1 The applicant, Zachary Aaron Mackrae-Bathory, was arraigned before the County Court of Victoria at Melbourne on an indictment preferring four counts that contrary to s.135.1(5) of the Criminal Code Act 1995 (Cth) ("the Criminal Code") he did between February 2002 and March 2003 dishonestly cause a loss to a Commonwealth entity, namely, the Department of Family and Community Services, totalling $27,319.78.[1] His wife and co-accused, Doan Phuong Trang Nguyen ("Nguyen"), was arraigned with him on two counts of aiding and abetting. Following a trial that occupied 35 sitting days, on 22 January 2006 the jury convicted the applicant of Count 1: causing a loss of $10,574.91, and Count 2: causing a loss of $16,744.87, but found him not guilty of Counts 3 and 4. The applicant had no prior convictions and, after hearing a plea in mitigation of sentence on 3 March 2006, on 10 March 2006 the judge sentenced the applicant on each of Counts 1 and 2 to a term of imprisonment of nine months,[2] thus producing a total effective sentence of nine months, and ordered, pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released after serving a period of three months of the sentence. His Honour also made reparation orders in favour of the Commonwealth. By notice dated 14 March 2006 the applicant seeks leave to appeal against his conviction on both counts.
2 In brief substance, the circumstances leading to the prosecution of the applicant and, in particular, those relating to Counts 1 and 2 were as follows.
The facts
3 The applicant commenced employment at Centrelink in 1992 and was transferred to its Richmond branch as a customer service operator in June 1999. His duties included the assessment of applications for social security payments and granting such applications as complied with Centrelink guidelines. By 1999, he had become a very experienced senior claims officer.
4 At relevant times, the Centrelink system for recording each client's claim for benefits and the payment of benefits to the client comprised a hard copy paper file as well as a computerised record. In the scheme of things, the paper file was intended to contain original claim forms, supporting documents, photocopies of supporting documents and other relevant material. In this case, however, the paper files relating to the impugned payments could not be found after the applicant left the employ of Centrelink in circumstances later to be described. The computerised record contained personal information, including names, addresses, basic claim information and details of payments and actions in respect of the claim, and payments to claimants were generated by that means principally through the computerised Centrelink system by authorised Centrelink staff. For that purpose each authorised staff member was allocated a unique "log-on" identification, and a personally set password that had to be entered on each occasion that the staff member sought access to the system.
Count 1 evidence
5 The applicant first met Nguyen in Vietnam in 1999 and saw her from time to time there. On 21 March 2001, the couple were married in Vietnam. She was also known as Trang Nguyen and her date of birth was 4 August 1982. On 29 November 2002, Nguyen was granted permanent residence in Australia and, according to the information that she provided for immigration purposes in July 2003, her home address at that time was the same as that of the applicant, namely, 13/150 Alma Road, St Kilda East. The records kept at Centrelink showed that, from 10 June 1999, the applicant's postal address was PO Box 167, East Melbourne and that, from 1 May 2001, his permanent address was 13/150 Alma Road, St Kilda East.
6 On 31 October 2001 the applicant created a computer record in the name of Trang Nguyen ("Trang") and, as was later discovered, issued her with a Health Care Card. In his evidence he said that he did so because she claimed that she required the card to qualify for an intensive course in English for immigrants. He recorded her date of birth as 4 August 1982 but listed her place of residence as being the non-existent address of 202 Gipps Street, Collingwood. In his evidence he said that he did so in order to avoid attracting attention to the fact that he and Nguyen shared a common address. His fear, he said, was that the common address would alert Centrelink officers to the fact that he and Nguyen were married and therefore to the fact that he was acting in breach of Centrelink policy that its officers not be involved in processing claims of family or friends.
7 On 27 April 2002, the applicant accessed the Centrelink computer record of Trang and changed the particulars relating to her name and date of birth to Dieu Trang Nguyen ("Dieu") and 8 April 1982, respectively. It was the Crown's case that Dieu was a fictitious identity. Evidence was given that the Victorian Registry of Births, Deaths and Marriages could find no record of a birth certificate or change of name relating to Trang or Dieu. Searches of VicRoads, Health Insurance Commission, Australian Electoral Commission and Department of Immigration, Multi-Cultural and Indigenous Affairs data also failed to locate any record for Dieu. Even the applicant said in his evidence that he was unable any longer to locate her.
8 On 28 May 2002 the applicant granted Dieu an entitlement to Youth Allowance and payments commenced. The first payment was issued by cheque and mailed to PO Box 167, East Melbourne, which was the applicant's postal address as recorded in the Centrelink records.
9 From 1 July 2002, payments of Youth Allowance to Dieu were credited to Account No. 116941774 at the 303 Collins Street Branch of the Bendigo Bank which was held in the name of Nguyen (as Trang Nguyen). The Crown case was that the account was controlled by Nguyen. Thereafter, until about March 2003, the only source of deposits into that account was the Youth Allowance paid to Dieu. Most of the deposits were withdrawn within a few days and on several occasions the withdrawal occurred on the same day as the deposit. The relevant records of the Bendigo Bank show that Nguyen (in the name of Trang Nguyen) made 11 ATM withdrawals from the above account between June and November 2002.
10 The applicant was injured in a motorcycle accident on 20 March 2003 and consequently was absent from work for some time. During his absence he did not have access to the Centrelink computer system. In that period, payment of benefits to Dieu was stopped in accordance with Centrelink's ordinary procedures. Despite the cessation of payments, however, there was no record of Dieu making any contact with Centrelink as to why her payments had ceased.
11 The total amount paid by Centrelink to Dieu from 27 April to 18 March 2003 was $10,574.91.
Count 2 evidence
12 On 22 February 2002, the applicant created a Centrelink computer record in the name of Thi Trang Nguyen ("Thi"), wherein the date of birth was shown as 1 August 1981. Later the same day, he caused Thi's identity in the computer records to be changed to "T. Trang Nguyen ("T.Trang"). He then granted her a Youth Allowance.
13 The first payments to T. Tran Nguyen were issued in late February 2002 and included benefits backdated to 26 November 2001. The applicant told the jury that T. Trang was his wife and that he believed that she was entitled to the payments. He said that the payments were backdated to the date of lodgement of the application for benefits in accordance with what he believed to be her entitlement.
14 The Crown's case was that T. Trang was a fictitious identity, just like Dieu, and it was contended that the applicant had accessed the Centrelink computer system on a number of occasions between 22 February 2002 and 18 February 2003 in order to create the appearance that the transactions were genuine; recording, amongst other matters, that he had processed review forms and assisted T. Trang with general enquiries in relation to social service benefits.
15 The payments to T. Trang were first mailed to PO Box 214, Richmond. The records of RMIT showed that to be the postal address of Nguyen (in the name of Doan Phuong Trang Nguyen). Thereafter, the payments were credited to account No. 10291353 at the Hawthorn Branch of the Commonwealth Bank, in the name of Trang Nguyen. The postal address for that account in the records of the bank was PO Box 214, Richmond. The account was opened by Doan Phuong Trang Nguyen on 30 January 2002. Apart from a cash deposit of $100, the only deposits to the account were the Centrelink payments. Each payment was withdrawn shortly after deposit, generally through an ATM.
16 On 22 July 2003 Australian Federal Police officers executed a search warrant at the applicant's residential address at 13/150 Alma Road, St Kilda East. They located numerous Centrelink hard copy documents and customer records in the name of Dieu and T. Trang. The dates on those documents indicated that many of them were issued by Centrelink some time after the applicant's last working day at the Richmond office in March 2003. In his record of interview, the applicant said that the "post-dated" Centrelink documentation found at his premises belonged to him but that he did not know why that sort of documentation would be in his possession. The applicant was then arrested and charged.
17 The total amount paid by Centrelink to Thi from 22 February 2002 to 29 March 2003 was $16,744.87.
Overview of applicant's case
18 A significant part of the applicant's case [3] was that it was his general practice to make payments available to a claimant as quickly as possible after he had concluded that the claimant was entitled to benefits and, for that reason, he often disregarded Centrelink policies and criteria for payment which he considered to be unrealistic, bureaucratic and inconsistent with the law as he understood it. Thus, he said, when he was satisfied that a person was legally entitled to a benefit, but the computer system would not allow him to give effect to his decision to process the payments, he would simply put into the computer such information as he deemed appropriate to enable the payment to be effected.
19 It was also said that, in order to assist his "clients", the applicant was in the habit of disregarding Centrelink policy on document security and, on occasions, taking relevant hard copy files to his home. He had followed those practices in connection with the payments which were the subject of Counts 1 and 2.
Applicant's defence to Count 1
20 The applicant's defence to Count 1 was that when he provided his wife with a Health Care Card in the circumstances already mentioned, he did so knowing that his actions contravened Centrelink rules - that is, knowing that it was "totally wrong to do that" - and it was for that reason that he used the name "Trang Nguyen" instead of his wife's name. Similarly, it was said he entered the non-existent address of 202 Gipps Street, Collingwood as Trang Nguyen's residential address in order to hide the fact that the client was living with him, and thereby to avoid the risk of it being discovered that he had provided a Health Care Card to his wife. As defence counsel put it to the jury in the course of final address, the applicant created "a file for his own wife and issued her with a Health Care Card to which she might or might not have been entitled, and if that had been discovered he would probably have been sacked."
21 As the story went then, a few days after creating the file the applicant advised Nguyen to make a claim for social security benefits because he thought she was entitled to them. He based that belief, he said, on the fact that he was no longer supporting her. He told her to lodge her claim at Centrelink's Windsor office. A short while later, however, a social worker passed Dieu's application for social security benefits to the applicant for processing. At about that time, the applicant said, it dawned on him that, because his wife was receiving social service benefits (or at least because he then believed she was receiving benefits), a file must have been created for his wife at the Windsor office, and therefore that there must now be two files for his wife - the original file which he created at the Richmond office for the purposes of issuing the Health Care Card, and a later one which he assumed would have been established at the Windsor office for the purpose of making payments to her. As the defence then went, the applicant became concerned about that state of affairs because it was contrary to Centrelink policy to have more than one file per claimant, and so, in order to ensure that it was not revealed that he had created a file for his wife, he effectively converted his wife's original file at the Richmond office into one for Dieu: by changing the name to Dieu and the date of birth, while leaving the fictitious address of 202 Gipps Street, Collingwood as if it were now Dieu's address. So far as he was concerned, he said, payments were then duly made to Dieu.
22 It was then said that some time later the applicant discovered that Nguyen's claim form had not been processed at the Windsor office and, therefore, that she had not been receiving any social security benefits. Consequently, he took it upon himself to create a new computer file for Nguyen at the Windsor office; albeit, according to him, that in so doing he incorrectly recorded her as Thi Trang Nguyen.[4] He said that when he then realised that he had mistakenly put the word "Thi" into the computer, he sought to delete it, but the computer program would not permit him to do so. All that he could delete, he said, were the letters "hi" leaving the whole name as "T. Trang Nguyen."
23 Thus, in summary, the applicant's case in respect of Count 1 was that Dieu was a real person who received the Youth Allowance in accordance with the computer file created by him (as a substitute for that which originally he created in the name of Trang Nguyen for the purpose of issuing a Health Care Card to his wife).
Applicant's case on Count 2
24 The applicant's case in respect of Count 2 was that he believed that Nguyen was lawfully entitled to receive special benefits at Youth Allowance rates and that the computer file he created for authorising social security payments to T. Trang was really to authorise payment of special benefits at Youth Allowance rates to Nguyen in accordance with what he believed to be her entitlement.
25 The applicant conceded that the computer file showed that T. Trang was being paid Youth Allowance - as opposed to special benefits - and he conceded that Nguyen was not entitled to Youth Allowance, as such. But he said that the reason the computer showed Youth Allowance, rather than special benefits at Youth Allowance rates, was because the computer was incapable of accommodating a full description of the payments. He claimed that the true nature of the payments was recorded in the hard copy file, which he contended was the only way in which it was capable of being done, albeit that the alleged hard copy file could not be found.
26 The applicant said that he believed Nguyen satisfied both the legislative criteria for special benefits and also the Centrelink requirements for special benefits, of which the most relevant for present purposes was hardship. It was his belief, he said, that Nguyen was experiencing hardship because she had no assets of her own and because, as a result of their strained relationship, he was in effect no longer supporting her.
27 In the end, the applicant went to the jury on Count 2 on the basis that the real issue for resolution was whether the Crown had proved beyond reasonable doubt that he did not believe that Nguyen was "in a situation of financial hardship, defined to mean absence of assets which can be realised, [and] absence of income or financial support" and his evidence in that regard was that he "never financially supported her".
Grounds of appeal
28 We turn now to the grounds of appeal. It is convenient to deal first with Grounds 1, 2, 4 and 5, which bear on both Count 1 and Count 2, and then with Ground 3, which bears on Count 2 alone.
Ground 1 - dishonesty
29 Under cover of Ground 1, it was contended that the judge erred by failing to explain to the jury adequately the concept of "dishonesty" as that term is used in s.135.1(5) of the Criminal Code Act 1995.
30 So far as is relevant, s.131.1(5) is in the following terms: