Alexander v Bakes
[2023] ACTSC 103
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Alexander v Bakes | ||||||||||
| Citation: | [2023] ACTSC 103 | ||||||||||
| Hearing Date: | 28 April 2023 | ||||||||||
| Decision Date: | 5 May 2023 | ||||||||||
| Before: | Berman AJ | ||||||||||
| Decision: | See [148] | ||||||||||
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – Appeal against finding of guilt – Nature of appeal from Magistrates Court to Supreme Court – Whether error established in the amendment of the charges – Whether the magistrate erred in finding the property belonged to a particular entity – Whether tendency and coincidence reasoning used – Whether findings of guilt are reasonable and supported by evidence – Whether magistrate mistook the facts – Error established – Evidence establishes guilt of the appellant – Appeal allowed in part | ||||||||||
| Legislation Cited: | Criminal Code 2002 (ACT) s 308 Evidence Act 2011 (ACT) ss 97, 98 Magistrates Court Act 1930 (ACT) ss 28, 208, 218 | ||||||||||
| Bakes v Alexander [2022] ATCMC 10 | |||||||||||
| Cases Cited: | |||||||||||
| Borodin v The Queen [2006] NSWCCA 83 DPP (NSW) v Chaheh [2017] NSWSC 1061 Gillard v The Queen [2013] ACTCA 17 Ji v Stone [2023] ACTSC 54 Kartawidjaja v Rowe [2016] VSC 176 Laipato v Truman [2017] ACTSC 351 Lodge v Lawton [1978] VR 112 Martinello v The Queen [2006] ACTCA 28 McFarlane v Van Eyle [2022] ACTCA 68 Moodie v The Queen (1952) 54 WALR 80 | |||||||||||
| O’Connell v McMennemin [2014] ACTSC 112 | |||||||||||
| Pappas v Mirenda [2021] ACTSC 329 R v Casey (1926) 26 SR (NSW) 189 R v DF (No 3) [2013] ACTSC 22 R v Dossi (1918) 13 Cr App Rep 158 R v Hawcroft [2009] ACTSC 145 | |||||||||||
| R v O’Brien [1981] WAR 305 | |||||||||||
| R v Pfitzner (1976) 15 SASR 171 R v Stringer [2000] NSWCCA 293 R v Tahana [2019] ACTSC 54 R v VHP (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Handley JA and Studdert J, 7 July 1997) | |||||||||||
| R v Westerman (1991) 55 A Crim R 353 | |||||||||||
| Suhajceck v Staples (Unreported, Supreme Court of Western Australia, Ipp J, 8 March 1990) The Queen v King (1978) 19 SASR 118 | |||||||||||
| Parties: | Aaron Alexander (Appellant) | ||||||||||
| Nathan Bakes (Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| E Chen (Appellant) | |||||||||||
| A Williamson SC (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Legal Aid ACT (Appellant) | |||||||||||
| ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | SCA 38 of 2022 | ||||||||||
| Decision under appeal: |
| ||||||||||
| Court File Number(s): See schedule | |||||||||||
| Berman AJ: | |||||||||||
| Introduction | |||||||||||
1․ | After a five-day hearing in the Magistrates Court, in a commendably concise judgment, Aaron Alexander was found guilty of 65 charges of theft contrary to s 308 of the Criminal Code 2002 (ACT) (see Bakes v Alexander (No 2) [2022] ACTMC 19). His Honour found the appellant not guilty on five charges. He has not yet been sentenced. He now appeals to this Court against his conviction. | ||||||||||
2․ | The appellant was the president of the Gungahlin United Football Club. For some time, the club operated without a treasurer, with the appellant performing that role. During | ||||||||||
| that time, from September 2017 until June 2018, the appellant operated the club’s main | |||||||||||
| bank account. He also had possession of a debit card attached to a separate club account. | |||||||||||
| 3․ | The charges relate to a number of transactions performed by the appellant and can be divided into four categories. | ||||||||||
| 4․ | There were nine electronic transfers of money from the club’s main account to | ||||||||||
| Macquarie Leasing which represented lease payments for the appellant’s private motor | |||||||||||
| vehicle. The appellant was found guilty in relation to all nine of the charges in this category. | |||||||||||
| 5․ | There were debit card transactions by which purchases were made using money from | ||||||||||
| one of the club’s bank accounts. The appellant was found guilty in relation to all charges | |||||||||||
| under this category except for one. | |||||||||||
6․ | There were electronic funds transfers from the club’s bank account to one of the appellant’s accounts. The appellant was found guilty in relation to all charges in this | ||||||||||
| category. | |||||||||||
| 7․ | Finally, there were cash withdrawals from the club’s bank accounts. The appellant was | ||||||||||
| acquitted of all charges in this category. | |||||||||||
| 8․ | The appellant now appeals from his convictions on five grounds: |
a. The learned magistrate erred in accepting an amendment to all charges the subject of conviction; b. The learned magistrate erred in finding that the property stolen belonged to the entity as particularized in the charges; c. The learned magistrate impermissibly engaged in tendency and coincidence reasoning; d. The findings of guilty in respect of all charges except CC2021/4887 – 4902 are unreasonable and cannot be supported by the evidence; and
e. The learned magistrate mistook the facts.
| 9․ | I have decided that the appeal should be allowed in part. Briefly stated, the conclusions I have reached are mentioned below. |
| 10․ | In respect of Ground A, this is an attempt to elevate the particulars of a charge to an element which must be proved by the prosecution beyond reasonable doubt. On a charge of theft, the prosecution is not required to prove the precise legal categorisation of the property taken. There is authority which suggests the contrary, so if I am wrong about that, the Magistrate was correct to allow amendments to the charges so that they reflected how the law describes the subject of the thefts. |
| 11․ | In respect of Ground B, this is another attempt to elevate the particulars of a charge to an element which must be proved by the prosecution beyond reasonable doubt. On a charge of theft, the prosecution is not required to prove the precise identity of the entity from which it was taken. |
| 12․ | In respect of Ground C, the Magistrate did not engage in tendency and coincidence reasoning. |
| 13․ | In respect of Ground D, I am required to make my own assessment of the evidence adduced by the prosecution in the Magistrates Court (there was no evidence from or called on behalf of the appellant). Having done that, I am satisfied that the appellant is guilty beyond reasonable doubt on some of the charges on which he was found guilty by the Magistrate but I would not have found him guilty on some others. |
| 14․ | In respect of Ground E, the Magistrate did make one minor error of fact as asserted in this ground, but that was immaterial. |
| 15․ | I will now provide reasons for those conclusions. |
Ground A
| 16․ | In order to understand how and why the charges were amended, it is necessary to go into some procedural history of this matter. |
| 17․ | The appellant was initially charged with 108 counts of obtaining property by deception. |
| The property was described as “money”. These matters were to be heard on 10 May | |
| 2021, but when, in its opening address, the prosecution gave notice that it intended to rely on the statutory alternative charges of theft, the appellant complained that he had not been provided with adequate particulars. It was at this stage that the then presiding Magistrate (Magistrate Lawton) suggested to the prosecution that the charges should | |
| allege a “chose in action” rather than “money”. The prosecution did not agree, but in | |
| any case, the hearing was vacated so that particulars of the charges could be provided in writing. | |
| 18․ | The matter was next in the Magistrates Court on 7 February 2022 for a hearing before |
| a different Magistrate, Magistrate Theakston. Notwithstanding Magistrate Lawton’s | |
| earlier suggestion, the charges continued to particularise the property which had been | |
| stolen as “money” rather than a “chose in action”. | |
| 19․ | At the conclusion of the prosecution case, the appellant made a no case submission. |
| The basis of the appellant’s submission was that the prosecution had failed to prove that “money” had been stolen. The appellant argued that if anything had been stolen, it | |
| was a “chose in action”. The prosecution continued to take the stand it had taken all along, namely, that the property was correctly described as “money”. However, they had a fallback position, if it was wrong then it would seek the Court’s leave to amend all the theft charges to alleged theft of a “chose in action”. | |
| 20․ | In a judgment delivered on 19 May 2022, the Magistrate accepted that there was no case for the Appellant to answer, finding in favour of his submissions regarding the legal description of the property (see Bakes v Alexander [2022] ATCMC 10). His Honour found that as far as all charges were concerned, the prosecution had failed to prove that “money” had been taken. However, under s 28 of the Magistrates Court Act |
| 1930 (ACT) his Honour allowed each charge to be amended so that it referred to the | |
| property as a “chose in action”. His Honour held at [5] that while there is: |
… no evidence that actual money was stolen, there is evidence that an intangible right was
appropriated. As this was what the prosecution opened on, I am satisfied there would be no injustice to the defendant, I will amend those charges to particularise the property accordingly.
| 21․ | It is the decision to amend the charges which is the subject of appeal under Ground A. |
| 22․ | At first blush, the idea that an accused is entitled to be acquitted simply because of an incorrect description in the charge faced by the accused is surprising. There is a distinction between the elements of offences and the particulars of those offences. What the prosecution must prove beyond reasonable doubt before an accused can be convicted of an offence, are the elements of that offence and it is generally not necessary for the particulars of those elements to be proved (see for example DPP (NSW) v Chaheh [2017] NSWSC 1061). |
| 23․ | A person is not entitled to be acquitted because they drove a truck without consent of the owner and whilst disqualified from driving at a time, which was different from the time specified in the charges against them (see Pappas v Mirenda [2021] ACTSC 329, DPP (NSW) v Chaheh at [46] and the cases cited therein). The date on which an offence is alleged to have been committed is also something that does not need to be proved (see R v Dossi (1918) 13 Cr App Rep 158), unless of course the age of a complainant is a critical issue (see for example R v DF (No 3) [2013] ACTSC 22), or the accused had an alibi for the date specified in the charge (see R v Pfitzner (1976) 15 SASR 171 at 185, R v Stringer [2000] NSWCCA 293 at [20] and R v VHP (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Handley JA and Studdert J, 7 July 1997)). |
| 24․ | On a charge of theft, it is not necessary that property found in possession of the accused is the actual property to which the charge relates. The possibility that galvanised pipes found in possession of a person accused of the theft were not the same galvanised pipes taken from the victim of a theft does not entitle the accused to an acquittal (see Moodie v The Queen (1952) 54 WALR 80). The fact that 19 cartons of cigarettes found in possession of an accused charged with theft could not be positively identified as the cigarettes stolen from premises which had been broken into also did not of itself entitle the accused to an acquittal (see Suhajceck v Staples (Unreported, Supreme Court of Western Australia Court of Criminal Appear, Ipp J, 8 March 1990)). The same can be said about rabbit skins too (see R v Casey (1926) 26 SR (NSW) 189). |
| 25․ | Ordinarily, it would be expected that the precise legal categorisation of property alleged to have been stolen would also be something which does not have to be proved beyond reasonable doubt for an accused to be found guilty. However, Mr Chen, for the appellant, has some authority on his side. That is the decision of this Court in R v Hawcroft [2009] ACTSC 145. Magistrate Lawton had made the parties aware of that decision when the matter was first before him, and it was that judgment which persuaded Magistrate Theakston to uphold the no case submission made at the close of the prosecution case. |
| 26․ | In R v Hawcroft, the accused was charged with the theft of money from trust funds held in her capacity as trustee for five beneficiaries. It was argued on her behalf that the charges could not be made out because, if she used trust funds for her own purposes, she did not steal sums of money but rather choses in action. Using one charge as an |
| example, Marshall J at [18] held that “if the accused stole anything, it was a chose in | |
| action and not the actual $2,000.” At [22] he held “[c]harges must be framed with precision to identify correctly and allege properly the property to be stolen…”. | |
| 27․ | During oral submissions on the hearing of the appeal, I asked Mr Chen if he could identify any other case where an accused should be acquitted if the property they stole does not meet the precise legal description of the property particularised in the charge. He was unable to do so. That is not surprising, and it is no criticism of Mr Chen. It seems |
| that only in the area of the distinction between “choses in action” and “money” is there | |
| authority for the proposition that an error in describing the property stolen should lead to an acquittal of the accused. | |
| 28․ | R v Hawcroft did not come out of the blue however. The submissions on behalf of the appellant and the decision of Marshall J were based on another decision, Martinello v The Queen [2006] ACTCA 28. In that case, the appellant had been charged with stealing choses in action from a company, Credit Union Services (Australia) Ltd known |
| as “Cuscal”. The Court (Crispin P, Gray and Lander JJ) held at [13] that: |
It is, of course, necessary for any prosecutor who accuses a person of theft to specify what has allegedly been stolen and this may need to be done with particular clarity when the object of the alleged theft is not some item of corporeal property but a chose in action.
| 29․ | Martinello was a case where a person was charged with the theft of choses in action which were the property of Cuscal, where Cuscal never had any chose in action and |
| thus, at [14], “the appellant had been convicted of stealing things that had never existed”. | |
| 30․ | It is arguable that Martinello is not authority for the proposition advanced by the appellant in Hawcroft. Martinello was a case where the Court held that the property allegedly stolen never existed. But in Hawcroft, the property existed, it is merely that its |
| correct legal description was a “chose in action” and not “money”. | |
| 31․ | It is, however, not necessary for me to take this issue any further because, whether or not Hawcroft was correctly decided, I am satisfied that the Magistrate was correct to allow each of the charges to be amended. Even if a person is entitled to be acquitted if |
| they are charged with theft of “money”, in circumstances where the property they took was a “chose in action”, that does not mean that a Magistrate should refuse to allow a | |
| charge to be amended where the property has been misdescribed. | |
| 32․ | Section 28 of the Magistrates Court Act 1930 (ACT) provides: |
28 Power of court to amend information
(1) If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided.
(2) The court must not make an amendment under subsection (1) if it considers
that the amendment cannot be made without injustice to the defendant.
| 33․ | Thus, the Court is given power to amend a charge in a way “that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided” and |
| no amendment should be made if “the amendment cannot be made without injustice to | |
| the defendant”. | |
| 34․ | The real question in dispute in the Magistrates Court, in the present matter, was not the precise legal definition of the property the subject of the charge. The appellant was under no misapprehension as to what it was he was said to have done. The real issues in the Court below were firstly, whether he had done the physical acts necessary to transfer the money from one account to another, or to use the debit card, or to withdraw |
| cash from the club’s bank account, and secondly, if he had done these things, whether | |
| he done so dishonestly. | |
| 35․ | It is difficult to see how the amendment caused any relevant injustice to the appellant. Certainly, he was entitled to be disappointed that the legal point raised by his solicitor, whilst found to be a good one, did not ultimately lead to his acquittal. He was probably |
| even entitled to be more disappointed than usual because the prosecution’s application | |
| to amend the charges came as late as it could have possibly come. | |
| 36․ | Leave to amend charges laid against an accused should not be refused simply because those amendments would deprive an accused of an acquittal. In Borodin v The Queen [2006] NSWCCA 83, the accused was charged with robbery whilst armed with a knife. |
| After the evidence of the Crown’s principal witness had been given, the prosecution | |
| sought to amend the indictment to allege that the offensive weapon was a firearm. The trial judge allowed the amendment to be made. The Court of Criminal Appeal dismissed the appeal and observed at [25]: |
Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.
| 37․ | Where an accused complains that the amendment of a charge has caused prejudice, it is incumbent upon him to identify what that prejudice is with particularity (see Gillard v The Queen [2013] ACTCA 17 at [65]-[69]). |
| 38․ | The appellant was unable to specify at all, let alone with particularity, any extra question that he would have asked in cross examination or evidence that he would have called |
| had he known that the amendment would be allowed. The high point of Mr Chen ’s | |
| submissions is the possibility that having found the killer point regarding the error in | |
| charging the theft of “money”, when the property was really a “chose in action”, he may | |
| have inadequately prepared other aspects of the defence for his client. The suggestion was that had he been aware that the Magistrate would allow the charges to be amended to reflect the correct legal description of the property, he would have devoted more time to a consideration of the evidence. It is important to note that there was no evidence of this. Mr Chen appeared in the Magistrates Court and also before me on appeal and so, appropriately, he did not attempt to give evidence as to what actually occurred. | |
| 39․ | Even if I accepted that possibility, which I certainly do not, Mr Chen did not point to any aspect of the way he conducted the defence of the appellant which could have been improved had he had more time to prepare the matter. He did not identify what different questions would have been asked or what different witnesses would have been called |
| if the charge had at all times described the property as a “chose in action”. | |
| 40․ | Having myself reviewed what Mr Chen did in the Magistrates Court, I fail to see any deficiencies at all in any of the questions asked in cross examination or the submissions made to the Magistrate. |
| 41․ | The result is that I am satisfied that the amendments which are subject of this ground of appeal were, in the terms of s 28 of the Magistrates Court Act 1930 (ACT), |
| “necessary to enable the real question in dispute to be decided” and “made without | |
| injustice to the defendant”. | |
| 42․ | Appeal Ground A therefore fails. |
Ground B
| 43․ | Each of the theft charges on which the appellant was convicted particularised the |
| property to have been taken from “Gungahlin United Football Club”. Although in the | |
| Magistrates Court, it was argued that the prosecution had not proved the property belonged to the Gungahlin United Football Club, the submissions made on appeal under this ground make it clear that the appellant complains that there was no evidence that the Gungahlin United Football Club actually existed. | |
| 44․ | The charges of theft were laid under s 308 Criminal Code 2002 (ACT) which provides: |
A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.
| 45․ | Thus, it is not an element of the offence that the property which is appropriated belongs to a particular person. As far as this aspect of the offence is concerned, all that the |
| prosecution needed to prove was that the property belonged to “someone else”. Even if there was no such thing as the “Gungahlin United Football Club”, it is clear that the | |
| various choses in action belonged to somebody, and that somebody was not the appellant. | |
| 46․ | Support for that conclusion can be found in Lodge v Lawton [1978] VR 112 at 116-117: |
In the present case the omission to prove the ownership of the money and cheques was not a fatal defect. The reference in the information to Bob Jane Imports Pty. Ltd. was surplusage
and should have been ignored. This was not a case which depended upon ‘any special ownership of property or special value of property’ (see R. 6(1) of the Presentment Rules),
and the information indicated with reasonable clearness the property referred to, thus making
it unnecessary to name the person to whom the property belonged. The defendant … could
not be in any doubt or uncertainty as to what was alleged against him.
| 47․ | That principle was applied in The Queen v King (1978) 19 SASR 118 at 127: |
In this case, the meat was clearly identified and there was no doubt that it was the property of some person or company which had entrusted it to SAMCOR. Indeed Mr. Peek conceded that the evidence disclosed sufficient property in SAMCOR to justify a conviction on a charge of larceny from SAMCOR. Moreover, there was no question of the appellant having the consent of the owner, whoever the owner might be, to take the meat. There was no uncertainty as to what was alleged against the appellant. In my opinion, it was not necessary for the prosecution to prove that the meat was owned by Jackson Corio Pty. Ltd. and it is therefore not necessary to consider whether the evidence proved ownership by that company.
| 48․ | In some cases, the identity of the person from whom the property is taken is important. |
| For example, in R v O’Brien [1981] WAR 305 the stealing, the charge in the indictment, | |
| was of property belonging to a “public authority under the Commonwealth” and it was | |
| held that the offence could not be prosecuted under the state Criminal Code. However, no such considerations arise in the present case. | |
| 49․ | I have to note that in Suhajceck v Staples, the decision in R v O’Brien was cited as |
| authority for the more general proposition that in a case where the prosecution alleged that cigarettes had been stolen from a particular person, it was incumbent upon them to prove that the cigarettes were the property of that person. | |
| 50․ | Therefore, in case Suhajceck v Staples is right and the other cases to which I have referred are wrong, it is necessary I should explain why, even if I were wrong in my conclusion that all that the prosecution needed to prove in the present case was that |
| the property belonged to “someone else”, I would nevertheless have dismissed this | |
| ground because, contrary to what was submitted on appeal, there was evidence as to the existence of the Gungahlin United Football Club. For example: |
(i) Exhibit P6 is the Constitution of the “Gungahlin United Football Club”
which provides that “the name of the club is Gungahlin United Football
Club (ACT) Inc”;
(ii) NAB bank statements addressed to the “Gungahlin United Football Club”
were in evidence, for example exhibit P 17, P 18, P 19, and P 20; and
(iii) In their written submissions, the respondent and the appellant make reference to exhibit P 21. That document, to be found at page 149 of the
appellant exhibit book filed in this appeal, is addressed to the “Gungahlin United Football Club Incorporated” and records that the Constitution of the
club has been accepted and placed on the public register by the ACT
Government. It advises that the “amended constitution/rules apply to the governance of Gungahlin United Football Club”.
| 51․ | It is not clear whether the appellant seeks to rely on the differences between the various |
| descriptions of the entity, “Gungahlin United Football Club”, “Gungahlin United Football Club (ACT) Inc”, and “Gungahlin United Football Club Incorporated”. Such differences | |
| are immaterial. They are merely different ways of referring to the same entity. | |
| 52․ | In submissions before me, the appellant sought to rely on R v Westerman (1991) 55 A Crim R 353, particularly at 359. Properly understood, that decision is simply an example of a case where the evidence was such that the amendment of the dates on |
| which an offence is alleged to have been committed altered “the whole of the | |
| evidentiary content” of the case the accused had to meet. Nothing of that sort arises on | |
| this appeal. | |
| 53․ | Appeal Ground B therefore fails. |
Ground C
| 54․ | Under this ground of appeal, the appellant complains that the Magistrate engaged in tendency and coincidence reasoning despite no evidence being admitted pursuant to ss 97 and 98 of the Evidence Act 2011 (ACT). |
| 55․ | Section 97 of the Evidence Act 2011 (ACT) states: |
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a
tendency (whether because of the person’s character or otherwise) to act in a
particular way, or to have a particular state of mind unless –
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the
evidence; and
(b)
the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
| 56․ | Tendency evidence “means evidence of a kind mentioned in section 97(1) that a party |
| seeks to present for the purpose mentioned in that subsection”. | |
| 57․ | Section 98 of the Evidence Act 2011 (ACT) states: |
98 The coincidence rule
(1) Evidence that 2 or more events happed is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which
they happed, it is improbably that the events happed coincidentally unless –
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the
evidence; and
(b)
the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
| 58․ | Coincidence evidence “means evidence of a kind mentioned in section 98 (1) that a |
| party seeks to present for the purpose mentioned in that subsection”. | |
| 59․ | At the hearing in the Magistrates Court, the prosecution specifically disavowed reliance on tendency evidence and no tendency or coincidence notice had ever been served on the appellant. |
| 60․ | It is not surprising, therefore, that nowhere in the Magistrate’s judgment does he |
| specifically engage in tendency or coincidence reasoning. The complaint is more that the Magistrate engaged in such reasoning without realising that he had done so. | |
| 61․ | The first and most obvious thing to understand under this ground is that the Magistrate did not find the appellant guilty on all the theft charges before him. Had his Honour done what is complained of under this ground, it is highly likely that the Magistrate would have found that the appellant was acting dishonestly in relation to all charges before him. After all, a number of the charges on which the appellant was found guilty concerned transactions performed by the appellant whereby club funds were used to pay for the lease on his private motor vehicle. Proof that the appellant thereby acted dishonestly in relation to those transactions is overwhelming and indeed, the finding of guilt on those transactions is not challenged by the appellant under appeal Ground D and the appellant concedes that these charges are not affected by the purported error raised under the present ground. The fact that the appellant was not found guilty on all the other charges relating to other transactions he performed, and was acquitted on all of the cash withdrawal charges, strongly suggests that the Magistrate did what he was required to do, namely consider each count individually without taking into account any tendency on the part of the appellant to act in a particular way or to have a particular state of mind and without taking into account the improbability of two or more similar events occurring proving that the appellant did a particular act or had a particular state of mind. |
| 62․ | It must be remembered that in the absence of any relevant admissions from the appellant regarding the issues in dispute at the hearing, the case against the appellant was a circumstantial one. Thus, in deciding whether any individual charge was proved, the Magistrate was required to look at all the evidence to see whether, on any particular charge, the prosecution had excluded the reasonable possibility that the appellant engaged in the transactions not for his advantage but for legitimate club expenses. |
| 63․ | The appellant refers to some specific examples of the Magistrate’s language as, in his |
| submission, demonstrating use of tendency and coincidence reasoning. The first is the | |
| use of the word “routinely”, used at [38] of his Honour’s judgment, in the sentence “it | |
| beggars belief that he, as an experienced businessman, would routinely first use his | |
| own funds to pay legitimate club expenses and then separately obtain reimbursement”. | |
| 64․ | The Magistrate was entitled to consider the way the appellant operated the club’s |
| finances in determining whether his dishonesty had been proved on any individual charge. His Honour was doing no more than recording the unusual way in which that was done as part of his consideration of all the evidence in the matter before him. What his Honour was not doing was making a finding that because the appellant had acted dishonestly in relation to club funds on one occasion, he was more likely to have done so on another occasion. | |
| 65․ | The next example is concerned with the Magistrate’s consideration of payments made |
| to Telstra. There was evidence that the relevant payments were in addition to separate monthly payments to Telstra of $100, that being the amount the club spent each month on Telstra. The appellant raised the possibility that the other Telstra payments may have been made to pay off arrears. As part of his consideration of whether that | |
| possibility was a real one, the Magistrate said at [50]: “it defies logic that the defendant, | |
| as the sophisticated and experienced businessman he was, would attend to such | |
| arrears in such an ad hoc and piecemeal fashion”. | |
| 66․ | Once again this is not tendency or coincidence reasoning. The Magistrate was entitled to look at all the transactions involving Telstra, note the ad hoc and piecemeal way in which the supposed arrears were being dealt with, and conclude that any individual charge involving one of those Telstra payments was made out. |
| 67․ | The third example related to the Magistrate’s consideration of the possibility that people other than the appellant used the appellant’s club debit card. It is necessary to set this |
| extract out in full. His Honour stated at [24]: |
There was evidence from Mr Tarnawskj that other club members had used the club debit card issued to the defendant. That evidence was vague and incomplete and went only as far
as saying ‘Yes. I remember some occasions like that, but usually it was just a tap and go.’
There was also evidence from a number of witnesses that occasionally on game days club members would purchase essential football or canteen supplies. I understood Mr
Tarnawskj’s evidence to be said in that context. The charges relating 5 to the debit card
involve transactions with the ACT Road User Service, Telstra, Hoyts, a pet store and a dart shop. I find it inherently implausible that the card issued to the defendant, was borrowed by unknown others on game days to pay fines or taxes at the ACT Road User Service, or purchase goods or services from Telstra, Hoyts, a pet store or a retail dart shop. In any event there is no evidence of that and there is evidence that the defendant had online access to the accounts, and was therefore in a position to monitor those transactions. I also note that on each occasion the card was not used on the weekend.
| 68․ | Once again, in considering the possibility that someone else had used the appellant’s |
| debit card, the Magistrate was entitled to look at all the transactions involving that card. In the passage the subject of this specific complaint by the appellant, the Magistrate was dealing with the proposition that it was possible that a specific charge involving use of the debit card, for example a charge related to a payment to ACT Road User Service, was not made out because of the possibility that someone else had used | |
| the appellant’s debit card to make that payment. In that context, his Honour was entitled | |
| to look at what the payment was for, when it was made, and that the appellant was in a position to have noticed the transaction. The fact that these considerations arose in a number of transactions, and that his Honour dealt with them together does not mean that his Honour engaged in impermissible reasoning. | |
| 69․ | In his written submissions, the appellant examines a particular charge, charge 4920, which he said is a typical example of the charges faced by the appellant, and asks rhetorically, how could guilt be established without coincidence or tendency reasoning? |
| 70․ | Charge 4920 related to a transaction whereby the appellant transferred $500 from the |
| club’s bank account to his personal bank account on 11 December 2017. Mr Chen | |
| submits that “without coincidence reasoning, it was not open to the learned Magistrate | |
| to find that individual transaction could not have been a genuine reimbursement for | |
| goods and services the appellant purchased for the club using his own funds”. | |
| 71․ | Coincidence or tendency reasoning is not necessary in order to be satisfied beyond reasonable doubt that this payment was not a transaction which the appellant did to reimburse himself for spending his own money on something he had bought for the club. Firstly, it would be unusual for the purchase to be for precisely $500. Secondly, there is no evidence of anything being bought for the club for that amount and at around that time. Thirdly, if it was a legitimate reimbursement, one might have expected the appellant to have recorded what he was being reimbursed for, but there was no evidence of any such recording. The appellant says there is no onus on him to prove his innocence which is true, but the Magistrate was entitled to make his decision on all the evidence which had been put before him. The fact remained that there was no evidence, documentary or oral, to suggest the legitimacy of the transaction which the |
| appellant performed. Finally, on this point, the appellant refers to “the large body of relevant untendered evidence”. I will refer to this later, but there is simply no justification | |
| for suggesting that there was or is in existence such material. | |
| 72․ | As part of a more general complaint under this ground, the appellant relies on a decision from the Supreme Court of Victoria, Kartawidjaja v Rowe [2016] VSC 176, particularly at [59]-[61]. In that case, Forrest J found that it was not apparent that the Magistrate had given individual consideration to individual charges. That case concerned the particular reasons given by the Magistrate in the Victorian Magistrates Court. In the present case, because of the commonality of issues regarding many of the charges, findings by his Honour and analysis of submissions made by the appellant as to possibilities inconsistent with guilt, were of application to a number of the charges his Honour had to decide. His Honour was entitled to recognise that his various findings applied to all charges in a particular category and to explain his reasoning accordingly. |
| 73․ | If someone is charged with a series of offences arising out of the use of a motor vehicle, |
| the judicial officer hearing the matter is entitled to say “the evidence establishes that | |
| the accused was driving the motor vehicle at all relevant times” without needing to | |
| repeat that finding for each individual charge. Giving reasons for conclusions in a global fashion, such as that, does not mean that the judicial officer has failed to give individual consideration to each individual charge. | |
| 74․ | During oral submissions under this ground, Mr Chen referred to another particular charge which he said demonstrated that the Magistrate must have used coincidence reasoning in finding dishonesty on the part of the appellant. That was charge 4922 |
| which related to electronic funds transfers from the club’s account to the appellant’s | |
| account for “towing”. Mr Chen’s submission was that there was no specific evidence | |
| of dishonesty in relation to that charge, so to find the appellant guilty, the Magistrate must have resorted to coincidence reasoning. | |
| 75․ | The evidence (T:331-332) made clear that the towing charge related to a vehicle which had been purchased by a Mr Tarnawaskwj and the appellant together with the intention that they would convert it into a food van so that those attending football matches could |
| get some refreshments. The vehicle had to be towed to Mr Tarnawaskwj’s home so it | |
| could be worked on. | |
| 76․ | Importantly however, the evidence was clear that the food van was not the property of the club and the operation of it was to be in a business venture between Mr Tarnawaskwj and the appellant. The evidence of Mr Tarnawaskwj was that he never wanted to be reimbursed by the club for the money he had spent on the business venture because the food van was never going to be the property of the club. |
| 77․ | The Magistrate was clearly entitled to find, in such circumstances, that charge 4922 was proved beyond reasonable doubt without any need to resort to coincidence or tendency reasoning. The example used by Mr Chen does not support his submission that the only way the Magistrate could have found the appellant guilty on many of the charges was if impermissible reasoning had been used. |
| 78․ | As part of his complaint under this ground, Mr Chen referred to the brevity of the |
| Magistrate’s judgment. Brevity is not something to criticise. As Refshauge J said in | |
| O’Connell v McMennemin [2014] ACTSC 112 at [77], “... reasons for judgment, | |
| especially in a summary jurisdiction do not need to be elaborate or lengthy…”. | |
| 79․ | Finally, Mr Chen referred me to R v Tahana [2019] ACTSC 54 as a decision where in a case with many similarities to the present, the prosecution sought to rely on tendency and coincidence evidence. Justice Loukas-Karlsson, with some exceptions, ruled that a number of events were admissible as both tendency and coincidence evidence. That case is of no assistance to me in deciding whether, in the present case, the Magistrate relied on tendency and coincidence reasoning. |
| 80․ | Appeal Ground C therefore fails. |
Ground D
| 81․ | Before examining the evidence, I should make some preliminary remarks concerning |
| the task of a judge when dealing with the ground of appeal that findings of guilt “are unreasonable and cannot be supported by the evidence”. | |
| 82․ | The appellant referred to McFarlane v Van Eyle [2022] ACTCA 68 and suggested that there is some ambiguity as to the appropriate test to be applied. I gratefully adopt the analysis of Baker J in Ji v Stone [2023] ACTSC 54 at [152]-[153], in which her Honour observed: |
152. Rather, I understand McCallum CJ’s “doubt” in McFarlane to relate to the issue that is discussed in Kennett J’s concurring decision. That is, the question is not whether an appeal
under s 214 can succeed by establishing that the verdict is ‘unreasonable’ (clearly it can),
but whether an appellant can also succeed by “satisfying the [appellate] judge that the
magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s
guilt”: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298; 106 NSWLR
430 at [91] (Basten JA and McCallum JA, as her Honour then was).
153. In most cases, there may be little difference in practical outcomes between the two formulations (at least where the appeal does not concern review of a jury verdict). At the risk
of oversimplification, both formulations require the Court to undertake an “independent” or
“real review” of the evidence in the trial: Dansie v The Queen [2022] HCA 25; 96 ALJR 728
at [9]; Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] and [25] and Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551. Both formulations also recognise that, in conducting a
‘rehearing’, the appellate court is not in the same position as the judge at first instance and
“must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate
court proceeding wholly or substantially on the record”: Fox v Percy at [23]. These limitations
will include:
… the disadvantage that the appellate court has when compared with the trial judge
in respect of the evaluation of witnesses' credibility and of the ‘feeling’ of a case which
an appellate court, reading the transcript, cannot always fully share (Fox at [23]).
See similarly Dansie at [9].
| 83․ | Accordingly, I will perform my own assessment of the evidence in deciding whether I am satisfied that the guilt of the appellant has been proved beyond reasonable doubt on those charges the subject of this ground of appeal. |
| 84․ | Throughout his submissions under this ground, both oral and in writing, the appellant submitted that there was in existence a significant amount of potentially exculpatory material that was never tendered. This submission is based on some evidence given by the officer in charge towards the end of the hearing in the Magistrates Court (at T:416). He gave evidence that he had been given a folder, presumably coming from |
| the football club, that had “a lot of loose receipts in it”. He did not recall the exact number | |
| of receipts but did recall that they “related mostly to service stations”, specifically “to | |
| purchases of cigarettes and fruit items from the service station”. | |
| 85․ | It is apparent that Mr Chen’s instructions contained nothing to suggest the relevance or |
| importance of those receipts. After that evidence was given, he said “I’ll move on. That’s not a very important point, considering the time”. Nor did he call for the production of | |
| the folder with loose receipts in it. There was no evidence to suggest that fruit or cigarettes would be purchased from service stations for club use. I will bear those circumstances in mind when I consider the submissions of Mr Chen which refer to that | |
| folder of receipts as being “potentially exculpatory material that was never tendered”. |
The lease payments to Macquarie Bank
| 86․ | The appellant makes it clear that under this ground he does not challenge his |
| convictions on those charges relating to payments made by him from the club’s | |
| accounts to Macquarie Bank as lease payments for his private motor vehicle. That concession is appropriate. There is no reasonable possibility that the transfers were done by anyone other than the appellant. There was no evidence that the club had or would have authorised such payments and it is obvious that, in such circumstances, | |
| the appellant’s actions were dishonest to the standard of ordinary people and that he | |
| knew that to be the case. |
The electronic transfers – no recorded reason
| 87․ | The electronic transfers can be divided into two categories; those where the appellant has recorded a purported reason for the transfer and those where he has not. |
| 88․ | Charge 4920 has already been dealt with in the context of the submissions under Ground C. I explained there why, even in the absence of coincidence or tendency evidence, the Magistrate could have been satisfied beyond reasonable doubt that this payment was not a transaction which the appellant did to reimburse himself for spending his own money on something he had bought for the club. Of course, under this ground, it is not enough to find that the Magistrate could have been satisfied beyond |
| reasonable doubt the appellant’s guilt on that charge. Instead, it is necessary for me to | |
| be satisfied, after my own assessment of the evidence, that the appellant’s guilt has | |
| been satisfied beyond reasonable doubt. | |
| 89․ | For the reasons I gave earlier, I am satisfied to that standard. |
| 90․ | Similar considerations apply to all of the electronic transfers where the appellant has failed to indicate a reason for the transfer. That is not to consider the question of the |
| appellant’s guilt on those charges in a global fashion, but it is to say that when the | |
| charges are individually considered, the evidence in relation to each charge demonstrates similar features, namely the transfer was for a round figure, there is no evidence of anything being bought for the club for the relevant amount at around the time of the transfer and if it was a legitimate reimbursement, one might have expected the appellant to have recorded what he was being reimbursed for. | |
| 91․ | I will elaborate on that last feature. It is difficult to understand why, if the transfer were a genuine reimbursement for monies paid by the appellant personally, the appellant would not have recorded in some way what he had spent his money on. On the other hand, there is a clear explanation for why he would not do so if the transfer was not a legitimate one: providing an explanation for any transfer makes it easier for the legitimacy of the transfer to be investigated. |
| 92․ | I am satisfied beyond reasonable doubt that the appellant was responsible for each of those transactions which were dishonest according to the standards of ordinary people, the appellant knowing that to be the case. |
| 93․ | Accordingly, I am satisfied of the appellant’s guilt on all charges concerning electronic funds transfer where they are described as “Linked Acc Trns”. |
The electronic transfers where a reason for the transfer is recorded.
| 94․ | I have already discussed charge 4922 under Ground C. It seemed to have been |
| accepted by Mr Chen that the transfer of $450 on 12 November 2017 for “towing” | |
| related to the vehicle which the appellant and Mr Tarnawaskwj were going to convert into a food truck, this being a private venture between the two of them. The evidence was all one way; the food truck business was one which the two of them were going to develop together and which, while it may have been used at club games, was not for club purposes. Further, if it really were for club purposes, it is hard to understand why | |
| the payment would not have been made directly from the club’s accounts rather than being made from the appellant’s account with reimbursement being then required. | |
| 95․ | I am satisfied beyond reasonable doubt that the appellant was responsible for that transaction which was dishonest according to the standards of ordinary people, the appellant knowing that to be the case. |
| 96․ | Charge 4917 relates to $100 transfer described as “Test 2”. Neither the appellant nor |
| the respondent made specific reference to this charge in submissions to me. Perhaps | |
| the most likely explanation for the description “Test 2” is that this was the second attempt by the appellant to test whether he could transfer money from the club’s bank | |
| account to his. If so, it is notable that there is no entry whereby the appellant transfers | |
| $100 back from his account to the club’s, indeed there is no such entry for any amount | |
| at any time. | |
| 97․ | It is possible to speculate on other reasons for the transaction, but I cannot think of any legitimate reason for that transaction, and none was suggested as a possibility by Mr Chen. It has features in common with the electronic transfers where no recorded reason was stated, especially the difficulty that anyone investigating the transaction would have in identifying what it was for. Once again, if $100 was being spent for club purposes, it is hard to understand why the payment would not have been made directly |
| from the club’s accounts rather than being made from the appellant’s account with | |
| reimbursement being then required. | |
| 98․ | I am satisfied beyond reasonable doubt of the appellant’s guilt on this charge. |
| 99․ | Charge 4932 relates to a transfer for $250 described as “Office 365”. Mr Chen |
| submitted that there is evidence that the club used Microsoft products, although that | |
| evidence suggested that the “Microsoft OneDrive account” was that of the witness he | |
| was cross-examining, Ms Ferguson, rather than the club’s. Nevertheless, it would not | |
| be surprising to learn that the club used Office 365 and that payment was required. |
100․ Even so, this is another transaction where it would have made more sense for the appellant to pay Microsoft directly from club accounts rather than use his own money and then need to reimburse himself. That is even more the case when, if this was a legitimate transaction, the software which is being paid for would be on a club computer with, presumably, access to the club bank accounts.
| 101․ | I am satisfied beyond reasonable doubt of the appellant’s guilt on this charge. |
| 102․ | Charge 4934 relates to a transfer of $450 for “Tif samples”. There was evidence at the |
| hearing that this was a reference to the club’s uniform supplier “This is Football” (T:289). | |
| Certainly, the purchase of uniforms was a legitimate club expense. However, unlike | |
| many of the purchases the subject of a charge, there was evidence as to how “This is Football” was paid. That evidence was “so we could either do an Internet transfer or raise a bank cheque depending on the amount that we were paying” (T:289.8). I | |
| understand that evidence to suggest that the internet transfer would be from the club’s | |
| bank account and that where the amount to be paid exceeded the transaction limit, payment would be made by a bank cheque. |
103․ Given that evidence, it makes no sense for the appellant to have paid any money to
“This is Football” from his own bank account and then to obtain reimbursement by
transferring money from the club’s account to his.
| 104․ | I am satisfied beyond reasonable doubt of the appellant’s guilt on this charge. |
| 105․ | Charge 4978 relates to a transfer on 4 May 2018 described as “defender deposit”. The |
| club did purchase an all-terrain vehicle described as a MY18 Defender on 29 May 2018. The relevant invoice is exhibit P 32. | |
| 106․ | The invoice is instructive. It sets out the price of the vehicle together with accessories, dealer delivery, an administration fee, and stamp duty. The price is reduced by a |
| “dealer discount”. Importantly however, there is no reference at all in that invoice, | |
| prepared more than three weeks after the electronic funds transfer, to a deposit having been paid. | |
| 107․ | I am satisfied beyond reasonable doubt that the appellant did not pay a deposit of $750 to the Canberra motorcycle centre for the ATV purchased by the club. |
| 108․ | Thus, the transfer on 4 May 2018 was not the appellant reimbursing himself for money he had paid from his own funds on behalf of the club. |
109․ I am satisfied beyond reasonable doubt that the appellant was responsible for that transaction which was dishonest according to the standards of ordinary people, the appellant knowing that to be the case. Accordingly, I am satisfied that he is guilty on that charge.
| 110․ | A number of the charges, five in fact, relate to transactions which have the reference |
| “Bunnings” or “bunnings”. They are for significant amounts of $350, $750, $500, $750, | |
| and $500. $2850 is a lot of money to spend at Bunnings in a period of approximately three months. There was evidence from one of the club officials that she could not recall that there would be significant equipment that would need to be purchased from Bunnings every month (T:74). There was one large purchase from Bunnings, a | |
| pressure washer, for “around $700” (T:323.5) which was approved by club officials | |
| (T:312) but the evidence was that there was otherwise a very limited amount of expenditure to Bunnings for things such as a step ladder or a tarpaulin (T:74). | |
| 111․ | Once again, it is notable that the transfers are for round figures. It would be remarkable if any single purchase at Bunnings, especially of multiple items such as a step ladder or tarpaulin, totalled such a round figure. |
112․ The appellant’s transactions at Bunnings can be contrasted with that of another club
member, Mr Keane. Exhibit P3 shows that he made purchases at Bunnings using his
club debit card for the amounts of $244.60 and $26.60.
| 113․ | A similar thing could be said about other transactions on the club’s debit card. Exhibit |
| P4 records the purchases made by Ms Katsoulis on her club debit card. She bought things from Bunnings using that card for $140.55, $32.30, $48.90, and $39.90. |
114․ There is no satisfactory explanation as to why the appellant’s purchases were, so the
appellant suggests, done by way of him paying Bunnings with his money and then
transferring money from the club to him by way of reimbursement.
| 115․ | I am satisfied beyond reasonable doubt that not all of the Bunnings transfers were made in respect of legitimate purchases by the appellant for equipment to be used by the club. But that is not the same thing as saying that I am satisfied beyond reasonable doubt that each particular transfer related to an illegitimate transfer of money from the club to the appellant. |
116․ To make matters clear, given that the club occasionally needed things bought from Bunnings, on at least one occasion costing around $700, I cannot be satisfied beyond reasonable doubt that every one of the Bunnings charges related to an illegitimate transfer, even though I am satisfied beyond reasonable doubt that not all of the Bunnings transfers were legitimate.
| 117․ | It is not reasonably possible that all of the five Bunnings charges relate to a legitimate transfer, but it is reasonably possible that out of the five Bunnings charges, one relates to a legitimate transfer. |
| 118․ | Of course, it is not enough for the prosecution to prove beyond reasonable doubt that some of the Bunnings charges relate to illegitimate transfers. I must examine each charge individually and before I can find the appellant guilty on any individual charge, be satisfied beyond reasonable doubt of his guilt on that particular charge. |
| 119․ | The appellant must therefore be acquitted on all the Bunnings charges. |
120․ I can deal with the remainder of the charges concerning electronic transfers where a reason for the transfer is recorded together. What I am about to say concerns the
transfers for “Rego”, “Marketing Stickers”, “Canteen”, Equipment Deposit”, “Sponsor”,
“Asic”, “Costco”, and “Capital Football”.
121․ In the charges where I have found the evidence satisfied me of the appellant’s guilt,
that was because there was particular evidence on which the prosecution was entitled
to rely concerning the legitimacy of the transaction.
122․ Having considered the evidence concerning the remaining charges in this category, they did not have any particular feature pointing to the appellant’s guilt. Certainly, there
remain the general considerations that the amounts are for round figures, and it is
difficult to understand why the appellant would not have simply paid the club’s expenses
from the club’s accounts directly, but the descriptions for each of the transactions do
raise the possibility of legitimacy with nothing specific that the prosecution can point to
which would suggest the contrary.
| 123․ | I have no doubt that not all of the transactions in this category represented legitimate reimbursements, but I am unable to point to any particular transaction and say that I am satisfied beyond reasonable doubt that that particular transaction was not a legitimate reimbursement. |
124․ Suspicion, even grave suspicion, is no substitute for proof beyond reasonable doubt. Despite my grave suspicions, I am not satisfied beyond reasonable doubt that the appellant is guilty on those charges. Even making due allowance for the advantages enjoyed by the Magistrate, I have reached the conclusion that it was an error to find the appellant guilty on those charges.
The debit card charges
125․ The appellant faced 10 charges relating to his use of the club’s debit card which had
been given to him to buy things for the club. The Magistrate found him guilty on nine of
those.
| 126․ | On the appeal, Mr Chen raise the possibility that on occasions the appellant would pay | |
| for a personal purchase with the club’s debit card by mistake. There was evidence that the accused’s credit card and the club’s debit card looked similar (T:306). There is one | ||
| matter however which satisfies me that Mr Chen’s suggestion should not be accepted. | ||
| That is, there is not a single instance of the appellant transferring money from his | ||
| account to the club’s account, which of course he would have done had he inadvertently conducted a personal transaction on the club’s debit card. | ||
| 127․ | Charges for 4906, 4910, and 4915 relate to the use of the debit card to pay a Telstra | |
| bill. I have ordinary dealt with those charges when examining the appellant’s arguments | ||
| under appeal Ground C and there is little more that I need to say. The evidence | ||
| established that those payments could not have been for the club’s regular Telstra bill, | ||
| which was $100 per month (T:49) and the varying amounts suggest that the payments relate to a particular Telstra bill, rather than paying off some arrears that the club owed to Telstra, there being no evidence of such arrears at all. | ||
| 128․ | I am satisfied of the accused’s guilt on each of those charges. | |
| 129․ | Charges 4912, 4913, and 4914 relate to debit card transactions with “ACT Road User Service DICKSON”. | |
| 130․ | The appellant was found guilty on those three charges and the Magistrate said this at | |
|
I take judicial notice that payments to the ACT Road User Service involve the payment of motor vehicle related taxes, fees or fines. It was clear from the evidence that the club did not run or operate a registerable motor vehicle. It is also clear that the payment of personal taxes, fees or fines would not be legitimate club expenses.
| 131․ | Neither the appellant nor the respondent addressed these specific transactions in their submissions. All that I really need to say about those charges is that I find the |
| Magistrate’s reasoning compelling and having reviewed the evidence for myself, I am satisfied beyond reasonable doubt of the appellant’s guilt on those three charges. |
132․ The remaining charges relating to the use of the debit card involve purchases at Just Jeans, a pet store, and Hoyts.
| 133․ | There was evidence that the club would occasionally give out “movie theatre cards” as |
| raffle prizes (T:321). Although, one might have expected a gift card to be in round figures, there was no evidence to suggest that it was not possible to buy a gift of movie tickets totalling $39. | |
| 134․ | As well as raffle prizes, there were other events where prizes were given to members of the club (T:145). The club held trivia nights as well (T:223). In the absence of evidence that prizes at such events did not include things from Just Jeans or a pet store, it remains a reasonable possibility that the charges relating to use of the debit card on those occasions were for a legitimate purpose for the club. |
135․ Accordingly, I am not satisfied that the prosecution proved the appellant’s guilt on
charges 4905, 4907, and 4911.
| 136․ | The appellant has succeeded in part on appeal Ground D. |
Ground E
137․ I gave leave to the appellant to amend his notice of appeal by the addition of this
ground.
| 138․ | In his judgment, the Magistrate said this at [37]-[38]: |
There was evidence that the club, at times, reimbursed members for legitimate club expenses paid by members from their own funds. That could have involved transferring funds
from the club’s main account to a member’s account. There was also evidence that the club
debit cards had $500 limits, and that such limits would therefore limit the use of those debit
cards for purchases above $500.
Not only did the defendant have available for his immediate use a club debit card, with a
$500 limit, he also had sole access to the club’s main account using online banking. It
beggars belief that he, as an experienced businessman, would routinely first use his own funds to pay legitimate club expenses and then separately obtain reimbursement. That approach would limit comprehensive record keeping and possibly double the work required of the defendant when making such payments. It would also have involved the defendant using his own money, rather than the available club funds. Additionally, many of the amounts are the same in value and most are very simple numbers. For example, there are no detailed amounts precise down to the dollar or cent, and many amounts are multiples of $100 and most are multiples of $50.
| 139․ | It is argued by the appellant and conceded by the respondent, that the Magistrate was wrong in saying that there was evidence that the club debit cards had $500 limits. |
| 140․ | Mr Chen submitted that the evidence showed that the limit on the appellant’s debit card |
| was $200. He relied on various bank statements of the clubs in making that submission. | |
| Exhibit P2 states the following: “Cardholder Limit: $200”. |
141․ However, the respondent pointed out that there were many entries in that bank statement showing that payments had been made on the debit card in excess of $200. For example, on 4 June 2018 it had been used to pay $419 to QBE insurance, and two payments to ACT Road User Service DICKSON, one for $313 and the other for $303. Further, the respondent referred me to exhibit P3 which is another bank statement showing the transactions done by Mr Keane on his club debit card. There, we see
“Cardholder Limit: $0” yet he was able to use his debit card to make purchases. The
same can be said about exhibit P4 which concerns the debit card used by Ms Katsoulis.
142․ It remains the case the Magistrate made a factual error. The issue becomes what
follows.
| 143․ | Section 218 Magistrates Court Act 1930 (ACT) sets out the orders that I can make on an appeal under s 208 as follows: |
218 Orders by Supreme Court on appeals
(1) On an appeal to which this division applies, the Supreme Court may –
(a)
confirm, reserve or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)
give the judgment, or make the order, that, in all circumstances, it considers appropriate, or refuse to make an order; or
(c)
set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in party, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate
(2) A judgment or order of the Supreme Court under subsection (1)(a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
144․ Although the Magistrate made an error, having conducted my own analysis of the evidence on the understanding of that error having been made, I have nevertheless found that the evidence establishes the guilt of the accused on those charges I have referred to above. In coming to that conclusion, I will have in no way been influenced by the incorrect suggestion that club debit cards had $500 limits.
| 145․ | Section 218 was examined in Laipato v Truman [2017] ACTSC 351. There, Mossop J said at [72]: |
Counsel for the appellant accepted that the terms of s 218 of the Magistrates Court Act 1930 (ACT) incorporated or accommodated the proviso that an appeal would not be allowed in a criminal matter where it was shown that no miscarriage of justice occurred. Counsel for the respondent agreed. In the light of the approach taken by the parties it is sufficient to say that this agreed approach is consistent with the reasoning of the High Court in Stokes v The Queen (1960) 105 CLR 279 at 284-285 and Conway v The Queen (2002) 209 CLR 203 at
[4]–[39]. In the present case notwithstanding that her Honour may have wrongly ruled or
provided incorrect guidance to the unrepresented accused, by reason of the evidence that was given and the absence of any evidence or other explanation as to the subject matter or
content of any possible additional cross‑examination by the appellant, there was no
miscarriage of justice and hence the appeal should be dismissed.
146․ Accordingly, the appellant’s success in demonstrating that the Magistrate made a factual error does not entitle the appellant to be acquitted on all charges on this appeal in circumstances where I, having not made the same error, have come to my own
independent conclusion that the evidence demonstrated the accused’s guilt on some
charges beyond reasonable doubt.
147․ Appeal Ground E therefore fails.
Orders
148․ I make the following orders.
1. The appeal is allowed in part.
2. The convictions on charges 4905, 4907, 4911, 4942, 4946, 4948, 4949, 4950, 4952,
4954, 4960, 4966, 4972, 4973, 4974, 4977 and 4979 are quashed.3. The convictions on charges 4887, 4895, 4896, 4897, 4898, 4899, 4900, 4901, 4902, 4906, 4910, 4912, 4913, 4914, 4915, 4917, 4920, 4922, 4925, 4926, 4927, 4928, 4929, 4930, 4932, 4934, 4935, 4938, 4939, 4940, 4943, 4945, 4962, 4964, 4965, 4968, 4970, 4975, 4976, 4978, 4981, 4982, 4986, 4987, 4988, 4989, 4990 and 4991 are confirmed.
4. The acquittals on charges 4908, 4996, 4997, 4999 and 5000 are confirmed.
149․ The matter should now be relisted before the Magistrate for the appellant to be
sentenced.
150․ Attached to this judgment is a table setting out the charges, the results in the Magistrates Court and the results on appeal.
I certify that the preceding one hundred and fifty [150] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.
Associate:
Date:
Schedule
| Charge | Date | Amount | Description | Recipient | Finding | Finding on |
Appeal
Macquarie leasing transactions
| 4887 | 11/12/2017 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4895 | 15/12/2017 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4896 | 15/01/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4897 | 15/02/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4898 | 15/03/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4899 | 16/04/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4900 | 15/05/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4901 | 15/06/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
| 4902 | 16/07/2018 | $914.85 | Internet BPAY | Macquarie Leasing | Guilty | Guilty |
Debit card transactions
| 4905 | 04/01/2018 | $41.97 | Debit card | Just Jeans | Guilty | Not guilty |
| transaction | Belconnen | |||||
| 4906 | 09/03/2018 | $398.14 | Debit card | Telstra Bill Paymnt | Guilty | Guilty |
transaction Melbourne
| 4907 | 12/03/2018 | $170.10 | Debit card | Bstfrnds Gungahlin | Guilty | Not guilty |
transaction Gungahlin
| 4908 | 28/03/2018 | $324.43 | Debit card | Deadeye Darts | Not | - |
transaction Ourimbah guilty
| 4910 | 10/05/2018 | $571.95 | Debit card | Telstra Bill Paymnt | Guilty | Guilty |
transaction Melbourne
| 4911 | 23/01/2018 | $39.00 | Debit card | HOYTS Sydney | Guilty | Not guilty |
| transaction | ||||||
| 4912 | 04/06/2018 | $303.00 | Debit card | ACT Road User | Guilty | Guilty |
| transaction | Service DICKSON | |||||
| 4913 | 04/06/2018 | $313.00 | Debit card | ACT Road User | Guilty | Guilty |
| transaction | Service DICKSON | |||||
| 4914 | 04/06/2018 | $148.00 | Debit card | ACT Road User | Guilty | Guilty |
| transaction | Service DICKSON | |||||
| 4917 | 05/12/2017 | $100.00 | Transfer | Test 2 | Guilty | Guilty |
| 4920 | 11/12/2017 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4922 | 12/12/2017 | $450.00 | Transfer | Towing | Guilty | Guilty |
| 4925 | 14/12/2017 | $200.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4926 | 27/12/2017 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4927 | 27/12/2017 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4928 | 02/01/2018 | $100.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4929 | 02/01/2018 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4930 | 02/01/2018 | $600.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4932 | 08/01/2018 | $250.00 | Transfer | Office 365 | Guilty | Guilty |
| 4934 | 15/01/2018 | $450.00 | Transfer | Tif samples | Guilty | Guilty |
| 4935 | 16/01/2018 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4938 | 29/01/2018 | $375.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4939 | 05/02/2018 | $450.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4940 | 06/02/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4942 | 09/02/2018 | $350.00 | Transfer | bunnings | Guilty | Not guilty |
| 4943 | 12/02/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4945 | 19/02/2018 | $350.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4946 | 20/02/2018 | $1,100.00 | Transfer | Rego | Guilty | Not guilty |
| 4948 | 27/02/2018 | $500.00 | Transfer | Marketing stickers | Guilty | Not guilty |
| 4949 | 28/02/2018 | $500.00 | Transfer | Canteen | Guilty | Not guilty |
| 4950 | 28/02/2018 | $500.00 | Transfer | Equipment deposit | Guilty | Not guilty |
| 4952 | 07/03/2018 | $500.00 | Transfer | Managers deposit | Guilty | Not guilty |
| 4954 | 12/03/2018 | $750.00 | Transfer | Bunnings | Guilty | Not guilty |
| 4960 | 26/03/2018 | $300.00 | Transfer | Sponsor | Guilty | Not guilty |
| 4962 | 28/03/2018 | $750.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4964 | 29/03/2018 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4965 | 03/04/2018 | $450.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4966 | 03/04/2018 | $500.00 | Transfer | bunnings | Guilty | Not guilty |
| 4968 | 09/04/2018 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4970 | 11/04/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4972 | 13/04/2018 | $550.00 | Transfer | Asic | Guilty | Not guilty |
| 4973 | 16/04/2018 | $250.00 | Transfer | Costco | Guilty | Not guilty |
| 4974 | 18/04/2018 | $250.00 | Transfer | Capital Football | Guilty | Not guilty |
| 4975 | 23/04/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4976 | 24/04/2018 | $500.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4977 | 30/04/2018 | $750.00 | Transfer | Bunnings | Guilty | Not guilty |
| 4978 | 04/05/2018 | $750.00 | Transfer | Defender Deposit | Guilty | Guilty |
| 4979 | 08/05/2018 | $500.00 | Transfer | Bunnings | Guilty | Not guilty |
| 4981 | 14/05/2018 | $450.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4982 | 15/05/2018 | $750.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4986 | 28/05/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4987 | 01/06/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4988 | 05/06/2018 | $300.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4989 | 08/06/2018 | $450.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4990 | 14/06/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| 4991 | 18/06/2018 | $250.00 | Transfer | Linked Acc Trns | Guilty | Guilty |
| Cash withdrawals |
| 4996 | 01/02/2018 | $3,500.00 | Cash | Not | - |
withdrawals guilty
| 4997 | 14/02/2018 | $3,500.00 | Cash | Not | - |
withdrawals guilty
| 4999 | 23/03/2018 | $4,600.00 | Cash | Not | - |
withdrawals guilty
| 5000 | 23/03/2018 | $4,237.74 | Cash | Not | - |
withdrawals guilty
2
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