Citation: BERBEN, Laurens v The Queen [2008] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 4 June 2008
Judge(s): Giles JA; Barr J; Hall J
Background
The appellant, a 77-year-old man at the time of trial, was convicted on two charges relating to his receipt of the age pension while employed by the Society of St Vincent de Paul. He failed to disclose that employment to Centrelink over a period spanning December 1999 to June 2003, receiving pension payments at a higher rate than he was entitled to. The total amount subject to a reparation order was $31,243.17.
The appellant's defence was unusual. He argued that he had not acted dishonestly or with any intention to obtain a benefit. Instead, he contended that he regarded the pension overpayments as compensation owed to him by the Commonwealth for what he described as a grave miscarriage of justice arising from prior Supreme Court litigation involving a company called Bay Marine Pty Ltd. He said his purpose was to "bring the law to him" and expose Commonwealth wrongdoing.
The appellant represented himself throughout, both at trial before Charteris DCJ in the District Court and on appeal. Legal aid had been refused before trial, and the appellant made no application for a stay or adjournment on that basis. He was convicted by a jury and sentenced to concurrent terms of imprisonment, with immediate release on recognisance.
Legal Issues
- Whether the trial was rendered unfair, and therefore a miscarriage of justice occurred, because the appellant was unrepresented and had been refused legal aid
- Whether the admission of certain evidence (relating to the appellant receiving the pension while in employment, including a period of Queensland employment) was improper because any prejudicial effect outweighed its probative value
- Whether the jury's verdict was open on the evidence, given the appellant's explanation that he lacked the requisite dishonest intention or intention to obtain a benefit
Decision
On the unfair trial ground, the Court found no miscarriage of justice arising from the appellant's lack of legal representation. The appellant had been refused legal aid but made no application to stay or adjourn the proceedings. He expressly told the court he was ready to proceed and did not wish to delay the trial further. The trial judge provided considerable assistance throughout, and the Court noted the established principle (following Dietrich v The Queen) that an unrepresented accused does not automatically have a right to have a trial stayed in the absence of a legal aid grant.
On the evidentiary ground, the Court rejected the submission that admission of the pension receipt evidence caused a miscarriage. The appellant had concurred in the admission of the evidence, regarding it as beneficial to his case rather than prejudicial. The Court found there was real probative value and no genuine danger of unfair prejudice; the appellant's own attitude to the evidence made it difficult to characterise its admission as harmful.
On the question of the requisite intention, the Court found the jury's verdict was well open on the evidence. The appellant's explanation, including his account of the Bay Marine litigation, his sense of grievance against the Commonwealth, and his stated motive of exposing Commonwealth delinquency, was fully put before the jury. The trial judge directed the jury clearly that the prosecution bore the burden of proving the relevant intentional elements beyond reasonable doubt. The Court held that it was well open to the jury to reject the appellant's explanation and be satisfied beyond reasonable doubt of the required mental elements for both charges.
Orders Made
- Appeal dismissed
- Conviction confirmed
- Reparation order of $31,243.17 (made at first instance) stands
Key Takeaways
- An unrepresented accused who makes no application for a stay or adjournment, and who positively elects to proceed to trial, will face significant difficulty establishing that the absence of legal representation constituted an unfair trial amounting to a miscarriage of justice.
- Where an accused concurs in the admission of evidence and regards it as favourable to their own case, there is a high bar to later arguing on appeal that the evidence should have been excluded for prejudice.
- A genuine belief that one is owed compensation by the Crown, or a stated intention to expose government wrongdoing, does not preclude a jury from finding the requisite dishonest intent in a fraud or benefit-obtaining offence.
- In dismissing the appeal, the Court confirmed that the assessment of a defendant's credibility and intention remains properly within the province of the jury, provided the defence case is fully and fairly placed before them.
- The Court of Criminal Appeal applied Dietrich v The Queen (1992) 177 CLR 292 and Gassy v The Queen [2008] HCA 18 in assessing the right to counsel and the fairness of proceeding without legal representation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 29B
- Criminal Code 1995 (Cth), s 135.1(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases:
- Dietrich v The Queen (1992) 177 CLR 292
- Gassy v The Queen [2008] HCA 18