Adamson v O'Brien
[2008] NTSC 8
•15 FEBRUARY 2008
Adamson v O’Brien & Anor [2008] NTSC 8
PARTIES:ADAMSON, Peter Francis
v
O’BRIEN, Jamie Thomas
and
KENNEDY, Gavin Dean
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA46 of 2007 (20630482)
DELIVERED: 15 FEBRUARY 2008
HEARING DATES: 17 DECEMBER 2007
SUPPLEMENTARY WRITTEN 11 and 22 January 2008 and
SUBMISSIONS RECEIVED: 13 February 2008
JUDGMENT OF: MARTIN (BR) CJ
APPEAL FROM: MR V LUPPINO SM (CSJ No 20630482)
CATCHWORDS:
APPEAL – JUSTICES
Appeal against conviction and sentence – stealing – Lord Mayor – use of allowance – ownership of goods purchased – fiduciary relationship – trust – appropriation – duplicity – document required for accounting purposes – sentence – abuse of trust – appeals dismissed.
Local Government Act 2005 (NT), s 7, s 34, and s 142A;
Justices Act 1928 (NT), s 177(2)(c), s 177(2)(f), s 181, s 182, s 183;
Criminal Code Act 2002 (NT), s 209, s 209(1), s 209(3), s 210, s 233(b), s 235, s 303, s 305, s 310(2)(3)(4) and s 321; Sale of Goods Act 1980 (NT), s 22Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Weiss v The Queen (2005) 224 CLR 300; R v Poulier [2007] 19 NTLR 91; R v Jenkins (2002) 6 VR 81, applied.
Director of Public Prosecutions v Merriman [1973] AC 584; R v GNN (2000) 78 SASR 293; R v Heinze (2005) 153 A Crim R 380, followed.
Walsh v Tattersall (1996) 188 CLR 77; R v Moussad (1999) 152 FLR 373; Attorney-General’s Reference (No 1 of 1980) [1981] 1 All ER 366; R v Holt (1983) 12 A Crim R 1; Tesco Supermarkets Ltd v Nattrass [1972] AC 153, considered.
REPRESENTATION:
Counsel:
Appellant:A Kimmins and P Maley
Respondent: W J Karczewski QC
Solicitors:
Appellant:Price & Roobottom
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: A
Judgment ID Number: Mar0801
Number of pages: 69
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAdamson v O’Brien & Anor [2008] NTSC 8
No. JA 46 of 2007 (20630482)
BETWEEN:
PETER FRANCIS ADAMSON
Appellant
AND:
JAMIE THOMAS O’BRIEN
First Respondent
AND
GAVIN DEAN KENNEDY
Second Respondent
CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 15 February 2008)
Introduction
The appellant was charged with four offences arising out of his conduct while holding the office of Lord Mayor of the City of Darwin. During a lengthy contested hearing, a Magistrate found there was no case to answer with respect to the charges in counts 1 and 3 and dismissed those counts. After the appellant had given evidence, his Honour found that counts 2 and 4 were proven being offences of stealing and furnishing false information with intent to deceive.
Detailed reasons for decision were delivered by the learned Magistrate on 13 July 2007. Following submissions concerning sentence, on 4 September 2007 his Honour convicted the appellant of both offences and imposed sentences of three months and four months imprisonment to be served cumulatively, thereby imposing a total sentence of seven months imprisonment. His Honour ordered that the sentences be suspended after the appellant had served two months and fixed an operational period of 12 months from the date of release.
The appellant appeals against his convictions on the basis that the convictions were “wrong in law” and unsafe and against the weight of the evidence. The grounds of appeal also assert that the conviction for stealing charged in count 2 is wrong in law by reason of duplicity because count 2 charged two offences of stealing. As to sentence, the appellant appeals against both the individual sentences and total of seven months on the basis that these periods are manifestly excessive. The appellant also contended that requiring service of two months in custody resulted in a manifestly excessive sentence.
Facts
At all relevant times the appellant was the Lord Mayor of the City of Darwin. He received various allowances for the purposes of that office. At a meeting of the Darwin City Council on 12 July 2005, a meeting chaired by the appellant, Council approved the following motions concerning expenditure of Lord Mayoral expenses and donations/sponsorship budgets:
“E.THAT expenditure against the Lord Mayoral Expenses budget item number 120000/300/343 to the value of $10,600.00 be approved on the basis that it will be used by the Lord Mayor for expenses in connection with entertainment and gifts deemed appropriate by the Lord Mayor as being ancillary to, or a function of, his position of Lord Mayor, or for the reimbursement of expenses for tickets, entry fees or other direct expenses incurred by an Alderman attending a function on behalf of the Lord Mayor.
…
F.THAT expenditure against the Lord Mayoral Donations/Sponsorship budget Item number 120000/300/320 to the value of $4,000.00 be approved, on the basis that it will be used by the Lord Mayor for the purposes of dealing with donations/sponsorship requests not falling within the specific guidelines of Councils donations/sponsorship policies.”
On 30 June 2006 the appellant asked his personal assistant to ascertain the unspent balance of his allowances. The personal assistant advised the appellant that the entertainment allowance had approximately $2,600 remaining, but the donations and sponsorships allowance was overspent by $800. The appellant told his assistant that he intended to go to Casuarina and spend the available allowance.
On the same day, 30 June 2006, the appellant travelled to Milner where, using his own credit card, he purchased from an electrical retailer a new refrigerator at a total cost of $949, including delivery. The credit card slip recorded the time of the transaction as 2.08pm.
The appellant then travelled to Casuarina where he spent a further $1,800. He purchased six vouchers from Big W and six from K Mart, each of the value of $100. Using a second personal credit card, the appellant also purchased six GPT gift cards, each of the value of $100. The cards were redeemable at any of the retailers at the Casuarina shopping centre. The receipts recorded the times of the transactions at Casuarina as shortly before and shortly after 3pm. I will refer collectively to the vouchers and gift cards as “the gift cards”.
At the time of purchasing the refrigerator the appellant instructed the retailer to arrange for delivery to the apartment occupied by the appellant and his partner. There was no refrigerator in the apartment.
On 1 July 2006 the refrigerator was delivered to the appellant’s apartment in the presence of the appellant who requested the delivery man to unpack the refrigerator and place it in the fridge cavity. The delivery man placed the refrigerator in the cavity and advised the appellant to leave it sitting for one hour before switching it on to ensure that the gas had settled.
On the day of the purchases the appellant returned to the Council offices and gave the invoices for the refrigerator and gift cards to his personal assistant with a request that she process them for reimbursement. The Magistrate found that at the time of the purchases the appellant intended to claim reimbursement from the Council for the full amount spent in purchasing the refrigerator and gift cards.
The appellant was familiar with the system for claiming reimbursement. As Lord Mayor the appellant was entitled to the use of a Council credit card, but it was his practice to use his own credit card and seek reimbursement.
In accordance with the usual practice, the appellant’s personal assistant filled out the appropriate form seeking reimbursement and submitted it to the Chief Executive Officer (“CEO”) of the Council. The form referred to a “Budget Item No” under which the assistant cross-referenced the claim to the Lord Mayoral expenses budget by inserting the item number “120000/300/343”. The details of the purchases were headed “Reimbursement for purchases” and were itemised as the gift cards and the fridge.
Prompted by the unusual nature of the expenditure from the Lord Mayor’s allowance, the CEO made enquiries which were the subject of detailed evidence. The appellant falsely informed the CEO orally that he had donated the refrigerator to the St Vincent de Paul Society (“the Society”), but a representative of that Society denied any knowledge of the refrigerator. The appellant admitted in evidence that his statement to the CEO that he had donated the refrigerator to the Society was deliberately false.
In order to resolve the question of what had happened to the refrigerator, the CEO suggested that the appellant sign a Statutory Declaration in support of his assertion that he had donated the refrigerator.
As at 23 August 2006 the refrigerator was being used by the appellant in his apartment. That day the appellant signed a document in the form of a Statutory Declaration falsely stating that the refrigerator had been donated to the Society. Two days later on 25 August 2006, the Council paid $2,758 to the appellant by means of electronic funds transfer. The payment was understood by everyone involved, including the appellant, to be reimbursement for the amounts spent by the appellant from his personal funds in purchasing the refrigerator and gift cards.
The payment by electronic transfer was the subject of the charge in count 1 that, by a deception, the appellant obtained property of the Council, namely, a chose in action to the value of $2,758. Although the Magistrate was satisfied that the appellant obtained that amount from the Council by means of deception, his Honour found there was no case to answer because, in his Honour’s opinion, as a matter of law it was not possible to transfer a chose in action by an electronic funds transfer. That finding of law was not the subject of appeal or submission and I express no view about it.
The Magistrate also found that the prosecution had failed to establish a case to answer with respect to count 3 which charged that the appellant wilfully made a false statement in a Statutory Declaration that he had donated the refrigerator to the Society. While the Magistrate was satisfied that the false statement was wilfully made, and that the document containing the statement was in the form of a Statutory Declaration signed by the appellant, because the appellant’s signature had not been properly witnessed as required by the Oaths Act his Honour was of the view that the document did not amount to a Statutory Declaration. As the offence charged that the false statement was made in a “Statutory Declaration”, his Honour found there was no case to answer. That finding of law was not the subject of appeal or submissions and I express no view about it.
The appellant lied to the CEO and Council members on a number of occasions. His lies included maintaining the lie that the refrigerator had been donated to the Society after being advised that the Society had no knowledge of the refrigerator. On one occasion the appellant went to the extent of falsely claiming that he had inadvertently been referring to the wrong refrigerator.
It is unnecessary to canvass the details of all the lies. The Magistrate found that the various false oral and written statements made by the appellant were deliberate lies. The findings of the Magistrate were open to his Honour, as were his Honour’s findings that a number of the lies were told by reason of a consciousness of guilt. His Honour correctly approached this issue and these findings were open to him.
On the day of reimbursement, 25 August 2006, the CEO advised the appellant by email communication that the reimbursement had been processed and that the funds should be in his account that day or the next. In addition, the CEO wrote:
“Are you able to provide Wendy [the appellant’s personal assistant] with details of the 18 vouchers so she can keep a record of them as we discussed?”
The appellant claimed in evidence that he could not recall whether he read the email communication. Not surprisingly, the Magistrate was unimpressed by that evidence.
On 25 October 2006 the appellant attended a special meeting of the Corporate and Economic Development Committee of the Council (“the Committee”). The Committee regularly met prior to the meeting of the full Council. The role of the Committee is discussed later in these reasons, but speaking generally the function of the Committee was to oversee expenditure by the Council. A schedule of all Council payments was provided to the Committee which could either question the payments or recommend that they be approved.
The appellant lied to members of the Committee about donating the refrigerator to the Society. His lies included stating that he would obtain the name of the family to whom the refrigerator was ultimately delivered. The appellant also falsely said he had hired a trailer to take the refrigerator to the family and indicated he would check on the hire of the trailer to ascertain when he made the delivery.
A member of the Committee bluntly told the appellant to complete the donation of the refrigerator and put an end to the matter. It was three days later that the appellant took the refrigerator to a different charitable organisation.
Notwithstanding that he had used many of the gift cards for purchases of personal items for himself and his partner, the details of which are set out in para [28] of these reasons, at the committee meeting the appellant said he did not keep good records of the gift cards and had no idea of their whereabouts. These statements did not sit well with the appellant’s evidence that he made notes of each donation and keyed the information into his computer. Further, the appellant’s statements at the meeting tended to contradict the appellant’s claim in a later document dated 28 November 2006 that he donated a number of gift cards to different organisations over the period 18 August to 7 October 2006. None of those alleged donations were mentioned at the meeting on 25 October 2006.
On 28 October 2006, three days after the committee meeting, the appellant telephoned the CEO and advised that the refrigerator was at Nightcliff at the premises of a charitable organisation to which it had been donated. The Magistrate found that the appellant took the refrigerator to Nightcliff on that day.
Having been advised of the whereabouts of the refrigerator, the CEO attended at the premises and observed the refrigerator. He noted dampness in the freezer compartment indicating that the refrigerator had been used and gave evidence to that effect. The appellant subsequently said in evidence that he used the refrigerator after it had been delivered to his apartment.
As to the gift cards, the evidence established that many were used for the benefit of the appellant and his partner personally, including purchase of alcohol while the appellant was in Queensland, and purchases of personal items such as clothing subsequently found in the appellant’s apartment. The Magistrate summarised the evidence with respect to the use of the vouchers as follows:
“• Six distinctly numbered GPT vouchers were purchased by the defendant on his Mastercard on 30 June 2006. Each had a face value of $100.00. Those vouchers were redeemed at Casuarina Shopping Centre as follows: -
Card 1: $25.00 at Supre on 23 July 2006, $11.20 at Jamaica Blue on 23 July 2006 and $49.99 at Roger David on 3 September 2006.
Card 2: $100.00 at Priceline on 15 July 2006.
Card 3: $38.45 at Price Attack, $14.64 at Priceline and $9.95 at Sportsgirl, all on 15 July 2006.
Card 4: $29.95 at Williams the Shoeman and $31.96 at Kleins, both on 29 July 2006.
Card 5: $99.95 at Williams the Shoeman on 23 July 2006.
Card 6: This card has not been redeemed at all as at 23 November 2006.
·The purchase using the GPT voucher at Roger David on 3 September 2006 in the sum of $49.99 related to a shirt of the same colour, band and size as one seized at the defendant’s apartment on 22 November 2006.
·Goods matching those purchased using one of the GPT vouchers at Priceline on 15 July 2006 were seen and/or seized at the defendant’s apartment on 22 November 2006.
·The purchase using the GPT voucher at Supre on 23 July 2006 in the sum of $25.00 related to a pair of ladies pants matching those seized at the defendant’s apartment on 22 November 2006.
·Goods matching those purchased using one of the GPT vouchers at Price Attack on 15 July 2006 were seen and/or seized at the defendant’s apartment on 22 November 2006.
·The purchase using the GPT voucher at Williams the Shoeman on 23 July 2006 in the sum of $99.95 related to a pair of shoes of the type and with the same barcode as the shoebox seized at the defendant’s office at Darwin City Council on 22 November 2006.
·The purchase using the GPT voucher at Sportsgirl on 15 July 2006 in the sum of $9.95 related to a headband which matched a headband seized at the defendant’s apartment on 22 November 2006.
·The defendant’s Diners card was used to purchase six Coles gift vouchers on 30 June 2006. Each had a face value of $100.00. Those vouchers were redeemed as follows:-
Card 1: Redeemed for its full face value at Target Palmerston on 20 August 2006.
Card 2: Redeemed to the extent of $44.49 at Liquorland Darwin.
Card 3: Redeemed to the extent of $11.59 at Bilo Casuarina on 5 September 2006 and further as to $27.68 at Coles Darwin on 7 September 2006 and further as to $53.64 at Coles Darwin on 8 September 2006.
Card 4: Redeemed to the extent of $24.04 at Bilo Casuarina on 1 August 2006 and further as to $55.00 at Liquorland Wynnum Queensland on 4 August 2006 and further as to $20.89 at Liquorland Wynnum Queensland on 12 September 2006.
Card 5: Redeemed to the value of $39.90 at Target Palmerston on 25 August 2006.
Card 6: Redeemed at Bilo Casuarina to the extent of $34.00 on 17 August 2006, and further as to $39.80 on 23 August 2006 and further as to $26.20 on 30 August 2006.
·The purchases using the voucher at Target Palmerston on 20 August 2006 related to items of female underwear and a pair of ladies black Anthea shoes matching those seen and/or seized at the defendant’s apartment on 22 November 2006.
·The defendant’s Diners card was used to purchase six Big W gift vouchers on 30 June 2006. Each had a face value of $100.00. Those vouchers were redeemed as follows:-
On 14 July 2006 one of the Big W vouchers was used to purchase a universal remote control from Dick Smith at Casuarina.
On 23 July 2006 one of the Big W vouchers was used to purchase Frasier and Mash DVDs from Big W.
On 22 August 2006 two more Big W vouchers were redeemed and used to purchase a punching bag, some hand wraps and a Star Wars Darth Vader mask.
·On 2 August 2006 the defendant travelled to Brisbane for Council business. During the course of that trip, one of the Coles vouchers was used at Liquorland Wynnum on 4 August 2006. It was again used at the same store on 12 September 2006.
·A search of the defendant’s apartment on 22 November 2006 resulted in the seizure of one GPT voucher and covers for two other GPT vouchers in addition to the items hereinbefore referred to.
·The shoe box for the men’s black shoes purchased from Williams was seized by police during the search of the defendant’s office at Darwin City Council on 22 November 2006.
·Another search of the defendant’s apartment effected on 20 December 2006 resulted in the seizure of the Frasier and Mash DVDs, the punching bag and the Anthea ladies shoes.
·The defendant attended functions of the various organisations named below and on the specified dates. The defendant was invited to attend various functions but was not seen by persons involved in the management of those organisations to give away any vouchers. The organisations were Seniors Bingo on 18 August 2006, Seniors Ballroom Dancing on 20 August 2006, Seniors Quiz at Karama Library on 25 August 2006, Darwin Fiji Association on 7 October 2006, Indian Diwlai Association on 4 November 2006, and Darwin Senior Citizens in August 2006.
·The defendant gave out four $50.00 gift vouchers to the Darwin Senior Citizens on 4 December 2006.
…
·None of the $100.00 gift vouchers had been converted to $50.00 gift vouchers.”
During the period 30 June to 25 August 2006 the appellant used a significant number of the gift cards, either wholly or in part, to make purchases to a total value of several hundred dollars. After reimbursement on 25 August 2006, the appellant continued to use gift cards for the purchase of personal items and did not respond to the email enquiry from the CEO dated 25 August 2006. Given the personal use of the gift cards prior to the meeting of the Committee on 25 October 2006, plainly the appellant was not truthful with the Committee. At no time did the appellant admit that he had used any of the gift cards to make purchases of a personal nature.
On 22 November 2006 police executed a search warrant at the appellant’s apartment. Six days later on 28 November 2006 the appellant produced to his personal assistant a document headed “Acquittal of Gift Cards” (“the acquittal document”) which he gave to his personal assistant with a statement that Mr McGill was looking for the document or it needed to be passed on to Mr McGill.
The acquittal document was dated 28 November 2006 and signed by the appellant. It was the basis of the charge in count 4 that, with intent to deceive, the appellant produced a document for an accounting purpose, namely, the acquittal of the gift cards, that was false in a material particular. The document was in the following terms:
“Acquittal of Gift Cards
Since the purchase of the original $100 Gift Cards I have chosen to give away the items as $50 Gift Cards.
To date the following have been given away –
18 August 6 x $50 Seniors Quiz morning at Casuarina Library
20 August 4 x $50 Seniors Month Ballroom Dancing, Coconut Grove
25 August 5 x $50 Seniors Quiz at Karama Library
** August 3 x $50 Seniors Morning Tea, Spillett House
7 October 2 x $50 Diwlai at Sanderson High School4 November 2 x $50 Fiji Independence Day, Aviation Institute
Peter Adamson
28/11/’06
** Will confirm date of Morning Tea”
The Magistrate specifically rejected the evidence of the appellant as to the making of the donations of gift cards set out in the acquittal document. His Honour found that the document was false in its entirety and that the appellant possessed an intention to deceive when he provided the document to the CEO. His Honour was satisfied that the document was provided for an accounting purpose, namely, the verification of expenditure of the funds of the Council.
The appellant gave evidence that at the time of the purchases he intended to donate the refrigerator if he was subsequently reimbursed by Council. He said the gift cards were kept at his home and office and, while admitting that he spent some of the cards, said he believed it was appropriate and within the guidelines for the expenditure of the budget. The appellant said he shared the gift cards with his partner. He claimed that he intended to account for the cards over the period of the ensuing financial year. Not surprisingly, the Magistrate rejected these explanations. The Crown evidence established a strong case that at the times the appellant purchased the refrigerator and the gift cards, notwithstanding that he was intending that the Council pay for those goods by reimbursing him, the appellant intended to use them for his own purposes.
It is also not surprising that the Magistrate found that the appellant deliberately embellished his evidence and was untruthful in a number of respects, the details of which it is unnecessary to canvass. In relation to the charge of stealing in count 2, his Honour rejected all “innocent explanations” advanced by the appellant and found “beyond reasonable doubt that the [appellant] did not intend to donate the refrigerator or the vouchers and instead [used] both as if they were his own property”. His Honour found that the elements of the offence of stealing had been made out and that the prosecution evidence had negatived, beyond reasonable doubt, the defences of authorisation and claim of right.
The findings as to the appellant’s evidence, lies, explanations and intention to which I have referred were open to his Honour. The Magistrate explained in detail the reasons why he reached his views and I am unable to discern any error in his Honour’s approach to the evidence and his assessment of it. Indeed, it would have been very surprising if his Honour had reached any other conclusions. Having read the transcript, I am left in no doubt that his Honour’s findings were correct. As to matters in contention, the appellant’s evidence was singularly unimpressive and, at times, demonstrably evasive and false.
Count 2 – Stealing - Ownership
The appellant attacked the conviction for stealing on the basis that the Magistrate was in error in finding that the appellant purchased the refrigerator and gift cards as agent of the Council and, therefore, as a matter of law those goods became the property of the Council at the time of the purchases on 30 June 2006. Counsel contended that all goods purchased on 30 June 2006 remained the property of the appellant throughout the entire period.
The trial was conducted on the basis that property in the refrigerator and gift cards passed to the Council at the time of reimbursement on 25 August 2006. In closing submissions both counsel addressed the Magistrate on the assumption that property passed on 25 August 2006, but at the conclusion of submissions his Honour raised, for the first time, the issue of agency. Counsel for the appellant did not adopt a final position, but counsel for the prosecution reminded his Honour that the charge alleged theft between 30 June and 28 October 2006 and submitted that the precise date on which property passed to the Council was not of significance. The prosecution argued that the position became “simply unarguable” after 25 August 2006 when reimbursement occurred.
The view of the Magistrate as to property vesting in the Council on 30 June 2006 was based upon his Honour’s finding that from the outset the appellant intended to claim reimbursement and was purporting to purchase the refrigerator and gift cards on behalf of the Council. Having made that finding, his Honour noted that the precise date on which property passed to the Council was not critical to the charge of stealing:
“It is a question of law and in my view the refrigerator and the vouchers were the Council’s property on 30 June 2006. That does not necessarily materially alter things given the relevance of that to a charge of stealing based not on permanent deprivation but on the basis of dealing as if the stolen property was his own. What is relevant here is the intention of the defendant as to how he was to deal with the property.”
On appeal the appellant contended that because the appellant used his own credit cards to make the purchases, it was the appellant and not the Council who became the legal owner of the goods. Further, it was put that as the appellant “was the legal owner of the property for the duration of the charge as such he was entitled to do with it what he wanted to” and that the appellant “could not be convicted of stealing property that he as the legal owner of”.
As to the refrigerator in particular, counsel argued that as the Council believed at the time of reimbursement that the appellant had donated the refrigerator and was no longer in possession of it, the Council did not intend to purchase the refrigerator and payment by way of reimbursement did not result in property passing to the Council. While effectively conceding in oral submissions that the Magistrate erred in his view as to the effect of agency, the respondent submitted that ownership passed to the Council at the moment of reimbursement and, therefore, theft occurred at that time.
The broad assertions of the parties were not supported by an examination of the relevant principles or by reference to authorities. I adjourned the hearing of the appeal to enable the parties to provide additional written submissions, including submissions as to whether a trust with respect to the refrigerator and gift cards existed in favour of the Council thereby providing the Council with a sufficient proprietary interest for the purposes of the law of stealing. Supplementary written submissions were received on 11 and 22 January 2008 and 13 February 2008. Unfortunately, however, those submissions failed to address the fundamental principles or authorities concerning fiduciary relationships and trusts as they might apply to the circumstances under consideration.
Stealing is defined in s 209 of the Criminal Code in the following terms:
“‘Steals’ means unlawfully appropriates property of another with the intention of depriving that person of it … .”
“Property” encompasses “everything, animate or inanimate, capable of being the subject of ownership …;”: s 1 Criminal Code.
“Appropriates” for the purposes of stealing is defined in s 209 as follows:
“‘Appropriates’ means assumes the rights of the owner of the property and includes, where the person has come by the property without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.”
“Property of another” is not defined, but “owner” is defined in s 1:
"owner" includes any part owner and any person having possession or control of, or any special property in, the property in question; it also, as does the term "person" and other like terms when used with reference to property, includes Her Majesty and any corporation, local authority and public body constituted by or under any statute and any other association of persons capable of owning property;”
The appellant emphasised the distinction between the expression “property of another” used in the definition of “steals” and the use of the word “owner” in other parts of s 209. Counsel contended that this wording was indicative of a legislative intention to distinguish between “the owner” and “the property of another” and that, as a consequence, the expression “of another” should not be construed as meaning “owned by another”. These propositions led to the submission that as the appellant owned the refrigerator and gift cards he could not be convicted of stealing those items because he did not unlawfully appropriate the “property of another”.
In my opinion the appellant’s contention should be rejected. The definition of “steals” is based upon the unlawful appropriation of the “property of another”. “Appropriates” is defined in s 209 as meaning “assumes the rights of the owner of the property” (my emphasis). The definition of “steals” requires the unlawful appropriation of the property of another “with the intention of depriving that person of it …”, and the definition of “depriving” speaks of “the person to whom it belongs” being deprived of the property. Section 209(3) concerns property that is subject to a trust and refers to “the persons to whom it [the property] belongs”.
The ordinary and natural meaning of the expression “property of another” encompasses property owned by or belonging to another person. Beyond that, it is necessary to explore except to note the effect of s 209(3) that where property is subject to a trust, a person “to whom it belongs” includes “any person having a right to enforce the trust”.
The question whether the Council possessed a sufficient proprietary interest in the refrigerator and gift cards to support a charge of stealing and, if so, on what date the Council became possessed of that proprietary interest, must be determined on the basis of the following essential facts:
· At the time the appellant purchased the refrigerator and gift cards, although the appellant paid for the purchases with his personal credit cards, the appellant intended that the Council would pay for the purchases through reimbursement of the expenditure to the appellant.
· On the same day as the purchases were made, and immediately upon his return to the Council offices, the appellant claimed reimbursement for the total amount incurred in purchasing the refrigerator and gift cards.
· Prior to the purchases, the appellant had been advised that his donations and sponsorships allowance was overspent, but that his entertainment allowance had approximately $2,600 remaining.
· At the time of the purchases, in substance the appellant intended to spend funds from the entertainment allowance.
· The entertainment allowance was comprised of Council funds.
· The appellant was authorised to spend Council funds in the form of the entertainment allowance only for “entertainment and gifts deemed appropriate” by the appellant “as being ancillary to, or a function of, his position of Lord Mayor …”.
· The expenditure in purchasing the refrigerator and gift cards was not an authorised expenditure because, at the time of the purchases, the appellant intended to make personal use of the items purchased and did not intend to donate them. In other words, the purchases were not “ancillary to, or a function of,” the position of the appellant as Lord Mayor.
· In substance, by claiming reimbursement the appellant falsely asserted to the Council that he was entitled to reimbursement because the goods purchased would be used for proper Council purposes, namely, purposes ancillary to or a function of the position of Lord Mayor.
· After claiming reimbursement, and prior to being reimbursed, the appellant falsely advised the Council that he had donated the refrigerator to a charity organisation.
· After claiming reimbursement, and prior to being reimbursed, the appellant conveyed to the Council that he had made or intended to make proper use of the gift cards by donating them to worthy causes or individuals.
· Between claiming and receiving reimbursement, the appellant maintained his false assertion to the Council that he was entitled to reimbursement because the property had been or would be used for proper Council purposes.
· At the time of reimbursement on 25 August 2006:
(i)Unbeknown to the Council, the appellant was in possession of the refrigerator and did not intend to donate it.
(ii)The appellant had used 11 gift cards for personal purposes and did not intend to donate the remaining seven gift cards.
Based on these facts, the Magistrate found that the appellant purchased the refrigerator and gift cards as agent for the Council and, therefore, the Council became the legal owner of those items at the times of purchases. Although in oral submissions counsel for the respondent conceded that the Magistrate was in error in this regard, in supplementary written submissions the respondent advanced the proposition that it is “arguable that the appellant’s full expectation of being reimbursed by the Council at the time of purchase was sufficient for the property to pass at that time …”. The appellant’s contrary submission was simply that, irrespective of the appellant’s intention, as the appellant purchased the items using his own credit cards those items became, and remained throughout, the property of the appellant.
Neither party examined adequately the relevant principles or authorities governing the question as to whether property in the refrigerator and gift cards passed to the Council at the time of purchase. While the respondent contended that it is “arguable” that property passed at that time, effectively the respondent rested upon the proposition that property passed to the Council at the time of reimbursement on 25 August 2006. The respondent’s supplementary written submission summarised the position in the following terms:
“Because of the conditions that governed the application of the property, the Council acquired property rights, probably amounting to full legal ownership, over the refrigerator and vouchers purchased by the appellant. The operation of the civil law of property is such that property in the goods passed at the time the Council effectively made payment for them by way of reimbursement. Reynolds FMB, Bowstead and Reynolds on Agency, (18 ed, London: Sweet & Maxwell, 2006), at 326 provides:
‘Where an agent, by contracting personally, renders himself solely liable for the price of goods bought on behalf of his principal, the property in the goods, as between the principal and the agent, vests in the agent, and does not pass to the principal until he pays for the goods, or the agent intends that it shall pass; …’”
As to ownership following reimbursement, the appellant contended that as the Council believed the refrigerator had been donated and was unaware that the appellant remained in possession at the time of reimbursement on 25 August 2006, the Council did not intend to “purchase” the refrigerator and, therefore, property in the refrigerator did not pass to the Council at the time of reimbursement. In other words, through the appellant’s deception the Council was deprived of knowledge of the true whereabouts of the refrigerator and, therefore, the Council did not obtain a sufficient proprietary interest in the refrigerator for the purposes of the law of theft.
The Council is a Body Corporate: s 7 Local Government Act 2005 (“the LGA”). Section 34 provides that a Council shall consist of a Mayor and not less than four aldermen elected or appointed in accordance with the LGA. At the time of making the purchases, the appellant intended that Council funds be used to meet the cost of the purchases and, but for his fraudulent intention, the appellant would have been acting within the ambit of his authority as Lord Mayor.
On one view, the appellant intended to act as the agent of the Council in making the purchases. On another view, notwithstanding that in his personal capacity the appellant was intending to defraud the Council, it might be said that in making the purchases the appellant was “acting as the company”: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at 170. If the appellant acted as the Council, ownership passed to the Council immediately upon payment of the purchase price. In that event the appellant never held any proprietary interest in the refrigerator or gift cards and if the Council refused reimbursement his remedy would lie in civil proceedings for recovery of a debt.
The question whether the appellant was acting as the Council in making the purchases was not the subject of submissions by counsel. I have not, therefore, had the benefit of discussion of the relevant principles and authorities. In addition, as I have said, the respondent all but conceded that the Magistrate erred in finding that property in the goods passed to the Council immediately upon purchase because the appellant was acting as the agent of the Council. If the passage cited from Bowstead and Reynolds to which I have referred accurately states the relevant principle, initially property passed to the appellant and not the Council. This proposition can be tested by considering whether the Council could have claimed any proprietary interest in the goods if, having purchased the goods as agent of the Council using his own credit cards, the appellant changed his mind and did not seek reimbursement. In those circumstances the answer to the question whether the Council could claim any proprietary interest in the goods appears to be in the negative.
I am not persuaded that the Magistrate was correct in his conclusion that property passed to the Council at the time of purchase by reason of the appellant’s agency. As I have not had the benefit of submissions in relation to the application of the principle illustrated by Tesco Supermarkets, and as I am of the view that a sufficient proprietary interest passed to the Council on 30 June 2006 when the claim for reimbursement was made, it is unnecessary for me to endeavour to determine whether this principle applies to the circumstances under consideration.
By virtue of his statutory position, the appellant occupied a position of trust and seniority within the Council. The Lord Mayor is the head of the elected Council and, in many respects, is the public face of the Council. Specific powers and discretions had been conferred upon the appellant as Lord Mayor by the Council to spend Council funds in accordance with the resolutions of the Council concerning entertainment and sponsorship allowances as set out in para [4] of these reasons. The appellant was in a position to exercise powers and discretions affecting the interests of the Council and, bearing in mind the nature of the position of trust occupied by the appellant, it is readily obvious that the Council was vulnerable to abuse by the appellant of that position of trust. In my opinion, a fiduciary relationship existed between the appellant and the Council which contained the “critical feature” of which Mason J spoke in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96 – 97:
“The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v Boardman [[1967] 2 AC 46, at p 127]), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal” (my emphasis).
From the outset of his activities with respect to the purchase and use of the refrigerator and gift cards, the appellant purported to be exercising his powers as Lord Mayor. He told his personal assistant that he intended to spend the available allowance. On his return to the Council offices on the day of the purchases, the appellant represented to the Council that he had spent his own funds in purchasing the refrigerator and gift cards for proper Council purposes, namely, for use in accordance with the terms of his Lord Mayoral allowance. In other words, the appellant represented to the Council that the goods were property to be applied for proper Council purposes and, therefore, it was appropriate for the Council to reimburse him for the purchases of those goods.
In my opinion, this combination of facts, coupled with the fiduciary relationship, resulted in a trust over the goods in favour of the Council. The appellant held the refrigerator and gift cards on trust for the Council to apply those goods for the proper purposes of the Council, namely, use in accordance with the Lord Mayoral allowance. If reimbursement was refused, the trust would have been brought to an end, but as matters stood on 30 June 2006 following the application for reimbursement the appellant held the goods on trust.
In these circumstances, s 209(3) applied:
“(3) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust and an intention to defeat the trust shall be regarded as an intention to deprive of the property any person having that right.”
As the refrigerator and gift cards were the subject of a trust in favour of the Council and, therefore, the Council possessed the right to enforce the trust, for the purposes of the law of stealing the person to whom the property belonged included the Council: s 209(3). That is, at the time of application for reimbursement on 30 June 2006, the existence of the trust and the operation of s 209(3) had the effect of conferring upon the Council a relevant proprietary interest in the refrigerator and gift cards.
The appellant had come into possession of the goods without stealing them, but on 30 June 2006 he assumed the rights of the owner, namely, the Council by keeping the goods and dealing with them as owner. The appellant’s act of maintaining possession, coupled with his intention to use the goods for personal purposes, amounted to a single act of appropriation for the purposes of s 209 and s 210 of the Criminal Code.
On the findings of the Magistrate, the appellant unlawfully appropriated the goods with the intention of “depriving” the Council of the goods within the meaning of that term as defined in s 209(1). The appellant intended to permanently deprive the Council of the goods by treating the goods “as his own to dispose of” regardless of the rights of the Council. Stealing on 30 June 2006 was proven.
In addition, the evidence and findings of the Magistrate leave no room for doubt that the appellant well knew that he was under a responsibility to deal with the goods for proper Council purposes, namely, for purposes deemed appropriate by the appellant “as being ancillary to, or a function of, his position of Lord Mayor …”. Well knowing that it was his duty to use the goods for those proper purposes, it is beyond doubt that the appellant also knew that using the goods for his or his partner’s personal purposes defeated the proper Council purposes for which he held the goods. In other words, the appellant possessed an intention to defeat the trust and, by virtue of the operation of s 209(3), such an intention is regarded as an intention to deprive the Council of the property.
For these reasons, in my opinion the appellant committed the crime of stealing on 30 June 2006. Although the basis upon which the Magistrate found that stealing occurred on that date was incorrect, no miscarriage of justice has occurred and the appeal against conviction based on ownership of the goods fails.
Bearing in mind the absence of submissions directed to the fundamental principles to which I have referred in connection with the establishment of a fiduciary relationship and a trust, it is appropriate that I consider the position should I be wrong in my conclusion that stealing occurred on 30 June 2006. This involves questions as to whether stealing on the day of reimbursement, 25 August 2006, was proven and whether, if stealing occurred on that later date, that fact has any effect upon the conviction or sentence.
As to the appellant’s proposition that property in the refrigerator did not pass to the Council upon reimbursement on 25 August 2006 because, at the time of reimbursement, the Council believed that the refrigerator had previously been donated to the Society, underlying this proposition is reliance upon the appellant’s deception. The belief of the Council that the refrigerator had been donated was induced by the appellant’s lies to the CEO, including the written document in the form of a Statutory Declaration dated 23 August 2006.
Ordinarily, pursuant to a contract for sale of goods property passes to the buyer at the time the parties to the contract intend it to pass: s 22 Sale of Goods Act 1980. By reason of the appellant’s deception, it cannot be said that the parties possessed a common intention in this regard. However, the appellant was well aware that he had deliberately misled the Council into believing that the goods had been or would be applied to proper Council purposes. At the time of reimbursement, to the extent that the goods or some of them were still in the possession of the appellant, it was plainly the intention of the Council that those remaining goods would become Council property to be applied by the appellant for proper Council purposes.
Although this question has not been addressed by either counsel, in my opinion the appellant is estopped from relying upon the mistaken belief of the Council because that belief was induced by the appellant’s deception. If the Council had been aware that the refrigerator remained in the possession of the appellant, an intention on the part of the Council to purchase property in the refrigerator would have existed. The absence of that intention was caused by the appellant’s deception. Notwithstanding the mistaken belief, if property did not pass to the Council on 30 June 2006, in my view property in all the remaining goods held by the appellant on 25 August 2006 would have passed to the Council upon reimbursement.
There is a further basis upon which it might be argued that property passed to the Council on 25 August 2006 notwithstanding that the appellant had misled members of the Council into believing that the refrigerator had been donated. This concerns the appellant’s position as Lord Mayor and his capacity to be the “will and mind” of the Council. It might be argued with some force that the appellant’s knowledge of the whereabouts of the refrigerator was corporate knowledge, that is, amounted to knowledge of the Council. If this view is correct, the foundation of the appellant’s argument crumbles. However, this question was not addressed by either counsel and it is unnecessary to finally determine it.
There is an additional basis upon which the Council would gain a relevant proprietary interest upon reimbursement on 25 August 2006. On the assumption that I am wrong in my view that from the moment of the application for reimbursement the goods were the subject of a trust in favour of the Council, in my opinion a trust would come into existence upon reimbursement on 25 August 2006. For the reasons I have discussed, as at 25 August 2006 a fiduciary relationship existed and, in addition to the circumstances previously identified, the further fact of reimbursement occurred on 25 August 2006. Any goods remaining in the possession of the appellant in respect of which reimbursement was made became the subject of a trust in favour of the Council. For this purpose, the absence of knowledge by the Council brought about by the deception perpetrated by the appellant has no effect upon the existence of the trust and its application to the use of the refrigerator.
For the reasons previously discussed in para’s [60] – [64], once the existence of the trust is established, on the facts found by the Magistrate stealing on 25 August 2006 was proven.
What then is the effect of a finding that stealing occurred on 25 August 2006 rather than 30 June 2006? The information charged stealing between 30 June and 28 October 2006. Appropriation occurred in that period. The precise date on which the theft occurred is not critical to the charge and the conviction. On the assumption that I am wrong in my conclusion that stealing on 30 June 2006 was proven, and instead the evidence established stealing on 25 August 2006, the error by the Magistrate was of no significance to his Honour’s finding that the act of stealing occurred. However, on this basis it would affect the validity of the finding that all the gift cards were stolen in that act of stealing. Only the seven unused gift cards as at 25 August 2006 would have been stolen. To that extent the conviction for stealing all of the gift cards could not stand. Otherwise, the error by the Magistrate would not have resulted in a miscarriage of justice: Justices Act s 177(2)(f): Weiss v The Queen (2005) 224 CLR 300.
Section 321 of the Criminal Code empowered the Magistrate to convict the appellant of stealing some, but not all, of the property charged in count 2. On the scenario that stealing occurred on 25 August 2006, the Magistrate should have convicted the appellant of stealing seven gift cards. On appeal this Court possesses the power to substitute any conviction which ought to have been made by the Magistrate: Justices Act s 177(2)(c). In such circumstances I would not have hesitated to amend the conviction accordingly to record theft of seven gift cards of a total value of $700.00.
Count 2 - Duplicity
In substance the appellant complained that count 2 charged two offences of stealing and was, therefore, bad for duplicity. The written submissions contained the following proposition by way of summary of the appellant’s contention in this regard:
“12.The evidence led by the prosecution in relation to the refrigerator as compared to the gift vouchers was completely separate and distinct. In relation to the obtaining and disposition of those items it was completely separate and distinct.”
On the basis that property passed to the Council either on 30 June 2006 at the time the appellant claimed reimbursement, or on 25 August 2006 when reimbursement occurred, a fundamental flaw is exposed in the proposition that “disposition” of those items occurred on separate occasions. On either date, at the moment property passed to the Council the appellant was in possession of a number of items of Council property and he assumed the rights of the owner of all items of Council property through a single intention to assume those rights. In a practical and legal sense, only a single appropriation of all items of Council property occurred. That is, a single act of stealing occurred in which a number of items of Council property were, in the one transaction, unlawfully appropriated by the appellant in circumstances amounting to stealing. No question of duplicity was involved.
If, contrary to my view, strictly speaking there were two or more appropriations, for the following reasons the rule against duplicity has not been infringed. In addition, regardless of the rule against duplicity, the form of the Indictment was authorised by s 310 of the Criminal Code.
The common law rule against duplicity prohibits the charging of two or more separate offences in a single count. It has often been stated that duplicity is a matter of form and not evidence, but evidence may reveal latent duplicity in a count which is not overtly duplicitous. The origins of the rule were discussed by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 104 – 106 and it is unnecessary for me to embark upon an examination of that history.
In substance, ss 303 and 305 of the Criminal Code provide a legislative enactment of the common law rule against duplicity for the purposes of the criminal law of the Northern Territory. However, the difficulties occasioned by the rule in cases of assault and theft are ameliorated by s 310 of the Code:
“310 Circumstances where more than one offence may be charged as one offence
(1) In an indictment against a person for an assault the accused person may be charged and proceeded against notwithstanding that such assault is alleged to be constituted by a number of assaults provided they were committed on the same person in the prosecution of a single purpose or at about the same time.
(2) In an indictment against a person for stealing property where the property was stolen over a period of time the accused person may be charged and proceeded against for stealing the property over the period of time, notwithstanding that different acts of stealing took place at different times and it is not possible to identify in all instances each particular act of stealing.”
In R v Poulier [2007] 19 NTLR 91, Mildren J, with whose judgment I agreed, identified two lines of authority in the United Kingdom where judicial approval had been given to “charging one appropriation of property in one count where the evidence led at trial disclosed that the property had been, or might have been, appropriated on two or more occasions”:
“[9]… The first line of cases dealt with the “one continuous transaction” rule: see R v Shepherd (1868) 11 Cox 119, a case involving the cutting of trees at such times as to form one continuous taking; R v Firth (1869) 11 Cox 234, a case involving the taking of gas over a lengthy period of time; R v Bleasdale (1848) 2 Car & K 765; 175 ER 321, a case involving the stealing of £10,000 worth of coal belonging to forty different proprietors over a period of four years. In these cases it was held that s 6 of the Larceny Act 1861 did not apply, because there was one continuous transaction. The rule was approved by the House of Lords in DPP v Merriman [1973] AC 584 per Lord Morris at 593; per Lord Diplock at 607, in general terms not restricted to cases of larceny and has since been followed in Australia: R v Hamzy (1994) 74 A Crim R 314; R v Moussad (1999) 152 FLR 373.
[10]The second line of authority is known as the “general deficiency” cases. Where there was a charge of embezzlement or fraudulent conversion prior to the Theft Act 1968 (UK), the leading case of The Queen v Balls (1871) LR 1 CCR 328 established that notwithstanding s 71 of the Larceny Act 1861, where a person received small sums which he had to account for on a particular day, he could be charged with embezzling the total amount not accounted for, even if the individual sums embezzled could have been charged and proved. In R v Lawson (1952) 36 Cr App R 30, Linskey J held that it is proper to allege a general deficiency if one can prove that there was a fraudulent conversion of either the whole or part of the sum embezzled at one time. Thus, where a solicitor embezzled money from her trust account in a manner such that the individual sums embezzled could not be proved, it was open to allege and prove the conversion of a total amount on a date between certain dates. R v Lawson was expressly approved by the Court of Criminal Appeal in R v Tomlin (1954) 38 Cr App R 82.”
Against the background of those lines of authority, Mildren J pointed out that the provisions of s 6 of the Larceny Act 1861 were enacted by s 137 of the Criminal Law Consolidation Act (SA) and s 194 of that Act authorised a charge of general deficiency in cases of larceny or embezzlement by a clerk or a servant. Section 195 of that Act permitted any number of counts of embezzlement in the one Information. These South Australian provisions were in force in the Northern Territory until 1984 when the Criminal Code commenced operation. Mildren J then observed that it is against this background that the purpose of s 310(2) of the Code “becomes clear”:
“[12]… Section 310(2) enabled the prosecutor to allege a single count of stealing the “property” even though the “property” was stolen over a period of time. “Property” is defined by the Code, s 1, to mean “every thing, animate or inanimate, capable of being the subject of ownership including: (a) things in action and other intangible property.” Clearly, the definition of “property” is very wide and by definition “property” could include a number of items. Further, it includes money whether it is in the form of coins, banknotes or things in action such as a promissory note or cheques and other intangible property. The offence of stealing can therefore be expressed in a rolled-up form as a single offence because s 310(2) enables the prosecutor to plead a stealing in this rolled-up form whether the stealing was one continuous transaction or not and, further, it enables a charge of a general deficiency in a case which was formerly charged as embezzlement without having to prove that the defendant was required to account for the money on a particular date. The evident purpose of s 310(2) is to enable a count which, under the previous law, would have been objectionable because of latent ambiguity, to be pleaded as a single charge of stealing.”
The appellant submitted that s 310(2) has no application because its operation is limited to circumstances involving general deficiencies. There is nothing in the wording of s 310(2) which would justify such a restrictive operation. Quite the contrary. The definition of “property” for the purposes of s 310(2) is not limited to money.
The history of s 310(2) also supports the view that s 310(2) is not restricted to circumstances involving general deficiencies. Prior to 1989, s 310 contained separate provisions dealing with assault, stealing, stealing by a trustee and stealing animals. Section 310(2) and (3) authorised charges of stealing or stealing by a trustee by way of “general deficiency” notwithstanding that the general deficiency was comprised of a number of specific thefts of individual amounts. Section 310(4) authorised the charging in a single count of stealing animals notwithstanding that the animals were stolen at different times, but there was no provision that enabled the charging in a single count of thefts of other types of property.
The situation changed in 1989 when s 310 was amended to omit the provisions dealing with stealing by way of general deficiency and stealing animals. Those provisions were replaced by the current subs (2) of s 310 which embraces every form of “property” as defined.
The ordinary and natural meaning of the words in s 310(2) is unambiguous and not in doubt. For the reasons I have given, and for the reasons given by Mildren J in Poulier, the appellant’s argument cannot be sustained. Even if the appellant’s conduct involved two or more separate offences of stealing, the charging of those offences in the one count was authorised by s 310(2) of the Criminal Code.
Finally, even if, contrary to my view, two or more separate offences occurred and s 310(2) has no application, in my opinion the rule against duplicity was not infringed. Although on this view individual thefts occurred, they were part of a single criminal enterprise carried out in “one continuous transaction”.
The purchases of the refrigerator and vouchers occurred at different times, but those acts were closely connected in time and circumstances. The various acts were accompanied by a single intention on the part of the appellant to use all the property for his own purposes. On the Crown case this was a single exercise by the appellant to fraudulently use Council funds to purchase items which he intended to use for his own benefit. In substance there was a single appropriation for his own personal use. The entire Crown case was conducted on this basis and there was never any suggestion in the evidence or the conduct of the Crown case which permitted of the possibility that the appellant possessed different intentions with respect to the refrigerator and vouchers. Experienced senior counsel for the appellant did not raise any objection to this course and there was nothing unfair or ambiguous about the allegations being advanced against the appellant by the Crown. The appellant knew precisely the case he was called upon to meet and the basis of the conviction is not ambiguous or in doubt.
The precise boundaries within which it is appropriate to charge a single offence based upon separate acts technically amounting to different offences, but properly regarded as a single criminal enterprise for these purposes, has not been authoritatively defined. The difficulties in this area are evident from the different judgments in Walsh v Tattersall and it is unnecessary to undertake an analysis of the various authorities which have grappled with this problem. The strict view favoured by Kirby J in Walsh v Tattersall has not prevailed, particularly in New South Wales; R v Moussad (1999) 152 FLR 373. The prevailing view, adopted by Dawson and Toohey JJ in their joint judgment in Walsh v Tattersall, favours the approach identified by Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584 at 607:
“The rule against duplicity … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the 18th Century, to charge them in a single count of an indictment.”
As Doyle CJ observed in R v GNN (2000) 78 SASR 293 at 299, “at a certain level the rule against duplicity or uncertainty has to be applied in a practical way”. After citing examples at each end of the spectrum, his Honour said:
“The purpose of the rule is, I consider, to avoid unfairness at trial, to enable decisions as to admissibility of evidence to be made on a sound basis, to enable a jury to be correctly directed, and to avoid uncertainty as to the basis upon which a person has been convicted and is to be sentenced.”
For these reasons, in my view the rule against duplicity was not infringed.
Count 4 - Falsity
As to count 4, the false information conveyed to the Council related to the acquittal of the $100 gift cards. The appellant stated in the acquittal document dated 28 November 2006 that he had given away specified gift cards having “chosen to give away [the $100 gift cards] … as $50 gift cards. The appellant submitted that the prosecution failed to establish that the statement was false.
The full terms of the document dated 28 November 2006 charged as being false in a material particular are set out in para [31] of these reasons. Through that document the appellant effectively advised the Council that he had donated “gift cards” of a value of $50 each to groups nominated in the document. Statements from persons who attended those functions were tendered. The written submissions for the appellant boldly state that as the witnesses did not categorically give evidence that the appellant did not hand out any cards at the various functions, the verdict is necessarily unsafe and unsatisfactory.
Each of the witnesses who provided statements were actively involved in the particular functions under consideration. None of the witnesses were aware of any donations being made by the appellant. Given the positions held by the witnesses and the extent of their involvement, if the appellant handed out donations by way of vouchers or gift cards it is highly unlikely that they would not have become aware of that fact. Given that the donations would have been made on behalf of the Council, it is also highly unlikely that the appellant would not have made the fact of the donations public.
The evidence to support the charge was not limited to the statements of those persons who attended the individual functions nominated in the document dated 28 November 2006. There was a substantial body of circumstantial evidence strongly pointing in the direction of falsity including evidence that none of the $100 gift cards had been converted into $50 cards. This evidence contradicted the statement in the document that “Since the purchase of the original $100 Gift Cards I have chosen to give away the items as $50 Gift Cards”. In addition, no independent evidence of the purchase of $50 cards by the appellant on or prior to 28 November 2006 could be found. The only purchase in addition to the purchase made on 30 June 2006 occurred subsequently on 4 December 2006 when the appellant purchased ten $50 gift cards, four of which he gave to the President of the Darwin Senior Citizens Association on 4 December 2006. The circumstantial evidence also included the personal use of the gift cards and the appellant’s conduct and statements at the meeting of the Committee on 25 October 2006, coupled with his failure to mention donations of gift cards to the Committee.
In a finding that was plainly open on the evidence, the Magistrate found that the appellant did not intend to donate the gift cards and that he appropriated the gift cards for his own personal use.
Against this background, and in the light of the Magistrate’s overall rejection of the appellant’s explanations, it was open to his Honour to reject the appellant’s evidence about the donations identified in the document dated 28 November 2006. His Honour referred to some of the appellant’s answers with respect to what the appellant expected to be done with the acquittal document as totally lacking in credibility and farcical.
The Magistrate made specific findings that the document was “an untrue reconstruction deliberately prepared in an attempt to satisfy the increasing pressure on the [appellant] to account.” These findings were plainly open to his Honour. Indeed, given the totality of the circumstantial evidence it would have been surprising if his Honour had reached any other view or had entertained a doubt about the falsity of the document dated 28 November 2006.
Count 4 – Wording of Charge
The appellant’s ground of appeal relating to the conviction on count 4 is broadly expressed and does not identify the precise complaints. Ultimately the appellant submitted that the wording of count 4 did not disclose an offence known to the law and, therefore, the conviction on count 4 should be quashed. The appellant also attacked his conviction on count 4 on the basis that the Crown had failed to prove that the acquittal document dated 28 November 2006 was made or required for an “accounting purpose”. In addition, counsel contended that the Crown had failed to establish that the appellant knew that the document was required for such a purpose.
Count 4 alleged an offence against s 233(b) of the Criminal Code and was expressed in the following terms:
“On the 28 November 2006
At Darwin in the Northern Territory of Australia
4.with intent to deceive, in furnishing information relating to the acquittal of gift cards purchased on the 30th day of June 2006, produced a document for an accounting purpose namely, the acquittal of the Gift Cards, that was false in a material particular.”
Section 233 of the Criminal Code is as follows:
“233. False accounting
Any person who, with a view to gain for himself or another or with intent to deceive or cause loss to another –
(a)destroys, defaces, conceals or falsifies any account or any record or document made or required for any accounting purpose or any similar purpose or for any financial transaction; or
(b)in furnishing information for any purpose produces or makes use of any account, or any such record or document referred to in paragraph (a), that is or may be misleading, false or deceptive in a material particular,
is guilty of a crime and is liable to imprisonment for 7 years.”
As to the wording of the charge, count 4 alleged that in furnishing the information concerning the acquittal of gift cards, the appellant “produced a document for an accounting purpose”. That wording does not accurately reflect the element of the offence concerned with the nature of the document, namely, that the document produced be a document “made or required for any accounting purpose”.
Notwithstanding the inadequate wording of count 4, the appellant did not seek particulars or call upon the prosecution to elect whether the document produced by the appellant was “made” or “required” for an accounting purpose. Nor was this point taken when counsel submitted to the Magistrate that the Crown had failed to establish a case to answer. This complaint was not the subject of a specific ground of appeal and at the hearing of the appeal no reference was made to it in the course of oral submissions. The first mention of the defect appeared in the supplementary written submissions.
Section 181 of the Justices Act states that it “shall be sufficient” if an information “gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged”. Count 4 of the information complied with s 181. It identified the relevant section and the essence of the allegation, namely, that in furnishing information relating to the acquittal of the gift cards, with intent to deceive the appellant produced the relevant document that was false in a material particular. The entire case was conducted on the basis that it was necessary for the Crown to establish that the acquittal document possessed the necessary characteristic of being a document required for an accounting purpose. No prejudice was caused to the appellant and no miscarriage of justice has occurred.
In addition, having regard to s 182 and s 183 of the Justices Act, if it were necessary to do so I would not hesitate to amend the information to insert the word “required” between the words “document” and “for”: Camilleri v Wilkinson (1983) 35 SASR 270 and 282.
This complaint is not made out.
Count 4 – Accounting Purpose
Turning to the question of whether the Crown established that the document was required for an “accounting purpose” within the meaning of s 233, in order to establish that the acquittal document was required for an accounting purpose it was not necessary that the document amount to a formal accounting document such as a balance sheet. Nor was it necessary that the primary purpose of the document be an accounting purpose, provided it was required for an accounting purpose: Attorney-General’s Reference (No 1 of 1980) [1981] 1 All ER 366; R v Holt (1983) 12 A Crim R 1 at 18. However, particularly when the primary purpose is not an accounting purpose, consideration must be given to the relationship between the document and the asserted accounting purpose to determine whether the document properly falls within the ambit of s 233.
This question of relationship was considered by the Victorian Court of Appeal in R v Jenkins (2002) 6 VR 81. The Court examined at length the nature of a document which would fit the description of a document “required for any accounting purpose” for the purposes of s 83(1) of the Crimes Act 1958 (Vic). The Court was concerned with valuations of land provided to a lender in support of an application for a loan and whether such documents were “made or required for any accounting purpose”. Evidence as to the use of the valuations appears to have been limited to establishing use by the lender in determining whether to grant the application for a loan.
In a judgment with which Charles JA agreed, Ormiston JA observed that once a decision had been made to grant a loan, “the valuation itself thereafter had no bearing on the amount of the loan for any future purpose and it would have had no direct relationship to any of the matters ordinarily recorded in the books of account of the [lender] …” [17]. His Honour added [17]:
“Nor, as I would understand the evidence, did the valuations contain other information as to loans or advances, such as one might find, say, in a loan application form, which might be seen fairly to be required for the preparation and maintenance of appropriate accounting records or indeed for any ‘accounting purpose’”.
Later in his reasons Ormiston JA noted that the valuations were not used to calculate the amount of the loan. Their purpose was to provide a check that the amount of the loan did not exceed prudential requirements of the lender.
After examining the history of the relevant legislation, Ormiston JA addressed the nature of the relationship between the document in issue and the relevant accounting purposes [38] and [39]:
“[38] … The only remaining issue is how close the relationship has to be between the document and the accounting purposes of a party intended to be affected. An ‘accounting purpose’ may be a somewhat loose concept but the intent is clear enough, and so the documents in question should either form part of, or be made or required in connexion with the preparation of, the account of the business, in which I would again include both the accounting records as well as the ultimate accounts prepared and published to those with a relevant interest by way of balance sheet, profit and loss account, income and revenue statement or the like. Again one should not be too rigid about the extent to which a document is required, but it should not be a chance or barely incidental connection; there must be some purpose to be served by relating the document, by bringing it into existence, attaching it for one purpose or another, or using the information contained therein, to the totality of materials which are kept or retained by a business or other entity as part of its accounting processes. One might even conceive, though it is not necessary here to conclude, that a document may be required for accounting purposes which is kept quite separately or returned, thrown away or destroyed, which is nevertheless required at some particular stage for the purpose of making up a business’s books of account or used and needed for some other aspect of a business’s accounting records.
What one should be concerned with, however, is a connection with the accounting processes of a business or other entity, not mere use in its business or other operations. For example, documents may be required for the negotiation of contracts or, in large enterprises, for the preparation of prospectuses, but, though particular documents might be required for those purposes, they would not thereby be required for accounting purposes, unless there were accounting aspects of a transaction to which the document was particularly referable. So on its proper construction, unless the section is to be construed on authority as meaning something wider, a requirement for some business purpose or another should not in itself be treated as sufficiently connected, at least unless there was also an incidental but related requirement for the accounting purposes of an enterprise.”
Ormiston JA then undertook a very helpful review of relevant authorities and drew conclusions which may be summarised as follows:
· “A business purpose is … not sufficient to satisfy the section” [55].
· “[W]hat is used in the accounting process may not necessarily be ‘required’ for an accounting purpose, in that the information may come from a number of sources.”
· Two principal elements are involved, “both essentially matters of mixed fact and law namely what is an ‘accounting purpose’ and secondly what is ‘required’ for that purpose” [57].
· The question as to whether a document is “required” involves the requirements of the particular business, but it also involves an “objective element”;
“After all the accused is being charged with creating or passing on false information of a particular kind and in particular circumstances and, as Professor Sir John Smith has pointed out [see Smith, Law of Theft, 8th Ed, (1997), para 6-06; Smith and Hogan, Criminal Law, 10th Ed, (2003), p 619], the accused’s intent cannot fairly be taken to extend to some activity of which reasonably he could not have been aware.” [57]
· “Accounting purposes” requires an examination of the connection between the document and the relevant accounts and why the information contained in the documents was needed by the particular business for its accounting purposes.
· As held in Attorney-General’s Reference (No 1 of 1980), the purpose may only be a subsidiary purpose, “but the section is still primarily concerned with the falsification of accounts and the wrongful use of accounts which have been falsified” and “it is only if the requirement for accounting purposes is sufficiently clear that one can conclude that there has been an unlawful falsification, production or use of such a record or document, within the meaning of the section” [59].
· “It has never been the section’s purpose to strike at the falsification, production or use of documents which only had an unintended or chance connection with a business’s accounting records” [59].
Ormiston JA concluded that the valuations were not required for any accounting purpose. O’Bryan AJA dissented on the basis that it was open to the jury to infer that the reports were required for an accounting purpose without the need for a witness to say so.
In R v Heinze, the Victorian Court of Appeal followed Jenkins. Nettle JA, with whose judgment on this issue Eames JA agreed, expressed the following view as to the effect of the decision in Jenkins [80]:
“In R v Jenkins this court decided by majority that for the purposes of s 83(1) of the Crimes Act, a document ‘required for any accounting purpose’ is one which either forms part of, or is made or required in connection with the preparation of the accounts of the business, including both the accounting records as well as the ultimate accounts prepared and published by way of balance sheet, profit and loss account, income and revenue statement or the like, and that for a document to be required for an accounting purpose, there must be a substantial connection with the accounting processes of a business or other entity, not a merely incidental connection. The court also held that the question of what are the accounting purposes of a particular business involves both a factual issue as to what the business did by way of keeping, maintaining and preparing its accounts, and also a purposive issue which requires a consideration of the kind of information used and therefore needed for the keeping of those accounts. Thus to determine whether a document is ‘required for any accounting purpose’, evidence would be expected both of the connection of the documents with the relevant accounts and also as to their requirement for that purposes (sic). It was therefore not enough to establish that a document was required for the purpose of granting a loan.”
As to the purpose of the acquittal document, regard must be had to the relevant statutory provisions governing the operations of the Council and the duties of the CEO, together with the evidence bearing upon the context in which the document was produced and its intended purpose.
The functions of the Council are governed by the provisions of the LGA. Division 9 of the LGA relates to financial administration and requires that the Council keep appropriate accounts of income and expenditure. The role of the CEO is dealt with in Div 7. In particular s 142A provides that the CEO is responsible “for the efficient and effective operation of the Council’s organisation” and, pursuant to s 142A(2), the specific duties of the CEO include providing advice and reports to the Council, ensuring that the resources of the Council are properly managed and maintained and ensuring that records required to be kept under the LGA or another Act “are properly kept and maintained”.
The accounting practices and standards that the Council is required to observe are specified in the Local Government (Accounting) Regulations. The overarching requirement is found in reg 5(1):
“1.A Council shall cause appropriate accounting records, including registers, to be prepared and maintained in a suitable form which adequately record the income, expenditure, assets and liabilities of the Council.
2.The records shall be kept in such a manner as to adequately distinguish between the different functions of the Council.”
Regulation 7 requires the CEO to set up and maintain internal controls to:
“(a) safeguard the assets of the Council;
(b)ensure the accuracy, completeness and reliability of the accounting data;
...”
Regulation 15 directs the CEO to place before each ordinary meeting of the Council a statement setting out the actual income and expenditure of the Council for the relevant period of the financial year. Pursuant to reg 16, the CEO is required to present to the Council each month “a statement of all accounts paid or payable by the Council” since the previous meeting. The Council is required to record in the Minutes the resolution confirming or authorising payment of the accounts.
The CEO gave evidence about reimbursement procedures in connection with goods or services purchased by the Council. He said it was his responsibility to approve all such claims. Once approval has been given, the claim is sent to the finance section where it is processed and payment made by cheque or electronic transfer.
Evidence was also led from the CEO concerning the role of the Corporate and Economic Development Committee (“the Committee”):
“Q. And what is the purpose of that Committee?
A.It’s a requirement under the local government accounting regulations that we submit schedules of payments to the Committee for them to look at every month. The process there is that a schedule of all of the payments that we’ve made for a particular month are on the following months agenda item for that Committee and at the committee meetings members often ask questions about what was that payment for and sometimes we don’t know the answers at the meetings, so we have to go and find out later and report back.
Q.And so what, if an item is queried and you are unable to provide a satisfactory explanation as to what that relates to, what becomes of that agenda item?
A.The agenda item usually continues. They usually accept the payments that we’re required – an officer is required to provide an explanation as to what the payments were, what they involved. So that often – that can involve an email to all elected members following the meeting or further information to be submitted at the council meeting at the end of the month or a further report to the following months committee meeting providing the details.
Q.Now which – you mentioned in your evidence that all payments made by council are considered by the Committee at the meeting. Is that every single payment made by council or only of certain categories?
A.No, all payments, everything – every payment that we’ve made is submitted to the Committee on a schedule. Some of them have already been made and paid and cashed but it’s a requirement that the council at least review that list. The final – the resolution of the council at the end of the month is that they note or endorse the payments or words to that effect, the schedule of payments that we’ve submitted.”
The evidence of the CEO as to the role of the Committee was unchallenged, as was similar evidence from the Chairman of the Committee. The Chairman explained that the responsibility of the Committee concerns the financial management and corporate governance of the Council and all cheques and payments were laid before the Committee for approval. In this process it was necessary for members of the Committee to be provided with appropriate details of each item of expenditure.
The acquittal document was produced by the appellant against the background of enquiries conducted by the CEO which he instigated because he was unsure why the items had been purchased. In the course of those enquiries the CEO asked the appellant as to the whereabouts of the gift cards. The CEO also gave the appellant “feedback in relation to the Council meeting on the 11 July” when the allowances had been set and informed the appellant of the requirement for a register:
“A.In particular I let him know that the Council introduced the requirement for a register of various things. A register of expenditure incurred by members on professional development and other areas, including the two items where the Council had set the fees for entertainment and gifts and donations.
Q.And what else was discussed?
A.As part of the discussion I did talk about the fact that one of the budget items had been overspent, that he was claiming reimbursement on.
Q.Which item was that?
A.The gifts and donations budget had already been spent.
...
Q.... Was any other topic discussed?
A.I did explain at the time that I was really raising this with him in the interest of accountability and being able to satisfy the process that the allowance had been accounted for and I did say I’d leave it to him to think about for a few days.”
On 25 August 2006 the CEO forwarded an email to the appellant confirming reimbursement and enquiring as to the gift cards in the following terms:
“Are you able to provide Wendy with details of the 18 vouchers so she can keep a record of them as we discussed?”
Following receipt of information that the Society had no knowledge of the donation of a refrigerator, the CEO made arrangements for the matter to be placed before the Committee. On 24 October 2006, prior to the meeting of the Committee, the CEO alerted the appellant to the fact that the question of reimbursement would be discussed at the Committee meeting that day. The appellant did not attend the meeting of the Committee on 24 October 2006, but the claim for reimbursement was discussed and the meeting was adjourned to the following day for the purpose of inviting the appellant to attend.
The appellant attended the meeting of the Committee on 25 October 2006. It began as an informal meeting chaired by the Chairman of the Committee who referred to the resolutions of the Council setting the allowances and to the Local Government (Accounting) Regulations. The Chairman explained to the appellant that the goods purchased by the appellant were assets of the Council and discussed the purpose of the asset registers which recorded assets prior to them being donated or “past their use date and written off or whatever”. Once written off the asset is removed from the register. According to evidence of the Chairman, she explained the need to know the location of the goods so that they could be placed on the register and the procedures and policies of the Council could be properly followed.
The Chairman’s reading of the Regulations included reg 16 and the requirement under the LGA that accounts be kept of income, expenditure, assets and liabilities. According to the Chairman, while various provisions were being read the appellant interrupted saying he was familiar with the Act and Regulations and did not need them read to him.
It was during this meeting that the appellant stated that he had no idea of the locality of the vouchers.
As mentioned, the CEO inspected the refrigerator on Sunday 29 October 2007. Later that day the CEO spoke with the appellant indicating that he remained concerned about the gift cards and that “they hadn’t been accounted for”. The CEO gave the following evidence concerning the appellant’s response:
“Peter was leaving to go to Singapore, I think, at that time and I suggested that he might think about where those vouchers were and when he came back be able to provide me with some information as to where they had been – who they’d been donated to as well. …”
On 31 October 2006 the Council resolved to refer the matter to the appropriate authority. That night the CEO telephoned the appellant in Singapore and advised him of that decision.
On 9 November 2006 the CEO met with the appellant and their discussion included reference to the CEO “needing to be able to locate where [the gift cards] were and put them in a register”.
On 22 November 2006 police executed a search warrant at the appellant’s apartment. They found four of the gift cards and the presentation covers for a further three gift cards. Six days later the appellant signed the acquittal document dated 28 November 2006. The appellant’s personal assistant gave evidence that the appellant gave the acquittal document to her and “mentioned that Mr McGill was looking for it or needed it to be passed on to Mr McGill”.
The findings of the Magistrate were expressed in the following paragraphs of his reasons:
“143. There is ample evidence of the purpose which is an element of the charge in count 4. In part that comprises the combination of the evidence of the specific purpose of the defendant’s budget, the CEO’s overriding obligation to ensure verification of expenditure of Council funds, the role of the Committee in reviewing, verifying and ratifying Council payments the evidence of the defendant to the effect that he knew he had to account for his expenditure, the evidence that Mr McGill had told the defendant on 17 July 2006 of the establishment of the donations register and of the requirement to enter details of donations therein and specifically and critically, that on 9 November 2006 Mr McGill told the defendant that he needed the information regarding disposal of the vouchers to go into the donations register. This last instance was critical as it was proximate to the date when Exhibit P12 was provided by the defendant. These indicate the accounting purpose particularised in the charge. I do not consider it necessary that there be evidence of accounting procedures. Any bona fide purpose will suffice for the purposes of the charge. The accounting purpose here, put simply is the verification of Council expenditure. That has been sufficiently proved given the evidence of the nature of the requests for information, the timing of those requests, and the discussion of those items at the Committee meeting and the existence of the donations register.
…
166. In relation to count 4, I find that the defendant had the intention to deceive when providing Exhibit P12 to Mr McGill. I find that that document was provided for an accounting purpose, specifically the verification of expenditure of the funds of the Darwin City Council. I reject the evidence of the defendant as to the making of the donations therein. I find that the document was false in its entirety and consequently it is false in a material particular.”
The Magistrate found that the purpose of the acquittal document was “verification of Council expenditure” and that this purpose was an “accounting purpose” within the meaning of that expression as it is used in s 233(b) of the Criminal Code. In my opinion his Honour was correct in so finding. Through the process of reimbursement, Council funds in the form of a Lord Mayoral allowance had been expended in purchasing assets, namely, the gift cards. Normal accounting procedures required the Council not only to record the fact of the purchases, but also the disposition of those assets. For example, it would hardly be surprising if an auditor sought to ascertain from the accounting records of the Council what had happened to the gift cards. The acquittal document was the only document through which the Council could create the appropriate accounting record of the disposition of the particular assets. In addition, bearing in mind the nature of the assets, the acquittal document was the only written accounting record that Council funds had been properly applied in making the purchases. If proper use was not made of the asset, Council funds may have been expended for an inappropriate purpose. The acquittal document was substantially and not incidentally connected with the accounting process of the Council.
As a consequence of the way in which count 4 was framed and the manner in which the trial was conducted, the Magistrate specifically addressed only whether the acquittal document was “produced” for an accounting purpose and not whether it was “required” for an accounting purpose. However, the evidence left no room for doubt that the document was required for an accounting purpose and it is clear from the reasons of the Magistrate that his Honour was satisfied that the acquittal document was required by the Council for an accounting purpose.
There is an additional view that could be taken of the reasons of the Magistrate. When the Magistrate’s reasons are read in their entirety, it is apparent that his Honour found that the appellant knew that the CEO was seeking verification of Council expenditure. His Honour specifically found that the acquittal document was “deliberately prepared in an attempt to satisfy the increasing pressure on the defendant to account”. While the primary purpose was to satisfy those enquiring about the gift cards, nevertheless it can be said that as the appellant knew the acquittal document would be used for an accounting purpose, inevitably the appellant “made” the document for such a purpose.
Count 4 – Mental Element
The question as to the mental element of an offence against s 233 is not without difficulty. The primary mental element requires that the person producing the relevant document must do so with a view to personal gain or gain for another or with intent to deceive or cause loss to another. However, it is not immediately clear from the terms of s 233 whether in producing the relevant document, the person producing the document must be aware that the document was made or required for an accounting purpose or, at the least, must realise that it might be so required.
The essence of the appellant’s submission is found in a passage from ATH Smith, Property Offences (The Protection of Property through the Criminal Law) (1994), part of which was cited and adopted by the appellant [24-05]:
“The Court [in Attorney-General’s Reference (No 1 of 1980] did not consider whether the section requires proof of mens rea beyond dishonesty and with a view to gain or intent to cause loss, in the form of knowledge that the document was to be used for accounting purposes, or a realisation that it might be so required. Although the section is silent on the point, an offence carrying up to seven year’s imprisonment should not on principle be construed as giving rise as to what is in effect strict liability as to one element of the offence, and it should be a defence for the defendant to claim that he did not appreciate the use to which the proposal form would be put. In context, the defence seems highly unlikely to succeed, since the retailer must ordinarily be aware of the general use for which the document is required.
If that is so, the prosecution should have been required at least to prove that the appellant intended that the document should be forwarded to the finance company, and realised that it would be put to some accounting purpose, at least it should be open to a defendant to deny that he was so aware. The consumer also commits the documents offence in the situation with which the Court of Appeal was concerned in the case giving rise to the Attorney-General’s Reference, but again only if he is aware of the use to which the document will be put.”
It is necessary to consider s 233 in its context and to have regard to the various forms of conduct that will amount to an offence against s 233.
Division 4 of the Criminal Code is concerned with frauds by trustees and officers of corporations and with false accounting. In particular, s 233 is concerned with persons who, with intent to achieve personal gain or gain for another or with intent to deceive or cause loss to another, carry out certain acts with respect to particular types of documents. Subsection (a) is concerned with destroying, defacing, concealing or falsifying any “account” or any “record” or a “document made or required for any accounting purpose or any similar purpose or for any financial transaction”. Whether a document amounts to an “account” or a “record” or a “document made or required for any accounting purpose” is a question of fact for determination by the trier of fact. The relevant conduct is the destruction etc of a document fitting such description and the mental element is found in the intent to achieve personal gain or gain for another or in the intent to deceive or cause loss to another. The nature of the offence does not lend itself to an additional requirement that the offender know that the document amounts to an “account” or a “record” or a “document made or required for any accounting purpose”.
Similarly in s 233(b) the Legislature is concerned with the production or use of such a document, when furnishing information for any purpose, provided the document “is or may be misleading, false or deceptive in a material particular.” Again, the primary mental element is the intention for gain or intention to deceive or cause loss.
By way of comparison, s 235 is concerned with the destruction, defacing or concealing of a document that is evidence of title to land or other specified documents, such acts occurring with an intent to defraud. Section 235 does not readily lend itself to the view that the person who acts with intent to defraud must also realise that the document is of a particular character such as evidence of title to land.
In the absence of a defence based on a mistake of fact, I am inclined to the view that for the purposes of s 233 it is not a requirement that the prosecution prove that the appellant knew that the document was required for an accounting purpose or realised it might be so required. However, the appellant’s written submissions with respect to this issue were brief and the respondent did not address it. In addition, as I have said the Magistrate found that the appellant knew that the document was required for an accounting purpose and, in my opinion, the evidence left no doubt that the appellant was so aware. In these circumstances, and without the benefit of full analysis and proper research, it is neither necessary nor appropriate for me to express a final view. The mental element for which the appellant contended was proved to exist.
Unsafe and Unsatisfactory
In addition to the specific complaints to which I have referred, the grounds of appeal make a general assertion that the verdicts on each count were “unsafe and unsatisfactory and/or against the weight of the evidence”. I reject this complaint.
The findings of fact made by the Magistrate, including his Honour’s findings with respect to the appellant’s lack of credibility and the deliberate lies told by the appellant by reason of a consciousness of guilt, were open to his Honour, as was his Honour’s finding that from the outset the appellant did not intend to donate the refrigerator or gift cards. Not only were these findings open to his Honour, in my view it would have been very surprising if his Honour had reached any other findings. As I have said, a reading of the transcript has led me to the firm view that as to matters in contention the appellant’s evidence was singularly unimpressive and, at times, was demonstrably evasive and false. I am left in no doubt that the findings of the Magistrate were correct.
In essence, the findings made by the Magistrate amounted to a conclusion that from the outset the appellant embarked upon a deliberate course of fraudulent conduct by seeking reimbursement when he intended to keep and use the refrigerator and gift cards for personal purposes and did not intend to donate the goods or use them for any other proper Council purpose. The findings lead to the inevitable conclusion that the appellant succeeded in carrying out his fraudulent intention when, by deception, he obtained $2,758.00 from the Council by way of reimbursement. I am left in no doubt that these conclusions were clearly proven by the evidence. As to the specific offences charged, I am left in no doubt about the guilt of the accused.
Sentence
On the basis of the findings of the Magistrate, particularly the finding that stealing occurred on 30 June 2006, the appellant submitted that the individual sentences of three and four months, together with the total of seven months, were manifestly excessive. In addition, the appellant contended that requiring him to serve any actual period of custody amounted to a manifestly excessive sentence.
For the reasons that follow, in my opinion, based on stealing having occurred on 30 June 2006 and the factual findings of the Magistrate, the appellant’s contentions are without substance. The individual sentences and total period of seven months were lenient. In addition, requiring the appellant to serve two months was far from excessive. His Honour could properly have required the appellant to serve a period longer than two months.
The written submissions of the appellant identified the following matters as of critical importance to the question of sentence:
“a.The exemplary life the appellant had previously led, including no previous convictions;
b.The public service he had previously rendered;
c.The public humiliation and loss of office he faced because of any conviction in itself;
d.There was no likelihood of the appellant ever re-offending;
e.Society did not need to be protected from the appellant in the future.”
The Magistrate was obviously, and not surprisingly, troubled because he was dealing with a first offender of mature age who had previously been of exemplary character. His Honour correctly categorised the offending as serious and noted that the second offence was committed in an attempt “to deflect attention away from the criminality of the first offence”. His Honour correctly observed that a high degree of trust was placed in the appellant as an elected official and he breached that trust in a manner which amounted to a form of corruption. In those circumstances, the Magistrate properly regarded general deterrence as a matter of significance in the exercise of the sentencing discretion.
The Magistrate correctly noted that the appellant was not entitled to the reduction in sentence which is given to those offenders who plead guilty. As to remorse, his Honour made allowance for remorse which he observed came late and which he described as a “qualified expression of remorse”. This was a generous approach. On the material before the Magistrate and me, I am unable to discern any evidence of genuine remorse. I do not regard the statement of the psychiatrist that the appellant “accepts the determination of the presiding Magistrate and acknowledges wrongdoing” as evidence of genuine remorse. His Honour would have been entitled to reject the suggestion that the appellant was truly sorry for his dishonest conduct.
The Magistrate took into the account the appellant’s exemplary background and community service. His Honour had proper regard to the fall from grace and the vilification about which he had been informed.
As to the question of suspension, the Magistrate carefully weighed the competing considerations. Those considerations included his Honour’s view that the prospects of rehabilitation were excellent and the risk of re-offending minimal.
I am unable to discern any error in the approach of the Magistrate. All relevant considerations were taken into account, including the psychiatric report and those matters to which the appellant has referred on this appeal. None of those matters, either individually or in their cumulative effect, necessarily required that a fully suspended sentence be imposed. It was well within the range of the sentencing discretion to decline to fully suspend the sentence.
The observations I have made concerning sentence apply to sentence imposed upon the basis of the facts found by the Magistrate, including the finding that stealing occurred on 30 June 2006. If I am wrong in my conclusion that stealing occurred on 30 June 2006, with the consequence that the conviction should be amended to the extent that stealing occurred on 25 August 2006 and involved only seven unused gift cards of the total value of $700 rather than 11 gift cards of the value of $1,100, the factual basis for sentencing purposes would be altered. In addition to a reduction in the number and total value of gift cards stolen, the altered date of the offending would mean that the appellant was unlawfully in possession of the refrigerator for a period of two months from 25 August 2006 to 28 October 2006 rather than the period of four months used by the Magistrate for the purposes of sentencing.
In my opinion, the altered date would not significantly affect the factual basis of sentencing. The crimes committed by the appellant were not committed spontaneously on the spur of the moment. The appellant set out on a deliberate course of dishonest conduct. From the outset the appellant used the refrigerator and gift cards as his personal property and intended to deceive the Council in order to obtain personal gain. When enquiries commenced, rather than comply with his obligations as Lord Mayor, the appellant persisted with the perpetration of his fraud and endeavoured to cover up his dishonest conduct by lying to the Council, both orally and in writing. The appellant successfully carried out his intended fraud by deceiving the Council into reimbursing him in full. Thereafter, in a separate criminal enterprise, the appellant continued to cover up his criminal conduct by committing the offence charged in count 4. The appellant abused the high degree of trust that was placed in him as an elected official of the Council and compounded that abuse by persisting in his endeavours to avoid donating the refrigerator and accounting for the gift cards. These facts provide the context in which the crimes for which the appellant is to be sentenced were committed.
The appellant is not entitled to the benefit of a plea of guilty, but he is entitled to the full benefit of his prior exemplary character and service to the community. Further, the appellant is entitled to the benefit of the Magistrate’s finding that his prospects of rehabilitation are excellent and the risk of re-offending minimal.
Notwithstanding the significant matters of mitigation, bearing in mind the seriousness of the offending, if I was required to exercise my own discretion on the basis that stealing occurred on 25 August 2006, I would have imposed the same sentences as those imposed by the Magistrate, including the accumulation and period to be served.
Orders
The appeals against conviction and sentence are dismissed.
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