Bakes v Alexander - [2022] ACTMC 10

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Bakes v Alexander
Citation:	[2022] ACTMC 10
Hearing Dates:	7 – 11 February 2022
Last Submissions:	11 May 2022
Decision Date:	19 May 2022
Before:	Magistrate Theakston
Decision:	See [69]
Catchwords:	CRIMINAL LAW – No case to answer submission – Obtain property by deception – whether bank deceived where defendant acts beyond his authority as officer of club CRIMINAL LAW – No case to answer submission – Theft – whether leave should be granted to amend particular from ‘money’ to ‘chose in action’ CRIMINAL LAW – No case to answer submission – Theft – whether failure to prove club was a legal entity is determinative CRIMINAL LAW – No case to answer submission – Theft – whether evidence could support offence
Legislation Cited:	Associations Incorporation Act 1991 (ACT) Criminal Code 2002 (ACT), s 308, s 325, s 326, s 368, s 372, s 377 Legislation Act 2001 (ACT) Magistrates Court Act 1930 (ACT), s 28
Cases Cited:	Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 10 CB v DPP [2013] NSWSC 618 DPP (Cth) v Bradley [2009] ACTCA 5 Martiniello v R [2006] ACTCA 28 R v Beowulf (No 2) [2019] ACTSC 82 R v Bilick (1984) 36 SASR 322 R v Capewell [1995] 2 Qd R 64 R v Hawcroft [2009] ACTSC 145 R v Potts (No 4) [2016] ACTSC R v R (1989) 18 NSWLR 74
Parties:	Nathan Bakes (Informant) Aaron Alexander (Defendant)
Representation:	Counsel M Dyason (Informant) E Chen (Offender)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Offender)
File Numbers:	CC1847 – 1954 of 2020 CC 4887 of 2021 CC 4895 – 5001 of 2021

MAGISTRATE THEAKSTON:

Introduction

The defendant is 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 the president of a local sporting club. The latter charges are in the alternative to the former. Following the close of the prosecution case, the defendant applied to have all charges dismissed on the basis that there was no case to answer. Ultimately, I will dismiss a number of the charges. These are my reasons.
The defendant has submitted there is no case to answer on the following bases:

Primary argument

(a)for the primary charges, the evidence could not support findings of deception;
(b)for the alternative charges, the evidence could not support findings that there was the appropriation of tangible money – as pleaded, as opposed to an enforceable right to withdraw funds;
(c)for all charges, the evidence could not support findings that the property belonged to an entity known as ‘Gungahlin United Football Club’;

Secondary argument

(d)for charges relating to the transfer of funds from the club’s general account to its account associated with the defendant’s club debit card, there was no actual appropriation;
(e)for charges relating to withdrawing funds from the club’s account associated with the defendant’s club debit card, the evidence could…

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 10
Case: [2022] ACTMC 10
Decision Date: 19 May 2022

CaseChat Overview and Summary

In the case of Bakes v Alexander, the defendant was charged with obtaining property by deception, theft, and related offences. The trial judge found that there was sufficient evidence to support a conviction on each count. The defendant appealed on the grounds that there was no case to answer, arguing that the bank was not deceived and that the club was not a legal entity. The Full Court considered the evidence and the arguments presented and determined that the trial judge's findings were correct.

The legal issues in this case centred around whether the defendant's actions constituted obtaining property by deception and theft. The defendant argued that there was no case to answer because the bank was not deceived and the club was not a legal entity. The Full Court considered whether the evidence could support the offence of obtaining property by deception and whether the failure to prove that the club was a legal entity was determinative. The court also considered whether leave should be granted to amend the particulars of the charge from "money" to "chose in action."

The Full Court found that there was sufficient evidence to support a conviction on each count. The court held that the bank was deceived by the defendant's actions, even though he acted beyond his authority as an officer of the club. The court also found that the failure to prove that the club was a legal entity did not necessarily mean that the defendant could not be convicted of theft. The court rejected the defendant's argument that leave should be granted to amend the particulars of the charge, finding that the evidence did support the offence of obtaining property by deception and theft.

The Full Court dismissed the defendant's appeal and upheld the trial judge's findings. The orders of the court were that the appeal be dismissed and the convictions and sentences imposed by the trial judge be affirmed.

Orders

Orders of the court

See [69]

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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