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Court of Criminal Appeal 8 December 1999

REGINA v. CLOGHER

[1999] NSWCCA 397

Fraud & dishonesty
CRIMINAL LAW APPEAL NATURE OF MATERIALITY DIRECTIONS TO JURY.

Citation: Regina v Clogher [1999] NSWCCA 397
Court: NSW Court of Criminal Appeal
Date: 8 December 1999
Judge(s): Meagher JA, Newman J, Greg James J

Background

The appellant was the secretary and a director of a construction company that had entered into two contracts with the NSW Department of Public Works for sewerage infrastructure works. Under those contracts, the company was entitled to submit monthly progress payment claims. Clause 43 of the contracts required the company to provide statutory declarations with each claim, confirming that all workers, subcontractors, and suppliers had been paid all monies due under the contract.

The appellant personally executed three statutory declarations in the standard form, each declaring that no amounts remained outstanding to workers, subcontractors, or suppliers. Evidence at trial established that, at the time each declaration was made, substantial sums were in fact owed to those parties. The company subsequently went into liquidation.

The appellant was convicted in the District Court at Newcastle on three counts of making statements false or misleading in material particulars with reckless disregard as to their truth, intending to obtain money for the company, contrary to s 178BB of the Crimes Act 1900. She appealed to the Court of Criminal Appeal, contending that the trial judge had misdirected the jury.

  • Whether the trial judge erred in failing to direct the jury to acquit on each count.
  • Whether the statements in the statutory declarations could constitute "material particulars" under s 178BB, given that the contract gave the Department a discretion about whether to require a declaration at all.
  • Whether the trial judge's directions incorrectly removed the factual question of materiality from the jury.
  • Whether the trial judge failed to direct the jury that the Department retained a broad contractual discretion to make payments without requiring a statutory declaration.

Decision

The central argument on appeal was that the statutory declarations could not amount to "material particulars" because the Department had a contractual discretion as to whether to require them in the first place. The Court rejected this contention. Materiality does not depend on whether the provision of a statement was contractually mandatory. The relevant question is whether the information was capable of influencing the Department's conduct, not whether it was strictly required to trigger payment.

Greg James J, with whom Meagher JA and Newman J agreed, held that the evidence of the Department's civil engineer plainly demonstrated that the information in the declarations was important to the Department when considering the claims. The fact that, even if outstanding amounts were disclosed, the contractor could still ultimately receive the certified sum did not render the contents of the declarations immaterial. The declarations provided significant relevant information capable of influencing the course the Department might take.

On the directions grounds, the Court found that the trial judge did not withdraw the materiality question from the jury. His Honour directed the jury on how the statements could, in the factual circumstances, be material and left the ultimate determination to them. No misdirection was established. The Court also noted that the evidence that the declarations and their contents were material was overwhelming, making it difficult for the appeal to succeed in any event.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 178BB of the Crimes Act 1900, a statement is a "material particular" if it is capable of influencing the conduct of the recipient. It is not necessary that the statement directly determine whether or how much money is paid.
  • A conviction for making false statements with intent to obtain money for another does not require proof that the false statement was contractually necessary to trigger payment. The broader potential influence of the statement on the decision-maker is sufficient.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge directing the jury on how statements could be material in the specific factual context, while leaving the ultimate question to the jury, does not constitute an impermissible withdrawal of a factual issue.
  • No error was established in the trial judge's failure to direct the jury specifically about the Department's contractual discretion to waive the declaration requirement. That discretion did not negate the materiality of the statements actually made.
  • The Court followed the approach to materiality articulated in cases including Regina v Maslen & Shaw (1995) 79 A Crim R 199 and Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348, treating the concept broadly rather than confining it to statements that operate as a legal precondition to payment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178BB

Cases
- Regina v Maslen & Shaw (1995) 79 A Crim R 199
- Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
- Regina v Gervaise & Preece (NSW CCA, unreported, 13 November 1997)
- Regina v Traino (1987) 27 A Crim R 271