Regina v Evans Matter No Cca 60401/97 [1997] NSWSC 637 (11 December 1997)

Regina v William Evans

60401/97

11 December 1997

Gleeson CJ, Dunford J, Barr J

The Supreme Court of New South Wales Court of Criminal Appeal

60401/97 REGINA v William EVANS

JUDGMENT

GLEESON CJ: Following a trial in August 1997 before McGuire DCJ and a jury, the appellant was convicted of an offence against s29B of the Crimes Act 1914 (C'th). He was sentenced to a period of imprisonment for twelve months, to be served by way of periodic detention.

He appeals against the conviction. An application for leave to appeal against the sentence was not pursued.

The essence of the allegation against the appellant was that, whilst in receipt of a service pension and related benefits, he concealed from the Department of Veterans Affairs, over a period of some years, the fact that he was employed as a casual teacher by the New South Wales Department of School Education and was in receipt of substantial income which materially affected his pension and benefit entitlements.

Section 29B of the Crimes Act make it an offence to impose upon the Commonwealth, or any public authority under the Commonwealth, by any untrue representation, made in any manner whatsoever, with a view to obtain money or any other benefit or advantage. Having regard to the argument advanced on behalf of the appellant, I emphasise the words, "in any manner whatsoever". The maximum penalty is imprisonment for two years.

The appellant did not dispute that, in the events that occurred, he had received overpayments from the Department of Veterans Affairs in an amount in excess of $23,000. Indeed, he had repaid more than $18,000.

His principal defence to the charge against him was that he had honestly believed that receipt of income from casual, as distinct from full-time, employment did not affect his pension entitlements and was not something he was obliged to disclose to the Department. He claimed to have received verbal advice to that effect from an officer of the Department. That defence was obviously rejected by the jury.

There is no complaint in the present appeal about the manner in which the trial judge left the issues to the jury. Trial counsel made no complaint about the summing-up and there was no application for any redirection, nor is it suggested in this appeal that there was insufficient evidence to justify the jury's verdict.

The sole ground of the appeal against conviction is based upon an argument that was raised at the trial by way of what amounted, in effect, to a demurrer to the indictment.

The charge against the appellant was expressed as follows:

"That between about 6 January 1992 and about 22 December 1994 at Sydney, New South Wales, he did impose upon the Department of Veterans Affairs, a Department of the Commonwealth, by an untrue representation made by omission with a view to obtain a benefit, namely service pension, in that he failed to advise the Department of Veterans Affairs that he was employed by and in receipt of income from the New South Wales Department of School Education".

The appellant's submission is that in criminal cases deliberate silence cannot amount to an untrue representation. A representation, it is argued, must involve a communication of some kind. Therefore, it is contended, an omission in the form of a failure to advise the Department of the facts referred to in the indictment could not, in law, amount to an untrue representation within s29B, notwithstanding the presentation in that section of the words, "in any manner whatsoever".

In Greenwood v Martins Bank Limited [1933] AC 51 at 57, it was said:

"Mere silence cannot amount to a representation, but, where there is duty to disclose, deliberate silence may become significant and amount to a representation".

The appellant's reliance on that proposition fails to pay due regard to the word "mere".

Furthermore, the second part of the proposition is inconsistent with the notion that a representations must involve a communication in the form of words or action.

Whether failure to disclose information involves, or amounts to a representation, depends upon the circumstances of the case.

Whether suppression of the truth involves suggestion of falsehood is, in any given case, a question of fact.

There is no principle of law which either requires or permits that a finding of fact about such an issue may, on the one hand, be significant for purposes of the civil law, but must, on the other hand, be disregarded for purposes of the criminal law. Of course, in a criminal case questions of onus of proof may be important. However, facts are facts, whether the proceedings be civil or criminal.

It cannot be correct as a general permission that it is impossible to make an untrue representation by omission. For examples of cases where it has been said that silence can amount to a representation, see Legione v Hately [1983] HCA 11; (1982) 152 CLR 406 at 438-439; Union Bank v Puddy (1947) VLR 242 at 247; Westpac Banking Corporation v Robinson (1993) 30 NSWLR 668 at 688.

Nor can it be true, as a general proposition, that failure to advise the Department of income can never involve an omission which gives rise to an untrue representation. The facts of the present case provide a good illustration of the point.

The Crown alleged that, over the period in question, the Department wrote to the appellant a number of letters in common form, which made pointed reference to his obligation to disclose to the Department any income received by him over and above a certain, rather small amount. There was an issue of fact at the trial as to whether the appellant received such letters. However, for the purpose of testing the proposition of law presently under consideration, let it be assumed that it was established that letters were received. On that assumption, the Department repeatedly informed the appellant that his pension was income tested, that his entitlements would be reviewed if he came into receipt of any significant amount of income, and that he was obliged to notify the Department of such income. On the assumption that the appellant received that correspondence and understood it, then his failure to notify the Department of the income he received as a teacher was clearly capable in law of amounting to a representation by him to the Department which was untrue.

There was abundant evidence in the present case to support the conclusion, as a matter of fact, that in a variety of ways, and over an extended period, the Department in writing informed the appellant that his entitlements were subject to a means test and that he was obliged to notify the Department of income received by him, including income received in the capacity of a casual or part-time employee.

As was noted earlier, the appellant's principal defence at the trial was that he either misunderstood, or did not receive, that information, and that he had received contrary information from someone within the Department. Those issues were resolved against the appellant by the jury and they are not relevant to the present appeal.

What is at present relevant is that the evidence, to which reference has been made, provides the factual context in which the proposition of law advanced on behalf of the appellant is to be considered. It is unnecessary, for present purposes, to go into the detail of that evidence. It includes, for example, the form which the appellant signed in late 1991 when applying for reinstatement of his pension. The appellant is a highly educated man. He cannot have failed to understand, from the form, the significance of receipt of income.

Indeed, as McGuire DCJ observed in the course of an exchange at the trial, there must be very few people in the community who do not understand that pensions of this kind are subject to a means test.

To my mind the present is a very clear example of a case in which failure to communicate information may amount to an omission which constitutes an untrue representation.

I am unable to accept the proposition of law which forms the basis of this appeal.

I would propose that the appeal against conviction be dismissed.

DUNFORD J: I agree.

BARR J: I agree.

GLEESON CJ: The order of the court is that the appeal against conviction is dismissed.