Citation: Regina v Moussad [1999] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 27 October 1999
Judge(s): Wood CJ at CL, Bell J, Smart AJ
Background
The appellant operated a child care centre in Blacktown and participated in the Commonwealth's Child Care Fee Relief Scheme, under which low-income families received subsidised fees paid directly to the centre. Over nine consecutive quarters between January 1991 and July 1993, she submitted quarterly claim forms supported by individual fee relief records that overstated the hours attended by children at the centre. The Crown alleged she obtained $12,182.78 to which she was not entitled.
She was charged with a single count of defrauding the Commonwealth under s 29D of the Crimes Act 1914 (Cth). The Crown particularised the charge as a single criminal enterprise, identifying 46 individual dishonest acts across the nine quarters. The appellant was convicted in the District Court and sentenced to 12 months periodic detention.
On appeal to the Court of Criminal Appeal, the appellant challenged both the framing of the charge and certain jury directions given at trial.
Legal Issues
- Whether a single count covering multiple acts of dishonesty across nine quarterly claims was bad for duplicity (that is, impermissibly combining more than one offence in one charge)
- Whether the trial judge correctly directed the jury that a single act of dishonesty was sufficient to support a guilty verdict
- Whether the lack of specific jury findings on each quarterly claim caused unfairness at sentencing
Decision
The Court of Criminal Appeal unanimously dismissed the appeal, agreeing with the reasons of Smart AJ.
On the duplicity issue, the Court confirmed that a single count is not impermissibly duplicitous merely because the Crown relies on multiple acts to prove it, provided those acts can fairly be characterised as forming part of a single criminal enterprise. The trial judge had identified several connecting features: each overstatement related to a fee relief record used to support a quarterly claim; the claims were made sequentially; there was a single written agreement with the Department; and the claims were all made in connection with the same child care centre under the same scheme. Those features were sufficient to link the acts by common purpose.
On the jury direction point, the Court found it unnecessary to resolve precisely what the trial judge had directed, because the proper approach was clear in any event: where a rolled-up count alleges a single criminal enterprise, the jury must be satisfied beyond reasonable doubt that the enterprise existed, not merely that one isolated act occurred. The Court noted that the trial judge's directions, read as a whole, adequately conveyed this requirement, and the 19-page document provided to the jury set out the Crown's allegations in detail.
Regarding sentencing, the Court acknowledged that a single rolled-up count leaves the sentencing judge to make factual findings, rather than receiving specific jury verdicts on individual acts. The Court accepted this was a recognised limitation of the approach, but held it was not a reason to disturb the conviction, particularly given the lenient sentence imposed and the absence of demonstrated prejudice to the appellant.
Orders Made
- Appeal dismissed
Key Takeaways
- A single criminal charge may lawfully cover multiple acts of dishonesty where those acts are sufficiently linked by common purpose to constitute a single criminal enterprise, even if each act could independently have been charged as a separate offence.
- Duplicity does not arise merely because a Crown case relies on numerous individual acts to prove one count, provided full particulars are supplied and the accused knows the case to be met.
- Where a rolled-up enterprise count is preferred, the jury must be directed to consider whether the enterprise itself is proven; it is not sufficient for the Crown to establish only one isolated act of dishonesty.
- In dismissing the appeal, the Court confirmed that where a single count is returned, the sentencing judge must make findings of fact consistent with the verdict and cannot simply sentence on the basis of minimum criminality.
- Sufficient connection between acts may be established through a combination of factors including a shared scheme, sequential conduct, a single overarching agreement, and conduct directed at the same target or institution.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), s 29D
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- S v The Queen (1989) 168 CLR 266
- Johnson v Miller (1937-38) 59 CLR 489
- Walsh v Tattersall (1996) 188 CLR 77
- R v Hamzy (1994) 74 A Crim R 341
- Merriman [1973] AC 584
- Locchi (1991) 22 NSWLR 309
- R v Velardi (NSWCCA, unreported, 24 May 1996)
- R v Trad & Younan (NSWCCA, unreported, 19 February 1996)
- F (1996) 90 A Crim R 356
- R v Giam (NSWCCA, unreported, 10 March 1999)
- Taylor v The Queen (1997) 93 A Crim R 1
- Carcosa Pty Ltd v Czerwanin (1997) 93 A Crim R 287
- United States v Awan (MD Fla, unreported, 5 December 1989)