BERBEN, Laurens v The Queen [2008] NSWCCA 125

New South Wales Court of Criminal Appeal

CITATION: BERBEN, Laurens v The Queen [2008] NSWCCA 125

HEARING DATE(S): 27 May 2008

JUDGMENT DATE: 4 June 2008

JUDGMENT OF: Giles JA at 1; Barr J at 34; Hall J at 35

DECISION: Appeal dismissed.

CATCHWORDS: Conviction appeal - receipt of age pension while in employment - no issue that was received - relevant issue an intention of obtaining a benefit or dishonestly obtaining a gain - unrepresented accused - no application for stay or adjournment - whether miscarriage because unfair trial due to lack of representation - evidence of receipt of age pension while in employment - admitted with accused's concurrence - whether miscarriage because danger of prejudice outweighed probative value - accused's explanation of why he did not disclose employment put before jury - whether open to jury to be satisfied beyond reasonable doubt of requisite intention - appeal dismissed.

CASES CITED : Dietrich v The Queen (1992) 177 CLR 292; Gassy v The Queen [2008] HCA 18.

PARTIES: Laurens Leonard Berben - Appellant The Queen - Respondent

FILE NUMBER(S): CCA 2006/5273

COUNSEL: Appellant in person R A Evans - Respondent

SOLICITORS: Commonwealth Director of Public Prosecutions, Canberra - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/71/0078

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 22 November 2006 (summing-up and verdict)

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5273 DC 05/71/0078

GILES JA BARR J HALL J

Wednesday 4 June 2008 Laurens BERBEN v THE QUEEN Judgment 1 GILES JA: The appellant was charged with two offences in relation to receipt of the age pension. 2 One charge, of an offence under s 29B of the Crimes Act 1914 (C'th), was that he- "Between 3 December 1999 and 23 May 2001 at Wagga Wagga in the State of New South Wales imposed upon the Commonwealth by an untrue representation made by omission, in that he failed to advise Centrelink that he was in receipt of earnings from the Society of St Vincent De Paul with a view to obtain a benefit, namely payment of Age Pension at a higher rate." 3 The other charge, of an offence under s 135.1(1) of the Criminal Code 1995 (C'th), was that he - "Between 24 May 2001 and 17 June 2003 at Wagga Wagga in the State of New South Wales, did something in that he failed to advise Centrelink that he was employed by an [sic] in receipt of income from the Society of St Vincent de Paul, with the intention of dishonestly obtaining a gain, namely the Age Pension at a higher rate, from another person which is a Commonwealth entity, namely Centrelink." 4 In November 2006 the appellant was tried before Charteris DCJ and a jury. He was found guilty and was convicted. 5 The trial judge sentenced the appellant to concurrent periods of imprisonment, but ordered his release forthwith upon giving recognisances for $100 conditioned that he be of good behaviour for two years. His Honour made an order for reparation of $31,243.17. 6 The appellant appealed against his conviction. He represented himself, as he had done at the trial.

Some procedural history 7 An incomplete procedural history can be gleaned from the appeal papers and from information in the written submissions which does not appear controversial. 8 At some time prior to or in January 2006 the appellant was committed for trial. He applied for legal aid, which was refused on 18 January 2006, and his appeal to the Legal Aid Review Committee was declined on 20 March 2006. 9 The appellant's trial was listed to proceed in April 2006. At a mention before Norrish DCJ on 3 April 2006 the appellant told his Honour of the refusal of legal aid, and said that he was ready to proceed if his witnesses were available. He provided a list of his witnesses, which led to the judge asking about their relevance to the trial and the appellant's defence. The judge foreshadowed an inquiry into the appellant's fitness to plead. 10 The matter again came before the judge on 10 April 2006. In the result, the appellant attended psychiatric examinations. When and how the inquiry was conducted did not appear, but the appellant was found fit to plead. 11 It seems that the appellant's trial commenced before Norrish DCJ, perhaps in May 2006. The trial judge was later told that it "was aborted". 12 The trial leading to the appellant's conviction was then held in November 2006. The trial judge asked the appellant if he was ready to proceed, and the appellant said that he did not wish to delay it any longer. As Norrish DCJ had done, the trial judge sought to understand the appellant's defence, and expressed strong doubt and invited the appellant to consider pleading guilty because he might lose the benefit of a sentencing discount. The appellant was firm in his wish to plead not guilty, and did not ask that the trial be deferred; in his opening address to the jury he said "And I'm here because I want to be here. As the Crown Prosecutor said, I want my day in court", and "I wanted my day in court and that's what I'm having." 13 The trial judge was told that there had been an aborted trial before Norrish DCJ. There is nothing to show that the trial judge was made aware of the legal aid history. After the Crown case had closed he was made aware of the fitness to plead inquiry, when the appellant sought to tender the psychiatric reports.

The trial 14 The appellant was born in September 1929. He was aged 70 years and over at the time of the offences and 77 at the time of the trial, and is now aged 79. 15 The evidence in the Crown case entitled the jury to find, and it was not disputed by the appellant at the trial, that the appellant had been employed and paid by the Society of St Vincent de Paul over the period December 1999 to June 2003; that he did not tell Centrelink of his employment or payment; and that he received payment of the age pension from Centrelink which he would not have received had he told Centrelink of the employment or payment. The evidence included, in a record of interview with a Centrelink officer, that the appellant was aware that he should disclose his employment to Centrelink, which the appellant did not contest. On the evidence, it was open to the jury to find that the appellant had spent the money, or at least a large proportion of it. 16 In the manner next described, the issue at the trial was whether the appellant's failure to advise Centrelink of his earnings was with a view to obtaining the benefit of payment of the age pension at a higher rate or with the intention of dishonestly obtaining the gain of the age pension at a higher rate, or with some other view or intention. 17 The appellant gave evidence at the trial. Both through the record of interview and in his evidence he told of litigation in the Supreme Court involving a company Bay Marine Pty Ltd and events thereafter, which he said had brought to an end his business life and meant financial ruin and family detriment. The tale was long and, from inherent difficulties, not easy to follow. The appellant considered that there had been a grave miscarriage of justice, and on his own account he had become obsessed with the litigation and its consequences. He blamed the Commonwealth for what had happened, it seems because he through its corporate record-keeping entity had incorrectly recorded shareholdings in Bay Marine Pty Ltd. The themes of his evidence were that he regarded receipt of the age pension notwithstanding his paid employment as compensation for the wrong done to him, or as atoning for what he regarded as contempt of court by the Commonwealth, and that he had acted as he had in order to "bring the law to him" and expose the Commonwealth's delinquencies. 18 The trial judge, who afforded every assistance to the appellant by explanation and procedural guidance and in other respects, sought carefully to draw together the appellant's case for the jury. Without being exhaustive, the summing-up included - "He told you, in effect, that he was aware that when he obtained paid employment with St Vincent de Paul that he should have advised Centrelink but he, in effect, said to you he was not motivated by dishonesty or an intention to obtain a benefit. He was motivated by seeking to have, to use his words, the law come to him, and he sought to explain to you the history of the litigation."

"He stated also that he considered the money he was receiving from the aged pension was his in any event in that it was no more than the return to him of what was owed to him by the Commonwealth. He explained to you that it was his view that the Commonwealth had failed to protect his interests in respect of the failed litigation and that there had been a substantial miscarriage of justice. The Commonwealth had ignored its responsibilities – he intended by his behaviour, amongst other things, to bring the law to him and to expose the Commonwealth."

"He particularly directed your attention to those elements that the prosecution has to establish concerning his dishonest intention. He put to you that you would not be satisfied that, when he failed to notify Centrelink that he was working, he was acting in a dishonest way whatsoever. He was not intending, as regards the first count, to obtain a benefit. He had not made an untrue representation, he submitted. He was merely, on one submission he made to you, being paid that which was owed to him.

As regards the second count, he said that he had not acted dishonestly. He could understand that people would take the view he was acting dishonestly if they did not know all of the facts. He drew your attention to what he said were the facts. He identified what he said were the facts of the case. He said he had omitted to declare income. His purpose was to get the matter to court because no-one had told him the basis of that decision – he put to you that the 'law was in contempt of court' and he decided to let the law or the court come to him. He said that his motive was to obtain an interest or a benefit that the law had already given him. He was merely seeking to correct a major miscarriage of justice. He had not acted dishonestly. He had not the required intent that the prosecution was seeking to prove. He submitted to you that his intention was not dishonest.

In closing he said to you that you would not be satisfied that he intended to dishonestly obtain any benefit whatsoever." 19 From the jury's verdicts, they were satisfied beyond reasonable doubt that the appellant had acted with a view to obtaining the benefit and with the intention of dishonestly obtaining the gain, as required for proof of the respective charges.

The appeal 20 The appellant did not frame grounds of appeal in the manner ordinarily found. Much of his submissions was concerned with the miscarriage of justice which he considered he had suffered in relation to Bay Marine Pty Ltd and the consequential events, and the Commonwealth's responsibility for what had befallen him. Three matters can be distilled from the submissions. 21 The first matter is that there was a miscarriage of justice because the trial judge should have adjourned or stayed the trial until the appellant had legal representation: Dietrich v The Queen (1992) 177 CLR 292. 22 The trial judge was not told about the appellant's legal aid position. Nor was he told anything about the appellant's means, although it would no doubt have appeared in general that the appellant was without significant personal means. The appellant did not apply for an adjournment or a stay, or indicate other than that he was ready to proceed; on the contrary, he wanted his day in court. 23 The basis of Dietrich v The Queen is the right to receive a fair trial. Lack of representation does not of itself mean a miscarriage of justice because a trial will be or was unfair. The question is whether in the particular circumstances the appellant could not or did not receive a fair trial: Dietrich v The Queen at 311 per Mason CJ and McHugh J, 325 per Brennan J, 343 per Dawson J; Gassy v The Queen [2008] HCA 18 at [150] per Crennan and Kiefel JJ. 24 Application for an adjournment or a stay was not made, and assuming that the offences were serious offences within Dietrich v The Queen principles it should be asked whether there was a miscarriage of justice because want of legal representation meant that there was error in the conduct of the trial occasioning a miscarriage of justice. In my opinion, there was not. As I have said, the trial judge afforded every assistance to the appellant and the appellant's case was brought out and put before the jury. 25 The second matter was that what were described as "uncharged criminal acts" had been allowed into evidence, but should have been rejected because the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant (Evidence Act, 1995 (C'th) s 137). The reference to uncharged criminal acts appeared to be to part of the record of interview, in which the appellant was asked whether he had failed to notify Centrelink of work other than for the Society of St Vincent de Paul and he said that he had done some casual work for a catering firm in 1997 or 1998 or 1999 in Queensland; the work "might have lasted for twelve or eighteen months". 26 Before the Crown Prosecutor tendered the record of interview he told the trial judge that it had been "edited by the Crown" because Norrish DCJ had thought that it contained irrelevant material "essentially related to some further employment that Mr Berben had engaged in other than his St Vincent de Paul employment, which was never investigated by Centrelink and led to any charges but which his Honour thought was prejudicial". The Crown Prosecutor informed the trial judge that, having spoken to the appellant that morning, he understood that the appellant now took the view that notwithstanding what had previously happened "he wants the interview to go in as a whole". The trial judge asked the appellant whether that was his considered position, and the appellant said that he did; the transcript continues - "HIS HONOUR: You want it all to go in? You don't take any objection to any portion of the recorded interview? ACCUSED: No. The proceedings have slightly changed and it was the view of the good judge before that it was prejudicial to me, that it goes to my character that it was in. HIS HONOUR: But you don't maintain that objection before me and you don't wish to make any submissions that I should exclude any of the record of interview? ACCUSED: Yeah, the submission I make is that it should go in in its entirety." 27 That occurred. When a little later the relevant tapes were tendered, the appellant said, "No problem. No objection." The trial judge's summing up included reminding the jury that the appellant had put to a witness from Centrelink that he had been frank with the interviewer and had drawn to the witness' attention that he had volunteered to the interviewer that he had also worked in Queensland for a short period of time, and that the appellant - " … has submitted to you that he has been honest with the investigator of this matter, that he has not made any false statements. The only allegation against him is that he omitted to do certain things. He puts to you that you will find that he was honest with the investigator, he volunteered material that was against his interest and you will take that into account in weighing up all of the matters you have to consider in the case." 28 The evidence was not objected to. Rule 4 of the Criminal Appeal Rules applies. The trial judge would not have been obliged to reject this part of the record of interview. There was no issue over the appellant's failure to disclose to Centrelink his employment and payment by the Society of St Vincent de Paul, and the appellant's explanation for his conduct was equally applicable to the time of his Queensland employment. There was probative value in the Crown case, and no real danger of prejudicial effect; the appellant regarded the effect as beneficial rather than prejudicial. The evidence was deliberately not objected to, for a perceived benefit which was not irrational, and I do not think there was a real detriment to the appellant and certainly not a miscarriage of justice. In my opinion, leave to rely upon failure to reject this evidence should be refused. 29 For completeness, I do not regard the appellant's stance as to this evidence as any basis for an unfair trial through lack of legal representation. 30 The third matter, enmeshed in an account of the litigation concerning Bay Marine Pty Ltd and subsequent events, was that the appellant had not acted with the view to obtaining the benefit or with the intention of dishonestly obtaining the gain required for the respective charges. It was not directly put that way, or in the terms that the jury's verdict was unreasonable or could not be supported having regard to the evidence (Criminal Appeal Act 1912, s 6(1)), but that would have been its legal expression. 31 In his account of the litigation the appellant referred to his obsession, and said that he had been identified as suffering a justice neurosis. Within his submissions could be discerned the contention that he had acted as he did because of the miscarriage of justice for which he blamed the Commonwealth, and in order that the law should come to him and the Commonwealth's delinquency be investigated and disclosed. The submissions included that his motive had not been to steal, but to get what the Supreme Court gave him – this was not entirely clear, but appeared to mean that the intentional elements of the charges had not been present. 32 However, that was a matter for the jury. As earlier described, the appellant's case that he had not acted intending to obtain a benefit and had not acted dishonestly was put before the jury. The jury were fully directed that it was for the prosecution to prove beyond reasonable doubt the respective intentional elements of the offences. It was well open to the jury to be satisfied beyond reasonable doubt of those intentional elements, and that the appellant was guilty of the charges.

The result 33 I propose that the appeal be dismissed. 34 BARR J: I agree with Giles JA 35 HALL JA: I agree with Giles JA. **********

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