Charges:

29 charges of fraudulent obtaining Loss of Earnings benefits pursuant to s116 of the Transport Accident Act 1986 and 1 charge of providing false or misleading information pursuant to s117 of The Transport Accident Act 1986.

Plea: Not Guilty

Result:

The accused was sentenced to a 12 month adjourned undertaking with conviction and restitution in the amount of $64,371.88.

Remarks:

This matter proceeded as a contested hearing.  After withdrawing the relevant charges (1 & 2) the accused entered a plea of Not Guilty to the remaining charges.  The TAC called a total of three witness.

Witness 1, confirmed the accused had performed panel beating work for him in 2018 on a sub-contractor basis and the accused was paid cash.  Witness 1 was shown the payslips that were provided by the accused to the TAC, Witness 1 denied being the author of the payslips and confirmed he had not produced the documents and also gave evidence that there was no paper records of the accused’s employment as he did not have any. Witness 1 confirmed the accused worked for him but he did not pay the accused as much as the payslips provided.

Witness 2, a TAC employee confirmed the documentation held by TAC and tendered the appropriate documents.

Witness 3, a TAC employee tendered the accused’s bank records along with the payslips the accused had provided to the TAC and confirmed the figures contained in the said payslip did not contain proper or appropriate calculations.

After the prosecution had completed its evidence the accused gave evidence that the payslips provided to TAC were provided to the accused by Witness 1 along with extracts from Centrelink.  Under cross examination the accused maintained the defence that all payslips were provided to him by Witness 1.

At the end of all evidence submissions were provided.  The prosecution relied upon McConville v Wason to submit that charges under S117 were strict liability offences.  With respect to charges under S116 the prosecution relied on relevant case law as applicable to charges under S82 of the Crimes Act (Obtaining Property by Deception).  The Magistrate noted he believed that S82 of the Crimes Act imported an element of recklessness to the mens rea of the offending.

The defence made submissions relying on Centrelink document tendered and submitted that from the moment the TAC investigator introduced themselves to Witness 1 he went into self-preservation mode.  Defence submitted that there was no evidence before the Court to get the Magistrate to consider beyond a reasonable doubt that the payslips were provided with fraudulent intent.  Defence submitted that Witness 1 was not credible. Regarding the S117 charge the defence proposed an honest and reasonable mistake is applicable in this case – strict liability does not apply and it is inappropriate for this to be strict liability.

The Magistrate consider his decision and made the following comments.  He confirmed charge 1-2 were withdrawn by the prosecution and that charges 3 – 31 (re S116) and charge 32 (re S117) remained.

With respect to the charge under S117 – contrary to submission of the prosecution, the Magistrate could not find the offence is one of strict liability and referred to the case of McConville v Wason noting that there was some force to the argument that Witness 1 created the payslips.  The false and misleading accusations against the accused is that the accused acted as convoy who forwarded to lawyer who then forwarded to the TAC but cannot be satisfied beyond reasonable doubt, rather that the accused did not honestly and reasonably provide, therefore charge 32 was dismissed.

Regarding charges 3 – 31 under S116 – the accused was earning $700-800 per week through employment and over the next 12 months the accused was in receipt of benefits from the TAC that outweighed those legitimate earnings.  The Magistrate noted it was difficult to accept that the accused received payments from 3 February onwards completely innocently and there was recklessness with respect to the benefit obtained and this is sufficient to find charge proven, the Magistrate therefore found charges 3-31 proven.

Prosecution then confirmed that the TAC was seeking a restitution order of $64,371.86.  The Magistrate indicated he would be minded to grant restitution but would take that into account in sentencing.  Defence Counsel then submitted that a S76 or good behaviour bond was appropriate noting recklessness and not intention.

Restitution:	$64,371.88
Total Fines:	$
Disbursements:	$
Statutory Costs:	$
Professional Costs:	$

Stay: 21/2/2024