Marlene Joy Taylor v R [1997] TASSC 5;

Marlene Joy Taylor v R [1997] TASSC 5; - TASSC 1997 case summary — Zoe

[11]

"1 The learned trial judge erred in directing or ruling that it was not a defence for the appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned trial judge erred in exercising his discretion to allow the indictment to be amended by the deletion of the words '... to which she was not entitled'. 3 The learned trial judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That the appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That the learned trial judge erred in failing to instruct the jury as to the use of the evidence referred to in ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect. 3E That the learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

[36]

18. It is important to note at the outset that the indictment pleads neither act nor omission relied upon by the Crown as constituting the relevant dishonest conduct. The so called particulars are not particulars at all. They merely re-state the crime and the alleged result of its commission viz, the obtaining of a sole parent pension in about the sum of money specified in each count. This is contrary to the Criminal Code, s311(1) which requires that in addition to a statement of crime, the indictment include "such particulars as may be necessary for giving reasonable information as to the nature of the charge." The learned trial judge adverted to this before the Crown opened its case. At the same time, the learned trial judge raised the question of duplicity (although not using that word) with senior counsel for the Crown at the trial. His Honour questioned whether the Crown case was that the appellant committed a crime each time she received a benefit. Senior counsel for the Crown described the indictment as a "rolled up charge" and said that the Crown case was that "at all times" the appellant was living in a bona fide domestic relationship with her husband. I should interpolate here that we were informed by counsel for the respondent on the hearing of the appeal, that there were three counts instead of a single count of defrauding the Commonwealth because the penalty sections in the Crimes Act 1914 (Cth) were twice amended during the period the Crown alleged that the appellant had defrauded the Commonwealth. He said that the commencement dates particularised in counts 2 and 3 coincided with the dates those amendments took effect. Counsel's statement that the Crown case was that at all times the appellant was living in a bona fide domestic situation with her husband totally failed to address the question asked by the learned trial judge. There is nothing dishonest or fraudulent in a married woman living with her husband. Had counsel directed his mind to the issues in the case, he would have answered the learned trial judge's question by identifying the appellant's conduct in which the Crown alleged she engaged, dishonestly and with the intention of causing the Commonwealth to pay her a pension. There followed this exchange between senior counsel for the Crown and the learned trial judge:

[63]

38. The Crimes Act, s29D does not create a separate offence for each payment but I am of the opinion that the indictment is nonetheless bad for duplicity and the convictions must be quashed. The indictment and particulars pleaded that on thirty-one occasions over 6.5 years the appellant dishonestly made statements to the Department of Social Security with the intent and the result of obtaining benefits. Although the statute creating the offence did not fix on the obtaining of a benefit as in Walsh v Tattersall, the indictment and particulars together focus on the obtaining of benefits as a result of making a specified number of false statements. The indictment and the particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs. The pleaded case focussed on precisely identified false representations, each made with the intention of obtaining the benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made. The indictment and particulars did not allege a breach of s29D upon receipt of each payment, but they did allege a breach of that section each time a particularised false statement was made and ayments of benefit resulted. Such payments continued until the next statement was made. To illustrate the significance of the way the case was pleaded, I draw attention again to the fact that the first statement made after s29D was enacted was dated 13 September 1985. Count 1 alleged the commission of a crime between 1 November 1984 and 12 June 1986. The particulars pleaded that the appellant made a false statement in the review form dated 10 October 1984 but at the time that statement was made, s29D did not exist. Accordingly, the only possible case that could have been made against the appellant between 1 November 1984 and the time she made the statement on 13 September 1985, was that she practised a deceit by failing to notify the Department of Social Security that the statement made on 10 October 1984 was false. However, the case was not so pleaded and accordingly the particulars only supported a very small part of the period charged by count 1.

[69]

"1 The learned Trial Judge erred in directing or ruling that it was not a defence for the Appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned Trial Judge erred in exercising his discretion to allow the indictment to be amended by deletion of the words '... to which she was not entitled'. 3 The learned Trial Judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the Appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That [sic] the Appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the Appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That [sic] the learned Trial Judge erred in failing to instruct the jury as to the use of the evidence referred to in Ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the Appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect ie the jury should have had a reasonable doubt as to the element of deceit. 3E The learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the Appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

[77]

"In Wai Yu-tsan v R [1992] 1 AC 269 it was held sufficient to constitute a defrauding that a deceit, and the same may be said of concealment, has caused the imperilment of the economic interest of the person deceived or, in the case of bodies corporate and polities, the economic interest of the body on behalf of which that person is acting. The Judicial Committee approved reasoning of the English Court of Appeal in R v Allsop (1976) 64 Cr App R 29 which included the following observations (at 31, 32): 'Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss. We see nothing in Lord Diplock's speech to suggest a different view. "Economic loss" may be ephemeral and not lasting, or potential and not actual; but even a threat of financial prejudice while it exists it [sic] may be measured in terms of money. ... Interests which are imperilled are less valuable in terms of money that those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered by that other in this context.' The Supreme Court of Canada has also approved that reasoning: R v Olan (1978) 41 CCC (2d) 145 at 150; Vézina v R (1986) 25 DLR (4th) 82 at 96. Nor is it in our opinion inconsistent with any authority binding on this court. In our opinion the learned trial judge's directions in relation to the required detriment were both legally correct and apt in reference to the circumstances which the evidence disclosed. At the time of the trial it was not possible to say with certainty that the Commonwealth would suffer economic loss in consequence of the concealment alleged in that count. It was possible that thereafter the Chaplins would be compelled to pay the whole of the aggregate debt of $3,800,000 together with interest thereon. But there could be no room for doubt that the concealment if it had occurred as the Crown contended had imperilled the economic interest of the Commonwealth."

[86]

"1 The learned trial judge erred in directing or ruling that it was not a defence for the appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned trial judge erred in exercising his discretion to allow the indictment to be amended by deletion of the words '... to which she was not entitled'. 3 The learned trial judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That the appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That the learned trial judge erred in failing to instruct the jury as to the use of the evidence referred to in ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect. 3E The learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

[147]

"Now, I think that there are one or two things that can be said with confidence about the meaning of this word 'defraud.' It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person. Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by 'to defraud.' It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young.' There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss. Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed, vol 4, at p 247) called 'to the prejudice of another man's right.' East, Pleas of the Crown (1803), vol 2 at pp 852, 854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.' Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver's intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated."

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Judgment (169 paragraphs)

Marlene Joy Taylor v R [1997] TASSC 5; (1997) 6 Tas R 310 (19 February 1997)

Parties

Cases Cited (11)