scheme, by means of a false or misleading statement that is knowingly or recklessly made or by means of impersonation or fraud; or

(d) knowingly or recklessly make or present to an officer or employee of the Department a statement or document that is false or misleading in a material particular; or

(e) without reasonable excuse, contravene section 48.

(2) Where a person is convicted of an offence against subsection (1), the court may, in addition to imposing a penalty, order the person to pay to the Commonwealth an amount equal to any amount paid under this Act, or a current special educational assistance scheme, as a result of the act, failure or omission in respect of which the person was convicted.

(3) For the purposes of subsection (2), a certificate by a prescribed officer stating that a specified amount is the amount paid to a specified person under this Act, or a current special educational assistance scheme, as a result of a specified act, failure or omission is prima facie evidence of the matters stated in the certificate."

It can be seen the Act is quite straightforward. It specifically provides for the payment of Austudy benefits. It also recognises that benefits are payable under other enactments and administrative schemes. It provides for the recovery of overpayments made under the Austudy scheme, other legislative schemes and administrative schemes. For the reasons I have given it provides for the recovery of overpayment amounts paid under the Abstudy scheme.

Section 49 creates offences in relation to payments made under the Act or under a current special educational assistance scheme. It also creates offences for making false and misleading statements in respect of student assistance, or to affect the benefit payable under student assistance, or in the performance of an officer's duties. It also makes a contravention of s 48, without reasonable excuse, an offence.

The Act was amended by the Student Assistance Amendment Act (No. 2) 1991 (No. 147 of 1991) (Cth) to include s 55A in the principle act. Section 55A provides:

(b) the Assistance for Isolated Children Scheme; and

(c) the ABSTUDY Scheme (also known as the Aboriginal Study Assistance Scheme);

is to be made out of the Consolidated Revenue Fund, which is appropriated accordingly."

It would appear from that amendment that no provision had been made for the appropriation of payments made under the Abstudy Scheme prior to that amending Act. That part of the Act commenced on 1 January 1992 and so applied at the time these offences were alleged to have occurred.

The section provides for the appropriation out of consolidated revenue for benefits payable under the Act (Austudy) and for benefits payable under administrative schemes (Isolated Children's Scheme and Abstudy Scheme): s 3.

The Act was subsequently amended to include a Par 8 which provided for very extensive provisions in relation to a youth training scheme. The consequence of amending of amending Part 8 was to amend s 48 and s 49.

However, those amendments were made in the Student Assistance (Youth Training Allowance) Amendment Act 1994 and so have no application to these charges.

Section 49 therefore has to be considered in the form set out above. I make that observation because unfortunately the appellant's argument in respect of Ground 1 assumed that the Act was in the form of the amended Act in 1994.

The charges upon which the appellant was convicted are identical in form.

I shall set out the complaint in relation to count 5, the first of the charges upon which the appellant was convicted:

"5 On or about the third day of March 1992 at Adelaide in the said State, knowingly obtained payment of an amount under a current special education assistance scheme, namely Abstudy, which was not payable: contrary to s 49(1)(b) of the Student Assistance Act 1973 now Student and Youth Assistance Act 1973.

The defendant was not entitled to any of the said payment because he was not enrolled in 1992 in the course of study for which he had applied for Abstudy."

Abstudy is not payable under the Student Assistance Act 1973. It is payable under an administrative scheme. Any overpayment made pursuant to the Abstudy Scheme is recoverable under the Act.

The appellant argued that to knowingly obtain payment of an amount under the Abstudy Scheme that is not payable, was not an offence.

The appellant argued that s 49(1)(b) had to be understood as requiring the person charged to knowingly obtain payment of an amount under the Student Assistance Act 1973 and a current special educational assistance scheme that is not payable whether in whole or in part. In other words it was put that the charge could not be made out without proof of a person having received a payment which qualifies as both a payment under the Act and, as well, a current special educational assistance scheme payment.

In my opinion, there is no reason to read the statute that way. The word 'or' is used disjunctively so as to provide for separate offences. It is an offence to knowingly obtain payment of an amount under the Act that is not payable. It is a separate offence to knowingly obtain payment of a current special educational assistance scheme that is not payable.

Indeed there are no payments which qualify as both payments under the Act and under a current special educational assistance scheme. They are two different payments pursuant to two different schemes. That is made clear in the definition of current special educational assistance scheme. It is also clear from the whole structure of the Act.

The document referred to in Ground 2 was exhibit P12, which is a policy guidelines manual which was prepared by the Department of Employment Education and Training for the assistance of its officers.

It defines policy guidelines for the Abstudy scheme and it provides for dealing with applications, the eligibility of students, student status and benefits generally.

The Student Assistance Act 1973 recognised the Abstudy scheme. However the Act itself did not provide the legislative framework for the Abstudy scheme which is an administrative scheme. The Abstudy scheme was administered by the Department in accordance with the guidelines in the policy guidelines manual.

The appellant was not able to articulate, on this appeal, what was meant by ground 2 of the grounds of appeal. In particular the appellant was not able to point to the power which was exceeded by the publication of the manual. He was not able to articulate how the manual was otherwise void, invalid, unauthorised or unenforceable.

When pressed the appellant's counsel conceded that there was only one concept in the ground of appeal, which was that the guidelines were ultra vires. The use of the other descriptions of the guidelines "void, invalid, unauthorised or unenforceable" were no more than a complaint that the guidelines were ultra vires.

The Abstudy scheme is administered by the guidelines set out in the Abstudy Policy Guidelines Manual which is reviewed annually and updated.

It is a set of basic policy guidelines which has the approval of the Minister of Higher Education and Employment Services; A.2.1 Policy Guidelines Manual.

The purpose of the policy is to provide a scheme by which assistance can be given to those persons made eligible by the scheme in respect of their schooling and higher education.

In my opinion it cannot be said that the Policy Guidelines Manual is ultra vires any power given to the Minister. Nor could it be said that the manual was void, invalid, unauthorised or unenforceable.

When pressed appellant's counsel argued that the manual was subordinate legislation. On enquiry he said the legislation to which it was subordinate to was the Audit Act 1901 (Cth). He argued that s 73(1) of the Audit Act 1901 (Cth) allowed for the making of regulations to authorise a Minister to issue guidelines to officers performing duties in relation to matters for which that Minister is responsible being guidelines about any of the matters about which regulations may be made under the Audit Act.

In my opinion the Audit Act has nothing to do with this matter. Section 73 of the Audit Act allows the Governor General to make regulations authorising a Minister to issue guidelines about any of the matters about which regulations may be made under the Act.

These guidelines do not purport to be made under the Audit Act at all. They are administrative guidelines by which officers of the Department can determine the eligibility for payments under the scheme.

The guidelines are not subordinate legislation.

The guidelines are not ultra vires the Audit Act.

Therefore, the second ground of appeal is not made out.

The appellant argued that notwithstanding that he had been charged on a complaint and summons, the offences for which he was charged were indictable offences and he was entitled to a trial on indictment and therefore with a jury; s 80 The Constitution.

He argued that the Magistrate had exceeded jurisdiction by hearing the matter as a summary procedure. He submitted that the Magistrate should have proceeded by way of committal proceedings.

The appellant was charged with 22 offences under s 49(1) of the Student Assistance Act 1973, the penalty for which was provided in that section as imprisonment for one year.

It was argued by the appellant that because the appellant had been charged with 22 offences which made him liable to 12 months imprisonment on each count that all of the offences were indictable offences. The argument requires an examination of s 4G, s 4H, s 4J and s 4K of the Crimes Act 1914 (Cth).

"4G Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.

4H Offences against a law of the Commonwealth, being offences which:

(a) are punishable by imprisonment for a period not exceeding 12 months; or

are summary offences, unless the contrary intention appears.

4J (1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

(2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.

(3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:

(a) where the offence is punishable by imprisonment for a period not exceeding 5 years - a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or

(b) where the offence is punishable by imprisonment for a period not exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

(4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $500.

(5) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.

(6) A court of summary jurisdiction shall not impose under subsection (3) or (5):

(a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment;

(b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or

(c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.

(7) This section does not apply in relation to an offence against section 24, 24AA, 24AB or 78 or subsection 79(2) or (5).

4K (1) Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.

(2) Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person is guilty of an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.

(3) Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4) If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence."

Section 4G of the Crimes Act 1914 (Cth) provides that offences against a law of the Commonwealth, punishable by imprisonment for a period exceeding 12 months, are indictable offences. Section 4H provides offences against the law of the Commonwealth being offences which are punishable by imprisonment for a period not exceeding 12 months are summary offences.

Clearly enough the Crimes Act distinguishes between indictable and summary offences simply by whether the punishment provided for in the Act creating the offence imposes a penalty of more than or less than 12 months imprisonment, unless the contrary intention appears in that Act.

All summary offences will, of course, be heard and determined by a court of summary jurisdiction. A court of summary jurisdiction may also hear and determine an indictable offence where jurisdiction is given by a law of the Commonwealth other than the Crimes Act; s 4J(2). A court of summary jurisdiction may hear and determine an indictable offence which relates to property whose value does not exceed $500; s 4J(4). A court of summary jurisdiction, if the prosecutor and defendant agree, may hear and determine an indictable offence punishable by imprisonment for a period not exceeding 10 years: s 4J(1).

The Crimes Act therefore categorises offences and provides a regime for how they may be heard and determined.

The Crimes Act speaks only of 'offences' in s 4G and s 4H and of an offence in s 4J. It does not speak of charges for the offences. Those sections therefore refer to the statutory provision which creates the offence. In this case it is referring the various offences created in s 49. As has been seen earlier s 49 creates a number of offences each of which carries the same penalty of imprisonment for 12 months.

Each of those offences are summary offences: s 4H.

It was argued that because of the number of charges which the appellant faced the offences became indictable offences and the Magistrate was obliged to proceed to hear the matter as a committal proceeding and was not entitled to dispose of the matter summarily.

That, in my opinion, is to confuse the charges laid with the offence committed. The point of distinction is clear when reference is made to s 4K(3). Section 4K(3) allows for the joinder of "charges ... for any number of offences". The charge or the count is different to the offence described in s 4G and s 4H.

Sections 4G and s 4H are referring to the offence created by the law of the Commonwealth not the charges or counts laid for the offence against the law of the Commonwealth.

The use of the plural in 'offences' in s 4G and 4H indicates any offence against the law of the Commonwealth. It is the offence which is punishable by imprisonment for more than a year or otherwise which determines whether the offence is indictable or otherwise. It is not the number of counts of that offence which determines the character of that offence.

In my opinion, the fact that the appellant was charged with 22 counts of an offence which was punishable by imprisonment for a period of 12 months did not make those offences indictable offences.

94. Grounds 10, 11, 12, 13, 14 and 15 are really no more than particulars of Ground 8.

95. In each of those further grounds, complaint is made about findings which are said not to be open on the evidence. In some grounds there are apparently other matters raised. In Ground 11 it is alleged that the finding there referred to was not open on all of the evidence, and the Magistrate did not have sufficient regard to the nature and quality of the evidence on this topic, and was not proven by the prosecution. The particulars in par 11.2 and 11.4 are no more than the particular in par 11.1. The particulars are merely repetitive.

96. The only additional matter in par 11 is the claim that the finding amounted to a reversal of the onus of proof.

97. I do not read any of the other complaints in par 12, 13, 14 and 15 to be any more than a complaint that the particular finding should not have been made and in those circumstances the convictions are unsafe and unsatisfactory.

98. The defendant, as I have already said, was charged with 22 counts of knowingly obtaining payment of an amount under the Abstudy scheme which was not payable. The appellant was acquitted in respect of counts 1 to 4.

99. In those circumstances, it seems to me, that the Prosecution had to prove that the appellant obtained a payment under the Abstudy scheme; that such payment was not payable; and that he obtained that payment knowing that it was not payable.

100. The appellant's convictions can only stand if it can be shown that the respondent established the matters mentioned above and that payments were obtained by the appellant on each of the days mentioned in the separate accounts. The period over which the Prosecution established, on the findings of the Magistrate, the obtaining of payments was 3 March 1992 to 27 October 1992.

101. In this case the Prosecution case was that the appellant obtained benefits under the scheme having applied on a tertiary application form. A number of facts were agreed:

"1 The defendant applied for Abstudy Allowance on 17 December 1990 Annexed to this list of agreed facts and marked P4 is the 1991 Application for ABSTUDY (Tertiary).

2 In 1991 the defendant enrolled in the course "Associate Diploma in Aboriginal Studies in Music" at the Centre for Aboriginal Studies and Music, Adelaide University. Annexed to this list of agreed facts and marked P5 is the 1991 enrolment form submitted by the defendant for enrolment in the Associate Diploma in Aboriginal Studies in Music.

3 Abstudy allowance was paid in relation to the defendant from 4 March 1991 to 21 December 1991. Annexed to this list of agreed facts and marked P6 is a certificate of a delegate to the Secretary, Judith Margaret Inkster, which, pursuant to Section 51(1) of the Student and Youth Assistance Act 1973 (Cth) sets the details of this payment in 1991 & 1992.

4 On 14 November 1991 the defendant provided a 1992 Application for Abstudy Tertiary Continuing Students. Annexed to this list of agreed facts and marked P7 is the 1992 Application for ABSTUDY TERTIARY Continuing Students.

5 Abstudy allowance was paid in relation to the defendant from 8 January 1992 to 28 October 1992.

6 The payments of Abstudy Allowance referred to in paragraph 5 were paid fortnightly into the Account Number 022/0109517740 of the State Bank of South Australia, North Adelaide Branch, in the name of the defendant. Annexed to this list of agreed facts and marked P8 is a Statement of Account for Account No. 022/0109517740 from 20 December 1991 to 2 December 1992."

It can be seen from the agreed facts that the appellant applied for an Abstudy allowance in December 1990/91. In 1991 he enrolled in a course at the Centre for Aboriginal Studies at Adelaide University and he was paid an Abstudy allowance during the period 4 March 1991 to 21 December 1991.

The Prosecution also called the Deputy Manager of the Student Services Centre at Centrelink responsible for the Abstudy scheme and who had been employed by Centrelink and its predecessors since 1983.

She said, which only went to confirm the matters in the manual, that Abstudy benefits are only available to those persons who are Aboriginal and enrolled as students in an approved course. She said that the Associate Diploma in Aboriginal Studies in Music was an approved course.

She said that the appellant was paid benefits in 1991 and 1992 upon the basis that he was Aboriginal, that he was undertaking an approved course, that he was studying full time and that he was studying for the whole of the year.

There is no dispute that the appellant was an eligible person in 1991. He was an Aboriginal person, a student and enrolled in an appropriate course.

On 14 November 1991 the appellant provided a 1992 application for Abstudy Tertiary Continuing Students. That application claimed that in 1992 the appellant would be studying at the Centre for Aboriginal Studies for an Associate Diploma in Aboriginal Studies in Music.

The form indicated that he would be studying three subjects in each of semester one and two. In the first semester he would be studying Musicianship 1, First Practical Music Study and Pitjantjatjara singing. In the second semester the form indicated he would be studying Performance, Second Practical Music Study 2 and General Studies.

The appellant was paid benefits pursuant to the Abstudy Scheme from 8 January 1992 until 28 October 1992. Those payments were paid fortnightly into a bank account operated by the defendant at the State Bank of South Australia.

Thus, it can be seen that there was no dispute that the appellant obtained a payment under the Abstudy Scheme; and that payments were made over the period referred to in counts 5 to 22.

The two issues in the case were whether the prosecution had established that the amounts were not payable, and if that was established whether the appellant obtained the amounts knowing them not to be payable.

The Prosecution sought to establish that the appellant had failed to enrol in the year 1992, contrary to his application for Abstudy tertiary continuing student application which he submitted on 14 November 1991. The Prosecution also sought to prove that not only had the appellant not enrolled, he did not attend any of the courses which he claimed he would be studying in 1992.

It is to be remembered that he said that in semester one he would study Musicianship 1, First Practical Music Study and Pitjantjatjara singing, and in semester two Performance, Second Practical Music Study 1 and General Studies.

The Prosecution thereby sought to establish that because the appellant had not enrolled and, moreover, had not attended any of the courses in 1992 that it was thereby established beyond reasonable doubt that he knowingly received payments that were not payable.

The Prosecution called Donato Longo, who is the Education Administrator of the University of Adelaide. In 1992 he was acting as Head of the Student Administration Branch.

Mr Longo explained the steps necessary to enrol at the University of Adelaide. He identified exhibit P4 which was the appellant's enrolment form submitted on 7 February 1991 which he said was submitted in accordance with enrolment procedures. He also produced a copy of that enrolment application which he had obtained from the records of the University.

Next he produced the appellant's official academic transcript. That showed that the appellant was enrolled in 1991 in First Practical Music Study 1, General Studies 1, Musicianship 1, Performance 1, Pitjantjatjara Singing 1 and Second Practical Music Study 1. In all subjects he received a grade incomplete-fail.

It was his evidence that that grade meant that if the appellant wished to continue with the Associate Diploma in Aboriginal Studies in Music he needed to repeat all of those subjects.

Next he produced an extract from the University records identifying all Aboriginal students enrolled as at 24 September 1992. The appellant's name is not within that list of students. Next he produced, again from the records of the University, a list of all those enrolled in Associate Diploma in Aboriginal Studies in Music as at 9 February 1992. Again the appellant's name is not within that list.

Last he produced from the records of the University a letter written by the appellant in the following terms:

"1, Lewis Henry Lovegrove, hereby declare that I am Aboriginal and wish my University enrolment record altered to reflect that fact."

That document coupled with the earlier document listing all Aboriginal students currently enrolled tended to indicate that the appellant was not enrolled at the University in the Centre for Aboriginal Studies and Music for an Associate Diploma in Aboriginal Studies in Music.

The learned Magistrate concluded that the appellant was not enrolled as a student in 1992.

In my opinion the evidence was overwhelming and certainly enough to prove that fact beyond reasonable doubt. In due course the appellant, when he gave evidence, did not challenge the fact that he was not enrolled in 1992.

Proof of that fact, in my opinion, was sufficient to establish that the appellant was not entitled to Abstudy in 1992. It is not clear perhaps from the evidence exactly when he became disentitled to Abstudy but he was certainly not entitled to Abstudy from the date on the 5th count and up until the date of the 22nd count on 27 October 1992.

The finding of that fact coupled with the agreed facts left only one issue to be determined. That was whether the appellant knowingly obtained payments under the Abstudy scheme which were not payable. The rest of the Prosecution case was therefore directed to proving that the appellant knew he was not so entitled.

The Prosecution sought to prove the appellant's state of mind in 1992 by proving that the appellant did not attend any lectures, tutorials or undertake any study in the subjects which he represented in exhibit P7 he would study in 1992.

By that way the Prosecution sought to have the Court draw an inference that because the appellant was not enrolled and he did not attend any lectures or tutorials or undertake any study the appellant knew that he was not entitled to the payments which he received under the Abstudy scheme.

The Prosecution called three witnesses, Guy Tunstill, the then Director of the Centre for Aboriginal Studies and Music, Douglas John Petherick, a Lecturer in Performing Arts at the Centre for Aboriginal Studies and Music and in particular in 1991 and 1992 a Lecturer in Performance, and Jennifer Newsome, a Lecturer at the Centre for Aboriginal Studies and Music in 1991 and 1992.

In 1991 Mr Guy Tunstill was the Director of the Centre for Aboriginal Studies and Music which was the Department of the Faculty of Performing Arts of the University of Adelaide.

The Centre provided musical education specifically for Aboriginal people studying full time. The Centre was unique in that it provided different access options for Aboriginal people in the community to come and study at University level and also recognised the special attributes Aboriginal people brought to their music.

The Centre, offered through the University, an Associate Diploma in Aboriginal music.

Non Aboriginal people could take part but only at the level of taking units from the Centre. They were not entitled to obtain the Associate Diploma.

A person needed to study for three years full time and pass the requisite subjects to obtain the Associate Diploma.

It was part of Mr Tunstill's duties to assess enrolment applications and to approve students for enrolment.

In 1991 Mr Tunstill was called upon to assess Mr Lewis Lovegrove's application to study for an Associate Diploma in Aboriginal Studies in Music and he approved his enrolment for that year. Mr Tunstill also taught two subjects in 1991 which were attended by Mr Lovegrove, Pitjantjatjara singing and Ethno Musicology.

Mr Tunstill produced a separate role book for each study which he kept at the time and in which were made contemporaneous entries to record those people attending each session.

He was able to say, for example, by reference to the role book kept for Pitjantjatjara singing that in the first semester of 1991 the appellant attended 15 out of 57 sessions and in the second semester attended 5 out of 25. In all the appellant attended 20 out of 62 sessions. He also said that the appellant did not pass that subject or Ethno Musicology in 1991.

His records show that in 1992 that the appellant did not attend any session in respect of either subject which were again the responsibility of Mr Tunstill.

Mr Petherick lectured in Performance in 1991 and 1992. He remembered the appellant as a student in 1991. In fact he taught him the guitar. He remembered that the appellant failed in 1991 inasmuch as he failed to complete the year. He could not remember whether he did not complete by failing to submit work or failing to sit for his examination. He gave evidence that Mr Lovegrove was not a student in 1992 nor did he attend any lecture which he gave and nor did he attend for further tutorial work. He said that the appellant was not there for any subject.

Jennifer Newsome was employed in 1991 at the University of Adelaide in the Faculty for the Centre for Aboriginal Studies within the Faculty of the Performing Arts. She taught practical and theory subjects and subjects within the Associate Diploma in Aboriginal Music.

She had consulted her records for the purpose of giving evidence and identified from these records that she lectured Mr Lovegrove in 1991 in Musicianship. Mr Lovegrove, in that year, attended approximately 32 per cent of the lectures and failed to pass.

She had no record of him being enrolled in 1992 and had no record of him attending any lectures in that year.

She has no recall of Mr Lovegrove attending at the Faculty in 1992 for any reason.

During cross examination it was put to her that she had been sent a Notice Of Request For Information And/Or Documents by the Department of Employment, Education, Training and Youth Affairs. It was put to her that she had answered a questionnaire in relation to Mr Lovegrove and these matters. The letter and the questionnaire was put to her in cross examination.

The answers to the questionnaire confirmed her evidence in every respect. Indeed the questionnaire had attached to it a statement of hers in the following terms: [P13]

"The record still held by me in relation to the 1991 and 1992 academic years are private records that I have kept informally and may be incomplete. As far as I can tell from these records there is no indication of attendance by Mr Lewis Lovegrove that classes in Musicianship 1 for 1992, or of completion of set work for that year. I am not able to tell however from the records whether Mr Lovegrove was enrolled in the subject."

She attached to the questionnaire copies of the Attendance Record for Mr Lovegrove for 1991 which as I say confirmed her evidence before the Magistrate.

The Prosecution case therefore in a nutshell was that three lecturers who lectured the appellant in 1991, and who knew him, were able to say that he did not present himself in any of the courses that they taught in 1992. They were courses which he claimed in his application for Abstudy benefits (P7) he was enrolled for and would study in 1992.

The appellant gave evidence in his own defence. He called two witnesses; Mr Patrick Armstrong and Mr Phillip Lovegrove.

The appellant admitted in his evidence that he had received Abstudy payments in 1992 which had been paid into his bank account. That was consistent with the agreed facts. He understood that if he was not enrolled as a full time student he would not have been entitled to Abstudy payments. He also admitted that he had to be a student at the Centre for Aboriginal Studies and Music to receive Abstudy.

He said, however, that he believed that he was enrolled. His evidence was that he believed that his initial enrolment in 1991 was enough for him to remain enrolled in 1992. He said that he did not believe that he had to make any further applications for enrolment because he believed that his initial enrolment kept him enrolled for three years in that course.

He said that he did attend lectures in 1992. He admitted that none of the records produced by Mr Tunstill or Ms Newsome indicated that he had signed an attendance book in 1992. He said on occasions he had signed a piece of paper which was circulated instead of the attendance book. He agreed that he had never signed an attendance book in 1992. He said notwithstanding the absence of any record, he still attended lectures.

He did not say that he was a full time student in 1992 but I think that might be implied in his evidence.

In cross examination, he admitted that he knew he failed to pass in 1991 because he had failed to attend sufficient lectures. He was pressed in relation to his failure in those circumstances to sign the attendance record in 1992. In re-examination he said he did not give a damn about the attendance record.

He admitted that he resigned from the student body in March 1992. He maintained, however, that he was a student in 1992.

A reading of his evidence rather suggests that he devoted himself to band work in 1992 which was part of the performance class. Performance was a second semester subject. There is no evidence that his band work in the first semester was within his studies of Performance. It is not easy to discern from his evidence how often he attend in respect of the more formal lectures.

In any event his evidence was even if he was not enrolled, and he accepted that he was not, he believed he was and he attended the course as a full time student.

Mr Patrick Armstrong was released from prison on Home Detention in September 1991 and lived with the appellant between September 1991 and October 1992. He said that the appellant did not have a motor vehicle. On a number of occasions both in 1991 and 1992 he drove the appellant to and from the Centre for Aboriginal Studies and Music. Apparently, on his evidence at least, he was able to do that notwithstanding he was released on Home Detention. Apart from saying that he transported the appellant to and from the Centre he was not able to say whether the appellant attended any lectures or participated at all in the first year course for the Associate Diploma.

The other witness called by the appellant was his first cousin. He was an employee at the Centre in both 1991 and 1992. He was employed as an audio engineer. His evidence was that he was responsible for the recording studio which was used for the recording of music and rehearsing at the Centre. He said that the appellant used the studio both in 1991 and 1992.

He said he saw him in the studio in both years. Of course if the appellant was in the studio in 1992 it could only have been in respect of his Performance class.

There is a clear conflict of evidence between the appellant and the three lecturers called by the Prosecution. There was not necessarily any conflict between the appellant's witnesses and the three lecturers. It was quite possible that the appellant was on the campus in 1992 and did use the studio recording and rehearsal facilities.

That did not of course mean that he was attending the lectures given by the Prosecution witnesses. In the end the Magistrate had to be satisfied if the Prosecution was to succeed that he preferred the evidence of the Prosecution witnesses, and that he was satisfied on that evidence beyond reasonable doubt that the inference that the appellant knew that he was not entitled to the Abstudy payments arose.

Grounds 10, 11, 12, 13, 14 and 15, as I have said, are no more than particulars of an unsafe and unsatisfactory verdict.

However I will deal with each of the grounds quickly.

In my opinion Ground 10 has not been made out. The learned Magistrate was right to pose the question that he did, and the direction which he gave himself was not inconsistent with the question nor did it amount, as claimed, to reversal of the onus of proof. It is no more than a statement of common sense that if the Magistrate believed that there was a reasonable possibility that the appellant had attended lectures in 1992, as the appellant claimed, then he could not be satisfied beyond reasonable doubt that that element in the offence had been made out.

The statement complained of in Ground 12 was an inference which was open, in my opinion, on the evidence. On a reading of the whole of the appellant's case it was possible to conclude that the appellant attended the campus in 1992 only for the purpose of practising and rehearsing with a country band for public performances. That inference was available relying upon the evidence of the Prosecution. If that inference was drawn which, as I say, was open to the learned Magistrate then, in my opinion, the further inference that he knew he was not entitled to Abstudy allowances as he was not a student was available to the Magistrate.

It is clear from the evidence that the appellant was occupied in the Students Association and held a position of some seniority. It may be more likely that he would have been aware of the necessity to re-enrol because of the position he held but he was not cross examined about that. It was not put to him that he was aware by reason of his position in the Students Association of the obligation to re-enrol. I do not think that the finding which is complained of in Ground 13 was open to the Magistrate.

However that finding which I agree is not supported by the evidence does not, in my opinion, vitiate the reasons of the learned Magistrate for reasons which I will mention shortly.

The finding in Ground 14 was available to the Magistrate on the evidence provided he accepted the evidence of the Prosecution witnesses, rejected the appellant's evidence, and was satisfied beyond reasonable doubt on the Prosecution witness that that matter had been made out.

I think it is clear from the whole of his reasons that that was his reasoning process. Unfortunately he did not comment directly upon the appellant's evidence and did not state explicitly that he rejected the appellant's evidence. I will return to that.

The impugned finding in Ground 15 was also available to the Magistrate again provided he was satisfied of the strength of the Prosecution evidence and was not prepared to accept the appellant's evidence.

I do not believe that any of the findings which are complained of were not available to the Magistrate except the one to which I have referred. I do not think, however, that finding affects the reasoning process which the Magistrate employed in arriving at a conclusion that the appellant was guilty of the 18 counts in counts 5 to 22. It is clear enough, in my opinion, that the Magistrate did not accept the evidence of the appellant. He did accept the evidence of the Prosecution witnesses and was satisfied beyond reasonable doubt that the appellant knew that he was not entitled to Abstudy payments. I do not think the finding that his seniority in the Students Association thereby made the appellant more aware of his obligations, which I agree was not open, means that the Magistrate's conclusion is infected with error. I think that his remaining findings make it clear that he was satisfied to the requisite degree in any event.

In my opinion, it was open to the Magistrate on the evidence before him to arrive at a conclusion that the appellant was guilty of each of these counts.

I have read all of the evidence as I am obliged: M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439. The verdicts are not unsafe or unsatisfactory.

I can deal with Grounds 16, 18, 19, 20 and 21 together.

There is no doubt that a Magistrate has an obligation to give reasons which expose his or her reasoning process so as to allow the parties and an appellate court, if necessary, to properly understand the basis upon which the verdict has been given.

That requires a Magistrate to make an assessment of the credibility and reliability of the evidence before him or her and to make the necessary findings with the same degree of clarity to allow a reader to understand the basis upon which the verdict has been reached.

To fail to give reasons is an error of law: Papps v Police [2000] SASC 183; (2000) 77 SASR 210; R v Keyte (2000) SASC 382.

The adequacy of reasons must depend upon the complexity of the charges the elements of the offence, the issues in the case, the evidence which has been called, the use to which the evidence is to be made and all of the circumstances of the case.

There are circumstances where it will be necessary for a Magistrate to incorporate in his or her reasons warnings and directions which he or she have given themselves in relation to the charge under consideration.

It is not possible to say, in a vacuum, what warnings or directions need to be recorded by a Magistrate other than to say that they must include those warnings and directions which would allow someone examining the reasons to conclude that all relevant principles have been considered and correctly applied.

The appeal court needs to be able to examine a Magistrate's reasons as the Court of Criminal Appeal must examine a Judge's directions to a jury: Ghys v Crafter [1934] SAStRp 10; [1934] SASR 28 at 33. That does not mean that the reasons must replicate jury directions. It may be understood that some directions given to a jury do not need to be adverted to in the reasons of a Judge or Magistrate.

In this case the appellant complains of the failure by the Magistrate to give himself the directions in Grounds 16 and 18 to 21.

I am not sure why Ground 21 has been included. There has been no suggestion that the Magistrate failed to identify the elements of the offence or that he failed to address each of the elements of the offence.

There was in fact, when it came to a decision, only one issue in this case. That was whether the appellant had the guilty state of mind which the Prosecution was required to prove.

There was no suggestion that the rest of the elements of the offence had not been made out. The Magistrate was under no obligation to record a direction to himself about the elements of the offence.

A Magistrate is not obliged, on each occasion, when he or she gives reasons to indicate that the accused has come to court with the presumption of innocence in his or her favour. Nor is a Magistrate obliged to indicate on each occasion that the prosecution has the onus of proving each of the elements of the offence and that the accused has no onus cast upon him or her at all. Nor is the Magistrate obliged on each occasion to indicate that the charge cannot be made out unless it is established beyond reasonable doubt.

A Judge, on instructing a jury, must on each occasion bring to the attention of the jury those matters by clear and concise directions because it cannot be assumed that members of the jury are aware of those matters. On the other hand it may be presumed that Magistrates are aware that an accused comes to court with the presumption of innocence and that the prosecution has the onus of establishing the accused's guilt and must do so beyond reasonable doubt.

In R v Winner (1995) 79 A Crim R 528 Kirby P said at 530/531:

"... It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a Judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the Judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a Judge sitting alone. I question these assumptions. It is not self evident that, in instructing himself or herself, a Judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the Judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a Judge sitting alone. It should be perfectly possible for the Judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.

The Judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office: cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666. Those reasons must be adequate and appropriate to sustain the Judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a Judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal."

I am not sure what is meant by Ground 18. Of course a Magistrate must have regard to a defence case before reaching a verdict. However a Magistrate does not need to direct himself or herself that they have that obligation. That, in my opinion, is self evident. Whether or not a Magistrate has had proper regard for the defence case should be exposed in the Magistrate's reasons.

There is no doubt, in my opinion, in this case that the Magistrate did have proper regard to the defence case.

I turn to Ground 16. On any understanding of the matter the Prosecution's case in relation to proof of the appellant's state of mind when he received the Abstudy payment relied upon circumstantial evidence. That is hardly surprising. The Magistrate did not, in my opinion, need to direct himself that he had to be satisfied beyond reasonable doubt that that circumstantial evidence allowed for an inference that the appellant held the relevant state of mind.

In my opinion, none of the grounds in Ground 16, 18, 19, 20 or 21 have been made out.

Ground 17 complains of a failure by the Magistrate to identify his process of assessment of the credibility or reliability of witnesses and in particular the appellant.

There is no doubt that the Magistrate preferred the evidence of the Prosecution witnesses to that of the appellant.

The Magistrate, however, did not say in as many words that he rejected the appellant's evidence. I think, however, it is clear that he did reject the appellant's evidence and because he thought it was inherently improbable. He pointed to various aspects of the appellant's evidence which pointed up the implausibility of the evidence.

It would have been better if the Magistrate had expressly stated that he did not accept the evidence of the appellant: Gikas v Police (1999) 202 LSJS 301 at 311. However his reasons are sufficiently clear for it to be understood, on this appeal, that he did reject the appellant's evidence for the various reasons which he gave.

In my opinion, the Magistrate was entitled to reject the appellant's evidence for the reasons he gave. The appellant's evidence was, in many respects, inherently improbable. There are aspects of his evidence which were so unlikely as to be incapable of belief. For example he did not pass the subjects for which he was enrolled in 1991 because he failed to attend sufficient lectures. In those circumstances it is impossible to believe that he deliberately failed to fill out the attendance record in 1992. He must have known, as was put to him in cross examination, that his failure to fill out that attendance record would inevitable lead to him failing to pass the subjects once again.

The failure of his signature or his name to appear on any of the attendance records in 1992 indicates, in my opinion, that his evidence was, as the learned Magistrate found, incapable of belief.

In my opinion, for all of those reasons the appeal against conviction must be dismissed.

The appellant has also complained of the sentence which was passed upon him. The learned Magistrate imposed a sentence of imprisonment of five months which he suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months.

On the findings made by the Magistrate, with which I agree, these were serious offences. The appellant deliberately and knowingly obtained benefits to which he was not entitled throughout most of 1992.

Upon the facts found by the learned Magistrate, in my opinion, that sentence was well within the exercise of the learned Magistrate's sentencing discretion. There has been nothing put, in my opinion, on this appeal, which would allow it to be said that the learned Magistrate had regard to irrelevant matters or failed to have regard to relevant matters or misunderstood matters of principle.

I am not satisfied that the sentencing discretion has miscarried in any respect.

In my opinion the appeal against sentence should also be dismissed.