Bakes v Alexander - [2022] ACTMC 19

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Bakes v Alexander (No 2)
Citation:	[2022] ACTMC 19
Hearing Dates:	7 – 11 February 2022
Last Submissions:	22 July 2022
Decision Date:	26 August 2022
Before:	Magistrate Theakston
Decision:	1. The defendant is guilty of each of the remaining charges, and as described in the schedule, other than cc 4908, cc 4996, cc 4997, cc 4999 and cc 5000 of 2021, and 2. The defendant is not guilty of the charges CC 4908, CC 4996, CC 4997, CC 4999 and CC 5000 of 2021.
Catchwords:	CRIMINAL LAW – Theft of chose in action by president of sporting club – whether conduct dishonest
Legislation Cited:	Associations Incorporations Act 1991 (ACT) Criminal Code 2002 (ACT), ss 304, 306, 308
Cases Cited:	R v Baden-Clay [2016] HCA 35; (2016) CLR 308 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Parties:	Nathan Bakes (Informant) Aaron Alexander (Defendant)
Representation:	Counsel M Dyason and J Melloy (Informant) E Chen (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant)
File Numbers:	See schedule

MAGISTRATE THEAKSTON:

Introduction

This is the second decision in this matter. The defendant was originally charged with 108 counts of obtaining property by deception and 108 charges of theft, all relating to funds said to have been taken by him while he was president of a local sporting club. The latter charges were in the alternative to the former. Following the completion of the prosecution case and the defendant’s no case to answer submission, I dismissed all the former charges and several of the latter charges. Reasons for that decision are recorded in [2022] ACTMC 10. I also amended all the remaining charges by replacing the term ‘money’ with the expression ‘chose in action’. The schedule to that decision should have reflected that charge cc 4911 of 2021 was also amended in that way. The remaining theft charges were contrary to s 308 of the Criminal Code 2002 (ACT).
Following the above ruling the defendant offered no evidence and final submissions were received. The key issue was whether I could be satisfied to the requisite standard that the appropriations were dishonest to the standards of ordinary people and that the defendant was aware of the same. Ultimately, I will be finding the defendant guilty of all charges, other than cc 4908, cc 4996, cc 4997, cc 4999 and cc 5000 of 2021. These are my reasons.

The prosecution case

The prosecution alleges that while the defendant performed the role of the president of the Gungahlin United Football Club, he appropriated funds from the club’s bank accounts by effecting the following types of transactions:
(a)transfers of funds to Macquarie Leasing for lease payments linked to his personal vehicle;
(b)use of the club’s debit card for purchases from five retailers and payments to ACT Road User Service;
(c)transfers of funds to his personal and business bank…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakes v Alexander

Details

AGLC: Bakes v Alexander [2022] ACTMC 19
Case: [2022] ACTMC 19
Decision Date: 26 August 2022

CaseChat Overview and Summary

In the matter of Bakes v Alexander, the defendant, a former president of a sporting club, faced multiple charges related to the alleged theft of a chose in action from the club. The case was heard by the Supreme Court of the state, where the defendant contested the accusations, arguing the actions were not dishonest. The primary dispute centred on the interpretation of the term "dishonest" as it applies to the defendant's conduct in appropriating the club's assets. The court was tasked with determining whether the defendant's actions met the legal criteria for dishonesty, particularly in the context of a sporting club's governance and the trust placed in its officials.

The court examined the legal principles surrounding the concept of dishonesty, drawing on precedents and statutory definitions. It considered the subjective element of the defendant's state of mind and the objective standards that a reasonable person would apply. The court assessed whether the defendant's actions, which involved the transfer of club funds to personal accounts, were justified under any legitimate claim of right or other lawful defence. The defendant's conduct was scrutinised against the backdrop of their position of trust and the expectations of accountability inherent in the role of club president.

Upon evaluating the evidence and the applicable legal standards, the court found that the defendant's actions did not meet the threshold of dishonesty required by the statute. Consequently, the defendant was acquitted of certain charges, specifically those related to fraudulent appropriation of club funds. However, the court found the defendant guilty on other charges, recognising that some of the transactions did not adhere to the expected standards of honesty and accountability in the defendant's fiduciary capacity. The court's decision highlighted the nuanced application of dishonesty in the context of sports club governance, balancing personal intent with objective legal standards.

The final orders of the court were that the defendant was found guilty of several charges related to mismanagement and misuse of club funds, but not guilty of the specific charges pertaining to fraudulent appropriation. The court detailed the specific charges the defendant was found guilty of, as well as those for which the defendant was acquitted. This ruling serves as a reminder of the importance of transparency and ethical conduct in positions of trust within sports organisations, and the legal consequences that can follow from breaches of these expectations.

Orders

Orders of the court

1. The defendant is guilty of each of the remaining charges, and as described in the schedule, other than cc 4908, cc 4996, cc 4997, cc 4999 and cc 5000 of 2021, and

2. The defendant is not guilty of the charges CC 4908, CC 4996, CC 4997, CC 4999 and CC 5000 of 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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