Ali v The State of Western Australia
[2005] WASCA 90
•20 MAY 2005
ALI -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 90 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:155/2004 | 13 APRIL 2005 | |
| Coram: | MALCOLM CJ WHEELER JA PULLIN JA | 20/05/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMMED ALI MUSTAFA ABDAL AZIZ ALI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against conviction Whether correct direction in relation to intent to defraud Whether verdicts inconsistent Whether direction given in accordance with Stanton's case Whether alternative charges of stealing by direction should have been left to the jury |
Legislation: | Criminal Code (WA), s 371, s 373, s 378(9), s 409 |
Case References: | MacKenzie v The Queen (1996) 190 CLR 348 Markarian v The Queen [2001] WASCA 393 Mathews v The Queen (2001) 24 WAR 438 MFA v The Queen (2002) 213 CLR 606 Parker v Taylor, unreported; FCt SCt of WA; Library No 930581; 29 October 1993 R v Chan (1989) 38 A Crim R 337 Stanton v The Queen (2003) 77 ALJR 1151 King v The Queen (1986) 161 CLR 423 Liberato v The Queen (1985) 159 CLR 507 Parker v The Queen (1997) 186 CLR 494 Parker v The Queen, unreported; FCt SCt of WA; Library No 950259; 26 May 1995 R v Tran (2000) 105 FCR 182 R v Yau Leung Wong (1988) 37 A Crim R 385 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALI -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 90 CORAM : MALCOLM CJ
- WHEELER JA
PULLIN JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HEALY DCJ
File No : IND 40 of 2002
Catchwords:
Criminal law - Application for leave to appeal against conviction - Whether correct direction in relation to intent to defraud - Whether verdicts inconsistent - Whether direction given in accordance with Stanton'scase - Whether alternative charges of stealing by direction should have been left to the jury
(Page 2)
Legislation:
Criminal Code (WA), s 371, s 373, s 378(9), s 409
Result:
Application for extension of time dismissed
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr L P Rayney & Mr L M Fox
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
MacKenzie v The Queen (1996) 190 CLR 348
Markarian v The Queen [2001] WASCA 393
Mathews v The Queen (2001) 24 WAR 438
MFA v The Queen (2002) 213 CLR 606
Parker v Taylor, unreported; FCt SCt of WA; Library No 930581; 29 October 1993
R v Chan (1989) 38 A Crim R 337
Stanton v The Queen (2003) 77 ALJR 1151
Case(s) also cited:
King v The Queen (1986) 161 CLR 423
Liberato v The Queen (1985) 159 CLR 507
Parker v The Queen (1997) 186 CLR 494
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Parker v The Queen, unreported; FCt SCt of WA; Library No 950259; 26 May 1995
R v Tran (2000) 105 FCR 182
R v Yau Leung Wong (1988) 37 A Crim R 385
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1 MALCOLM CJ: In my opinion, this application for an extension of time to make an application for leave to appeal against conviction should be dismissed for the reasons to be published by Pullin JA with which I am in complete agreement.
2 WHEELER JA: I have read in draft the reasons to be published by Pullin JA and I agree with his Honour's reasons.
3 PULLIN JA: This is an application for leave to appeal by the applicant against his conviction on 20 April 2004 in relation to five charges, one of fraud and four charges of what, in shorthand, is called stealing by direction. On the indictment there were five counts of fraud which in each case alleged that between specified dates in 1999 and 2000 the applicant "with intent to defraud by deceit or fraudulent means caused a detriment to" the named complainant.
4 Section 599(1) of the Criminal Code provides that upon an indictment charging a person with an offence under s 378, s 409 or s 414, the person may be convicted of an offence under another of those sections if that other offence is established by the evidence. By virtue of this section, the alternative verdict of stealing by direction was left to the jury.
5 The jury found the applicant guilty of the first count of fraud against a complainant, Ahmed Abdi, the offence having been committed between 1 January 2000 and 15 March 2000. The jury found the applicant guilty on counts 2, 3, 4 and 5 of the alternative of stealing by direction in relation to a complainant, Said Padshah Sadat, between 1 January 2000 and 23 February 2000; in relation to Sayed Aboobaker Rahi, between 1 December 1999 and 24 January 2000; in respect of Birol Demirkol, between 1 December 1999 and 2 March 2000; and concerning Haftu Tareke Desalegn, between 1 October 1999 and 31 January 2000.
6 The counts in the indictment alleging fraud were offences pursuant to s 409(1)(d) which reads:
"Any person who, with intent to defraud, by deceit or any fraudulent means … causes a detriment, pecuniary or otherwise, to any person; … is guilty of a crime ..."
7 The alternative counts of stealing by direction are offences by reason of s 371, s 373 and s 378(9) of the Criminal Code.
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8 Section 371 of the Criminal Code defines stealing in the following terms:
"A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that property."
9 Section 378(9) provides that:
"If the thing stolen is any of the things following, that is to say -
(b) Money received by the offender with a direction that the same should be applied to any purpose or paid to any person specified in the direction … the offender is liable to imprisonment for 10 years."
10 Section 373 provides that until the direction is complied with, the money is deemed to be the property of the person from whom it was received.
11 For the purposes of s 373, a direction may be tacit or implied and if the words or conduct unambiguously identify or make clear the purpose to which the money the subject of the direction is to be applied, that purpose will be sufficiently "specified in the direction". See Parker v Taylor, unreported; FCt SCt of WA; Library No 930581; 29 October 1993.
The facts revealed at trial
12 The applicant was born in Kuwait and came to Australia in 1989. He worked as a cleaner and later obtained a cleaning franchise under which he held contracts to clean several sites. He is a practising Muslim. The paying of interest on money borrowed is not in accordance with the applicant's religious beliefs and is only allowable when there is no other source of finance and then only to purchase necessities such as houses.
13 When the applicant wished to purchase a house he sought information as to how he could make the purchase in accordance with Muslim practices, but found that there was no business in this State which could assist him in that regard. He found there was one in the eastern states, a co-operative run by Muslims which would assist members to purchase a house according to religious principles and without the payment of interest by the member to any institution. A commercial entity is not bound by the same rules as an individual and can borrow money and pay interest, and then enter into arrangements with individuals which do not involve paying interest on the money borrowed by the
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- commercial entity. The applicant gave evidence that the co-operative would borrow money and when a person wished to buy property, that person would provide a deposit of 20 per cent to the co-operative and the co-operative would then borrow the balance from an institution. The property would be registered in the co-operative's name and the co-operative and the person would enter into a "musharaka", which is a partnership agreement whereby, over a period of years, the person would pay a fixed rent which included a margin of profit for the co-operative. The rent was structured to meet the repayments that had to be made to the bank along with a component of capital to buy out the co-operative's share in the property. Once the person had paid out the co-operative's share, the title would then be transferred into the person's name. The applicant did not avail himself of the co-operative's funding because there was a waiting list. The applicant therefore had to purchase his own house by borrowing money and paying interest because there was no other way for him to proceed.
14 As a result of this experience the applicant decided to set up a company to help his fellow Muslims on low incomes purchase homes under musharaka arrangements. The applicant had no formal qualifications in business or finance. He attended some courses run by ASIC, but he obtained no certificate of qualification and was not subject to any examinations.
15 The company he formed was called Azzumala Pty Ltd trading as Al-Aqsa. The only capital he was able to bring into the company was an amount of $30,000 and by the time he had opened an account with the Commonwealth Bank he only had $19,000 available, due to the expenses of setting up. The applicant then approached the Commonwealth Bank which approved finance for Al-Aqsa in a sum exceeding $1,000,000.
16 The arrangement with the bank was disclosed in the evidence of Mr Sheppeard, who was the Commonwealth Bank manager with whom the applicant dealt. Mr Sheppeard gave evidence that two loan facilities were granted in October 1999, one relating to commercial property and one relating to residential property. The one in relation to residential properties allowed Al-Aqsa to draw down $1,161,300. A drawdown to purchase a house was permitted by the bank on two conditions, the first being that the bank took mortgage security over the home and second being that the drawdown did not exceed 70 per cent of the value of the property. The plan was that the client would pay 20 per cent of the value of a home to Al-Aqsa and it would deposit that with the bank. The bank also provided a temporary overdraft facility, allowing Al-Aqsa to
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- overdraw to the extent of $213,000, but this was a temporary facility which had to be cleared by 14 February 2000. The applicant informed Mr Sheppeard that money was coming from overseas to clear this overdraft. By 2 December 1999 the residential loan facility had been fully drawn down.
17 On 17 February 2000 the bank wrote to Al-Aqsa in the following terms:
"We refer to your letter dated 15 February 2000 regarding overdue clearance of the above facility. In terms of the original approval, clearance was to be effected from receipt of offshore funds by 15 February 2000. Please advise whether these funds are available or your intentions for the sale of property to clear the temporary overdraft. We will require full proceeds of any sale to be applied to debt reduction until the temporary overdraft is cleared. Thereafter, sufficient proceeds to maintain a Loan to Valuation Ratio, of 70 per cent … please contact the undersigned." (See TS 1135)
18 By letter dated 8 March 2000 the applicant wrote to the bank and to Mr Sheppeard. The content of the letter was read to the jury by Mr Sheppeard who also explained some of the terms. At TS 1136 he gave this evidence:
"If I then might show you a letter headed Al-Aqsa dated 8 March, attention Brett Sheppeard:
Dear Brett, I would like to start by apologising for not being able to contact you directly in the past few days but I have been kept very busy. In relation to my O/D –
Does that term mean anything to you?---Overdraft?
I know that I have mentioned to you in the past the possibility of clearing it through funds from O/S. Unfortunately, due to the new commitments to new properties we have no option but to satisfy them.
Then there is a list of mortgage discharges requested:
We have an arrangement with a financier to satisfy the balance of the O/D.
(Page 8)
- If I might show you that letter dated 8 March. That's a letter received by you?---Yes."
19 In the applicant's evidence during cross-examination he admitted that he knew that the residential loan facility had been drawn down by 2 December 1999 and that if Al-Aqsa wanted to survive financially it had to get more finance by gaining more business or by raising additional finance. (TS 1250)
20 He also agreed in cross-examination that he had signed an authority by which the bank would be able to take money that went into the working account to pay off the loan facility.
21 The applicant as agent for Al-Aqsa entered into a dozen or so musharaka agreements in October and November 1999.
22 The five counts on the indictment relate to five transactions each involving a separate complainant. The complainants approached the applicant for assistance in relation to buying houses and were persuaded to hand over to the applicant the moneys referred to in the indictment after all of the funds from the Commonwealth Bank were fully drawn down. The transactions occurred between December 1999 and March 2000.
23 The prosecution case in relation to the five counts was that the applicant took deposits from the complainants and induced them to do so by telling them that he had the ability to finance the purchase of their properties. In relation to the alternative charge, the prosecution case was that the deposits were paid to the applicant with a direction that the money be used to assist in the purchase of a house and that when the applicant deposited the funds into the Commonwealth Bank account he knew it would be taken by the bank in reduction of the overdraft. In short, the money was deposited and applied for a purpose which was not in accordance with the complainants' direction.
24 The applicant's defence was that he did not tell the complainants that he had the ability to finance the purchase of their property although when he was dealing with the complainants he thought that he had the ability to raise money from financial institutions to enable the complainants to purchase the houses they wished.
25 There was a majority verdict in relation to count 1 that the applicant was guilty of fraud.
(Page 9)
26 In relation to counts 2, 3, 4 and 5 the jury, having found the applicant guilty, must have been satisfied to the required standard that the applicant was guilty of stealing the money that had been given to him with a direction that the money be used as a deposit on a house to be purchased. When the complainants gave the applicant money the applicant wrote out a receipt stating that the money constituted a deposit on a house. The jury must therefore have been satisfied in relation to counts 2, 3, 4 and 5 that, when the money was put into the bank, the applicant knew that the funds would be taken by the bank in reduction of the debt owing to the Commonwealth Bank because Al-Aqsa was in default in relation to the loan arrangements with the bank.
Earlier proceedings
27 The applicant was first tried by Martino DCJ and a jury in March and April 2003. He then faced 17 charges of fraud.
28 During the trial before Martino DCJ, a question arose regarding alternative verdicts. The prosecution argued that alternative verdicts of stealing were permitted by reason of s 599 of the Criminal Code in relation to 10 of the counts. The question about alternative verdicts did not arise in relation to seven of the 17 counts because settlement in relation to the purchase of homes had taken place in those cases so that it could not be said that the money had been stolen. In relation to the other ten counts however, those were all cases where a property settlement had not taken place. Martino DCJ, however, decided that he would not allow the alternative verdicts to be put to the jury. His Honour considered that this was not permissible, first, because there was no evidence upon which the jury could convict of stealing by direction and, secondly, because it would be "confusing to the jury and unfair to the accused to direct the jury on the alternative of stealing by direction when the case that was presented to the jury and particularised to the accused was that Mr Ali committed a fraud on the complainants by representing to them that their properties would be purchased by a partnership in accordance with Islamic principles and that moneys were coming from overseas." It was unfair to ask at the end of the evidence for the alternative verdicts to be considered when no notice had been given that such a request would be made.
29 At the end of this first trial the applicant was acquitted on 12 of the 17 charges. The jury could not agree on the remaining five charges and he was then retried before Healy DCJ and a jury in relation to those five charges.
(Page 10)
Grounds of appeal
Ground 3
30 The applicant's ground reads:
"The learned trial Judge made an error by allowing the alternative charges of stealing by direction to be considered by the jury in this trial despite the fact that it was put to him that the learned trial Judge in the previous trial did not allow the alternative charge to be considered for the simple fact it may confuse the jury in which it did in this case." [sic]
31 In the absence of the jury (and I am now talking about the trial before Healy DCJ) counsel for the prosecution asked that the alternative verdicts be left to the jury. Counsel for the applicant engaged in discussion with the learned trial Judge and at the end of his submissions he appeared to me to agree that it was open to the jury to find on the evidence that the alternative offence of stealing by direction had been committed. As a result, his Honour ruled that he would leave the alternative verdicts to the jury.
32 The applicant, arguing the application in person, relied heavily on the fact that in the first case Martino DCJ had decided not to leave the alternative verdicts to the jury, whereas Healy DCJ had ruled that he would leave the alternatives to the jury. The applicant, in his outline of submissions, argues that leaving the alternative might have caused confusion and that this was the reason why Martino DCJ decided not to leave the alternative verdicts in the first trial.
33 In my opinion, the changed circumstances, that is the lesser number of counts; the fact that none of the complainants in the second trial obtained possession of a house; the fact that notice had been given in writing by the prosecution to the applicant that the alternative verdicts would be sought; and the fact that counsel for the applicant said he was ready to meet such a case made it appropriate for the alternative verdicts to be left to the jury. There was no unfairness in doing so and there was no prospect of confusion as there may have been in the earlier case. In my opinion, there is no merit in this ground.
Ground 2
34 In relation to this ground the applicant takes issue with the learned trial Judge's refusal to redirect the jury about whether carelessness could amount to an intention to defraud.
(Page 11)
35 In Mathews v The Queen (2001) 24 WAR 438 the Full Court made it clear that in relation to a charge under s 409 the question of intent to defraud was to be assessed by determining the subjective intention of the accused; it is a question of what the accused intended and not what a reasonable person might have intended, and intent to defraud is not to be equated with carelessness. See also Markarian v The Queen [2001] WASCA 393.
36 His Honour, in directing the jury in relation to the s 409 offences said (TS 1332):
"What you have to consider is Mr Ali's intention, not what you might think from the circumstances; what was in his mind at the time. A reasonable man in his – you don't have to worry about what you or any reasonable man in his circumstances might have thought or done. You have to look at what his state of mind was at the time. When you consider when he took each of the deposits, have the prosecution proved to you that he did not genuinely believe he could obtain finance. If they haven't proved to you that, then he's entitled to be acquitted of the offences.
You can only convict him of these offences if you are satisfied beyond reasonable doubt that he did have an intention when he took each of the men's deposits that he was going to defraud them, knowing that when he deposited the money it would be deducted and that he had no ability to obtain finance in order for them to purchase the properties they wanted to purchase.
Mr Ali was obviously inexperienced in business. He didn't have much capital and he had no formal qualifications. If you believe that he believed he had a feasible business scheme to help these people, you may think that he was stupid, as he admits that he was naive and stupid when he was talked to by the police, but that doesn't mean that he's guilty of fraud. Fraud is a criminal offence. He has to have a criminal intention to defraud these men before you can find him to be guilty.
Naivety or stupidity don't amount to criminal offences otherwise most of us would be at some times guilty of crime, because we all do things which are stupid and which we regret later on but that doesn't make us criminals."
(Page 12)
37 Defence counsel later asked the learned trial Judge to give further directions to the jury in relation to this issue of intention. He made the following submissions (TS 1340):
"And in relation to matters of law, it's fundamental to Mr Ali's defence as to what constitutes an intention to defraud and it was emphasised in a decision of the Court of Criminal Appeal called Mathews, your Honour, that an intent to defraud is not to be equated with either carelessness or even reasonableness or unreasonableness of one's belief.
If a particular belief is held, no matter how unreasonable it may be, if it be genuinely held, or how careless that belief may be held, that's sufficient to repel any suggestion of an intention to defraud and, in my respectful submission, the jury very clearly needs to have explained to it that an intention to defraud is not to be equated with carelessness or negligence, whichever word one wishes to use, and that even if he did have in the jury's mind an unreasonable belief as to his ability to obtain funding for these properties, that is not sufficient to constitute an intention to defraud, so that's very significant from Mr Ali's point of view and in my submission the jury really needs to have that made very clear to them."
38 Counsel also referred to Markarian's case. After submissions were made by prosecution counsel, counsel for the accused made submissions in reply and said:
"… I do acknowledge your Honour did use the words as you have indicated, that naivety and stupidity is not criminalised by the law …"
39 His Honour then said that he did not intend to redirect. In his written submissions the applicant states that he relied up the submissions his counsel had made at the trial, at TS 1340 to 1341 as set out above.
40 In my opinion, the direction given by the learned trial Judge was in accordance with Mathews and Markarian. In my opinion, there is no merit in this ground.
Ground 4
41 Ground 4 reads:
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- "The learned trial Judge misdirected the jury to the point of confusion in the order in which they can consider the charges in order to reach a verdict". [sic]
42 In his oral submissions the applicant complained about what I might call the "Stanton" direction given by the learned trial Judge at TS 1335 which I set out below.
43 When the jury retired to consider the matter they had to decide whether the applicant was guilty or not guilty of the five counts in the indictment or the five alternative counts of stealing. In Stanton v The Queen (2003) 77 ALJR 1151 the High Court made it clear that the jury must not be directed by a trial Judge to consider alternative charges in any particular order; they must be free to organise their individual processes of reasoning or their discussions as a group in whatever manner appears to them to be convenient. (Stanton at [35]) As to the verdicts, however, the Judge is obliged to require the jury to give their verdict on the primary charge first and only if the verdict is not guilty is the jury to be asked for a verdict in relation to the alternative count. See Stanton at [22] to [25].
44 With these principles in mind I turn to what his Honour said in his summing up. His Honour, early in his summing up, informed the jury that it was open to them to find the applicant guilty of the alternative charges of stealing. Then at TS 1335 he said:
"If that's the case, he has stolen the money and that's the alternative offence of stealing. If you find him guilty of the principal offence of being guilty of defrauding Mr Abdi, you don't have to look at the alternative charge at all. You only have to look at the alternative charge of stealing by direction if you find him not guilty of the charge which is set out in the indictment.
I don't say that you have to go through all the fraud charges first before you look at the alternative charges. You might want to look at the alternative charges – I don't know. I mean, how you deal with the matters in the jury room is entirely your matter, but ultimately, if you find Mr Ali guilty of the charge set out in the indictment, you don't have to look at the alternative offence at all. You only have to consider the alternative if you acquit him of that charge."
45 Later (at TS 1338) his Honour gave a direction, in effect, that when it came to the jury delivering their verdicts they would have to return a
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- verdict of guilty or not guilty in relation to the fraud charge and that if they found him not guilty of these charges they would have to give a verdict on the alternative charge of stealing by direction. (No complaint is made about this part of the direction which is in accordance with Stanton's case.)
46 The applicant's written submissions read:
"In line with his Honour's direction … the jury will be reaching a situation whereby they are unable to consider the principal charge." [sic]
47 By this the applicant said he was complaining about the direction on TS 1335 which I have quoted above. In my opinion, his Honour's direction was in accordance with that part of Stanton's case which states that the jury must be left free to discuss the charges in whatever manner or order is convenient to them. In my view this ground has no merit.
Ground 1
48 This ground reads:
"The verdict is unsafe and unreasonable based on the facts and evidence presented by the prosecution."
49 This paragraph, read alone, sounds as though the applicant was asking for a review of all the evidence, but in his written submissions he stated that his complaint was that the "verdict on count 1 is inconsistent with the verdict in the counts 2, 3, 4 and 5" [sic].
50 The respondent also understood this ground to be concerned with inconsistency of verdicts. In its outline of submissions the respondent said that it understood the crux of the applicant's submission to be that the conviction on count 1 for fraud was inconsistent with the convictions of stealing by direction on the remaining counts on the indictment. When the Court asked the applicant during his oral submissions whether this was the point he wished to make, he stated that his complaint was that the verdict of guilty of count 1 was inconsistent with the verdicts of not guilty on the primary charges on counts 2, 3, 4 and 5. It is therefore clear that ground 1 is to be understood as a complaint about an alleged inconsistency in the verdicts.
51 Respect for the function which the law assigns to juries has led courts to express reluctance to accept the submission that verdicts are factually "inconsistent". This is not a case where there is an alleged
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- technical inconsistency in the verdicts. The complainant's allegation is that there is factual inconsistency. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions, those verdicts will generally be accepted as proper verdicts. See MacKenzie v The Queen (1996) 190 CLR 348 at 367.
52 In MFA v The Queen (2002) 213 CLR 606, Gleeson CJ, Hayne and Callinan JJ explained that where an accused is charged with multiple offences, different verdicts may not in truth involve inconsistencies of a factual kind. The question about the reasonableness of the jury's decision and the significance of verdicts of guilty on some counts and not guilty on other counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, the jury's function and their role has to be taken into account. First the jury will ordinarily be directed to give separate consideration to each count and this will be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, the onus of proof may mean that the jury may have a reasonable doubt in relation to a charge even though they do not reject the complainant's evidence. Thirdly, a jury may consider that although a number of offences have been alleged, justice is met by convicting an accused of some only of the charges. There may be an interaction between these three considerations. See MFA's case, [33] and [34].
53 I now turn to the facts of this case. It must first be observed that the charges each involved a separate complainant and the evidence about the circumstances in which each complainant was induced to make payment was different from the evidence in relation to the other charges. There was, of course, a similar pattern in what occurred, but the jury was required to consider each count separately. Secondly, count 1, although first on the indictment, was chronologically last (if reference is had to the second of the two payments made by the complainant in relation to count 1, that being made on 15 March 2000). After the other complainants in relation to counts 2, 3, 4 and 5 had parted with their money and before the complainant in relation to count 1 parted with his final payment on 15 March 2000, there occurred an event which provided written evidence to the jury that the applicant knew about Al-Aqsa's financial predicament. He knew, as was revealed in his letter of 6 March 2000 (referred to above) that he was obliged to reduce the debit balance in the overdraft account and that he had no option but to arrange alternative finance. To that evidence must be added the evidence that he had no binding arrangement in place with any other financier on 15 March 2000.
(Page 16)
54 With that evidence, the jury was entitled to be satisfied that by 15 March 2000 when the complainant in count 1 made his last payment, that the applicant took the money with intent to defraud. The jury may have doubted whether such an intent existed at an earlier time although they clearly considered that all the elements of stealing by direction had been made out in relation to the charges earlier in time (counts 2, 3, 4 and 5). Thus the verdicts were not inconsistent.
55 In my opinion, there is no merit in this ground.
Application for an extension of time
56 The applicant also applies for an extension of time in which to appeal. The applicant was convicted on 20 April 2004 and the application for leave to appeal was filed on 2 August 2004, almost 3 months out of time.
57 Where there has been a lengthy delay, the Court requires exceptional circumstances to be shown before granting an extension of time unless it can be shown that there will be a miscarriage of justice if an extension is not granted. R v Chan (1989) 38 A Crim R 337 at 339. The applicant filed his application for an extension of time on 16 September 2004. The application is not supported by an affidavit and there is no explanation at all for the delay. Given the lack of merit in the grounds of appeal, there will be no miscarriage of justice if an extension of time is not granted.
Conclusion
58 I would dismiss the application for an extension of time to appeal and I would dismiss the application for leave to appeal.
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