Belan v The Queen

[2020] NSWDC 715

District Court

New South Wales

Medium Neutral Citation:

Belan v R [2020] NSWDC 715

Hearing dates:

29 May 2020; 11 August 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

In respect of SEQ 46 & 64, the conviction appeal is upheld and the conviction and orders of the learned magistrate are quashed.

In respect of all other matters listed today:

The conviction appeal is dismissed.

The conviction is confirmed.

The sentence appeal is SOPH to 23 October 2020 at 10 a.m. Bail is refused.

Catchwords:

CRIMINAL – appeal against conviction – 58 counts of dishonestly obtaining a financial advantage or causing a financial disadvantage by deception – 1 count of participating in a criminal group by directing any of the activities of the group - duplicity – credibility and demeanour

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Interpretation Act 1987 (NSW).

Cases Cited:

R v SKL; R v JY; R vXGL [2019] NSWCCA 43

Category:

Principal judgment

Parties:

Derrick Belan
Regina

Representation:

Counsel:
Appellant: Mr S Lawrence,
Mr A Duc
Respondent: Mr C Evans

Solicitors:
Appellant: Mr H Ginges
Respondent: Ms M Tam

File Number(s):

2016/00344587

 Decision under appeal 

Court or tribunal:

Local Court New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 June 2018

Before:

Ms E Ellis LCM

File Number(s):

2016/00344587

Judgment

1. There were originally 64 sequences against the appellant in the Local Court as follows:

• Sequences 34 and 42 were withdrawn by the prosecution on commencement of the hearing;

• Sequence 21 (a backup to Sequence 20) was withdrawn when the appellant was convicted in respect of Sequence 20;

• The appellant after completion of all of the evidence pleaded guilty to Sequences 36 and 50 on 22 March 2018.

2. The conviction appeal relates to 59 sequences:

• 58 charges pursuant to s.192E(1)(b) Crimes Act 1900, of dishonestly obtain financial advantage or cause a disadvantage to the National Union of Workers (NUW) by deception spanning the period 17 October 2010 to 17 November 2016;

• 1 charge pursuant to s.93T(1A) Crimes Act 1900, participate in a criminal group between 13 March 2010 and 26 October 2015.

3. The overall quantum in respect of which it was alleged the appellant either obtained an advantage or subjected the NUW to a disadvantage was $650, 849.69 (T545).

4. On appeal the prosecution on considering the evidence before the Local Court and cross-referencing the extensive bank records contained in the exhibits now calculates the advantage to the appellant and the disadvantage to the NUW as $585,413.11.

5. In addition the prosecution submits that there was inadequate evidence in respect of Sequence 64 on which to base a verdict of guilty beyond reasonable doubt. It is appropriate as a result of that submission to indicate now that I find the appellant not guilty in respect of Sequence 64 and accordingly quash that conviction.

6. The hearing was before her Honour Ms Ellis LCM and occupied eight days of evidence commencing on 13 March 2018 and concluding with the appellant’s evidence on 21 March 2018. Submissions were made on 22 March 2018 and judgement was delivered the following day.

7. Twenty-two witnesses were called and 100 exhibits were tendered by the prosecution.

8. The defence case consisted of the oral evidence of the appellant.

9. One exhibit, Exhibit 35, consisted of 5 A4 ring back binders containing bank statements relating to the accounts of the NUW. Many of the exhibits, while less voluminous than Exhibit 35, were none the less substantial. In the circumstances it is entirely understandable that the evidence in respect of Sequence 64 was somehow overlooked by the magistrate and the parties. Also causing difficulties for all was the fact that there was no transcript available prior to the magistrate delivering her reasons. Transcript of the evidence and submissions totals 530 pages.

The Conviction Appeal

10. The appeal (by way of a rehearing), comprises Exhibit 1, being the transcript and all of the original exhibits as well as copies of them.

11. The appellant filed a Notice of Appeal to the District Court dated 18 June 2018.

12. Volumes 1 to 11 were tendered by the Crown before his Honour Hanley SC DCJ at Penrith District Court on 26 November 2019. There are now approximately 14 A4 volumes not including the original exhibits.

13. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence and is not an appeal de novo.

14. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance. The appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding on the transcript.

15. Although the magistrate’s reasons are not part of the certified transcripts referred to in section 18(1), the appellate function could not properly take place without reference to them.

16. The powers of the District Court are exercisable where the appellant demonstrates that the subject of the appeal is the result of a legal, factual or discretionary error. The appellate court can substitute its own decision based on the facts and law as they then stand.

17. The term “error” has no precise meaning. It is a matter for the appellate judge to determine whether the trial judge was wrong and whether they should be corrected. The judgement of the trial judge (in this case the Magistrate), will not be set aside unless the appellate judge is satisfied that the judgement is wrong. How the appellate court reaches that state of satisfaction will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term.

18. In this appeal the prosecution has submitted that the Court should limit itself to considering only the magistrate’s reasons only so far as they disclose demeanour and credibility of the witnesses in the circumstances where her Honour had the opportunity to observe the witnesses in person. The appellant agrees with this approach.

19. I have read the entirety of the transcript while going to the individual exhibits as they were tendered in the Local Court hearing. I formed my own conclusions as to the veracity and credibility of the witnesses before turning to her Honour’s judgement, limited to obtaining the benefit of any observations or conclusions as submitted by the prosecution.

20. The prosecution submissions on appeal provided by Mr Craig Evans, Counsel, are part of Exhibit 1 and are 183 pages in length and an additional volume to what has already been referred to.

21. The appellant’s submissions provided by Mr Lawrence, Counsel, are in several parts and are Exhibit B1, titled “Outline of Submissions for the Appellant” , dated November 2018, (15 pages), “Further Outline of Submissions for the Appellant”, undated (11 pages), and “Further Outline of Submissions for the Appellant”, dated 28 May 2020 (45 pages).

22. In addition I have had the benefit of the submissions of the parties as part of the transcript from the Local Court and an “Outline of Submissions on behalf of the Applicant”, dated 1 May 2019 (14 pages), provided by Mr Anton Duc, Counsel who appeared for the appellant in the Local Court. This “Outline of Submissions on behalf of the Appellant” has been adopted in summary in Mr Lawrence’s submissions of 28 May 2020.

Elements of the Offences

23. There is no dispute between the parties as to the elements the prosecution was required to prove beyond reasonable doubt.

Financial Advantage or Disadvantage by Deception

24. The appellant faces 58 fraud charges pursuant to s.192E(1)(b) of the Crimes Act 1900, namely, he dishonestly obtained a financial advantage or caused a financial disadvantage by deception.

25. The elements of this offence are:

1. The accused

2. By deception

3. Dishonestly

4. Obtains any financial advantage or causes any financial disadvantage.

26. ‘Deception’ is defined in s.192B of the Crimes Act 1900 as:

“(1) In this Part, "deception" means any deception, by words or other conduct, as to fact or as to law, including:

(a) a deception as to the intentions of the person using the deception or any other person, or

(b) conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.”

27. Obtaining a financial advantage or causing a financial disadvantage is defined in s.192D of the Crimes Act 1900 as:

“(1) In this Part, "obtain" a financial advantage includes:

(a) obtain a financial advantage for oneself or for another person, and

(b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and

(c) keep a financial advantage that one has,

whether the financial advantage is permanent or temporary.

(2) In this Part, "cause" a financial disadvantage means:

(a) cause a financial disadvantage to another person, or

(b) induce a third person to do something that results in another person suffering a financial disadvantage,

whether the financial disadvantage is permanent or temporary.”

28. ‘Dishonesty’ is defined in s.4B of the Crimes Act 1900 as:

(1) In this Act

"dishonest" means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(1) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

Participate in a Criminal Group

29. The appellant is also charged with one count of participating in a criminal group by directing any of the activities of the group pursuant to s.93T(1A) of the Crimes Act 1900.

30. The elements of this offence are:

1. The accused was participating in a criminal group;

2. The accused was directing an activity of the criminal group;

3. Knowing that it was a criminal group;

4. Knowing or was reckless as to whether that participation contributes to the occurrence of any criminal activity.

A Preliminary Issue - Duplicity

31. The appellant submits that a large number of the sequences were bad for latent duplicity. That is: Sequences 1, 2, 5, 8, 12, 13, 18, 40 and 41.

32. Each of these sequences can be summarised as a group of purchases or payments using a union credit card or bank transfer between dates where there is a common or related factor.

For example:

Seq 1 – Between 17.10.2010 and 13.09.2015 – Multiple purchases using a union credit card at/about Lake Conjola Tourist park - $6,812.83.

Seq 2 – Between 14.11.2012 and 12.10.2015 – Multiple purchases using a union credit card at “Catch of the Day Online Store” - $40,408.89.

Seq 18 – 25.03.2013 – payment of vehicle transfer related expenses - $2,454.00.

Seq 40 – Between 21.01.2012 and 6.10.2015 – purchases at Woolworths with union credit cards - $3,307.34.

Seq 41 – Between 26.02.2012 and 13.09.2015 – fuel and other purchases at Woolworths service stations on union credit cards - $807.73.

33. For example in Seq 1 the related or common factor was that the appellant went to Lake Conjola Tourist Park for his and his family’s annual holiday and used various union credit cards to pay for accommodation and also incidental expenses in the general local area at the time of the accommodation, such as petrol.

34. That each of these sequences involved multiple transactions with a common or related factor was not evident from the Court Attendance Notice.

Seq 1 - Dishonestly obtain financial advantage or cause disadvantage by deception between 12 pm on 17/10/2010 and 12 pm on 13/09/2015 at Granville did by deception, that is, use a corporate credit card, to dishonestly obtain a financial advantage, to wit, $6,812.83 (as amended) of National Union of Workers (NSW) funds for personal use.

35. No request was ever made by the appellant for further and better particulars in respect of any of the now complained about sequences.

36. The appellant had been provided with a 32 page “Facts Sheet” (as provided to Wilson DCJ on 22 August 2018 and now part of Exhibit 1 on the Appeal) outlining the general case as asserted by the prosecution and providing specific reference to the particular individual transactions as to date, credit card, amount and place (eg. Seq 1) or a general description which was readily understood by simply looking at the relevant list of ongoing transactions within the charge period (Seq 2).

37. If each transaction was charged separately Seq 1 would have been replaced by approximately 10 separate charges of the same nature in varying amounts. Seq 2 would have been replaced by approximately 104 charges of the same nature in varying amounts.

38. Sequences 1, 2, 5, 8, 12, 13, 18, 40 and 41 were all rolled up charges. Rolled up charges are commonly used to simplify the process of prosecution/defence and sentence. There was no disadvantage to the Appellant in this process being adopted and no complaint made until appeal. The significant advantage to the appellant is that the maximum sentence available on a rolled up charge is the same as would have been available for an individual transaction, That is, in respect of Seq 2 if not rolled up 104 times the maximum available for a single proved dishonest deception transaction.

39. No objection was made at the commencement or the proceedings to any of the rolled up sequences proceeding in this fashion. The appellant had the benefit of legal advice and being represented by Mr Duc, barrister, and an instructing solicitor, Mr Hal Ginges of Hal Ginges and Company.

40. This matter proceeded in the Local Court on a basis that was clearly accepted on legal advice as appropriate by the appellant and which was to his advantage. This was a “practical” or “common sense” approach which has become common where the facts are so closely related that they amount to the one activity.

41. The appellant’s submissions refer to these identified sequences as “…oppressive and unfair and made the fair and efficient conduct of the proceedings in some cases impossible.” In none of the various appellant’s submissions is there any identification of why it is asserted that to have proceeded with the rolled up counts was “oppressive”, “unfair” or “made the fair and efficient conduct of the proceedings in some cases impossible”.

42. The appeal will be dealt with on the same basis that it was conducted in the Local Court.

The Relevant Background

43. The appellant at all relevant times was the State Secretary of the National Union of Workers (NUW).

44. The appellant was the State Secretary from late 2001 until his disengagement on 26 October 2015.

45. The appellant’s evidence was that he was the State Secretary for 13 years. He resigned in around September 2015.

46. The Crown case is that the appellant has;

1. Used his NUW corporate credit card between 2011 and 2015 for his own personal use and, or to the disadvantage of the NUW;

2. Been a party to false invoices to the NUW for which he has either received a benefit or caused financial disadvantage to the NUW; and,

3. Received cash advances or Electronic Fund Transfers (EFT) for financial advantage or caused financial disadvantage to the NUW.

47. There is significant evidence from two co‑offenders (with respect to separate matters and the “participate in a criminal group” charge), who gave evidence of the appellant’s transactions, directions and system:

Danielle O’Brien:

A niece of the Appellant who was at the relevant times the book keeper and office manager of the NUW. Ms O’Brien had previously pleaded guilty to around 160 charges relating to the NUW and had been sentenced. In summary she had defrauded the NUW of $310,230.16 and was sentenced to 13 months to be served by way of Home Detention.

Angelo Millena:

The proprietor of CMS Information Technology (CMS IT), a supplier of IT services and related computer procurement services to NUW since 2004 and Access Software Developing P/L set up by Mr Millena specifically to invoice the NUW for benefits provided to the appellant. Mr Millena had previously pleaded guilty to a number of charges relating to his relationship to the NUW and had been sentenced. In summary Mr Millena defrauded the NUW of $41,119.15 and was sentenced to a 9 month Intensive Correction Order. [The extent to which this was before the Magistrate is uncertain as in her judgment she refers to him as having been charged but not knowing the outcome. This information as to the amount and the sentence comes from one of the Submissions on behalf of the Applicant.]

48. A number of members of the Branch Committee of Management, Union Organisers and staff also gave evidence in the prosecution case: Marilyn Issanchon, John Anderson, Terry McQuillan, Wayne Meaney, Garry Cripps, Duarte Mendonca, Martin Cartwright, Francis Dimaio, Elizabeth Shenk.

49. In addition there were a number of witnesses relating to some of the individual charges:

Ms Montserrat Vidal-Williams (CMS IT);

John Crawford (CMS IT);

Ms Yu Cai (Union Accountant);

Mr Alwar Diriani (Proprietor of the Cambridge Convenience Store);

Ersel Akpinar (Solicitor with Slater Gordon, Union and Accused’s solicitors);

Darren Ellis (Partner of Accused’s sister);

Samantha Lancaster (Daughter of Accused’s partner);

Brandon Hudson (Partner of S. Lancaster);

Darren Ellis (Partner of Appellant’s sister)

50. Approximately 50 statements from witnesses or potential witnesses were tendered in the prosecution case without objection, as were all of the documentary exhibits.

51. The Accused gave evidence in the defence case and was the only witness in the defence case. No exhibits were tendered in the defence case.

52. The defence case in brief was essentially that the appellant was not dishonest and did not deceive the NUW. Further, that the appellant was at all times acting in accordance with the Rules of the Union and that any charges against the union credit card were improperly accounted for by Ms O’Brien who was to utilize his personal credit cards or ensure that any charges or transfers of funds on his behalf were accounted for by being set off against his entitlements, or had left cash with Ms O’Brien to cover the charge, (e.g. Seq 4 - his son’s dental bill) and that he had not been party to any inflated or false invoices rendered by businesses associated with Mr Millena to cover cash, property or accommodation provided to him by Mr Millena or his businesses.

53. The Rules of the NUW NSW Branch provide a number of relevant clauses (Statement of Marilyn Issanchon, President of the NUW Ex 44 Annexure B). In particular:

1. Clause 14 which deals with the withdrawal of funds;

2. The General Fund is established for general expenses of the Union in carrying out the objects in Rule 3 or as otherwise recommended by the Committee of Management (Rule 14.1);

3. Any loan, grant or donation of an amount exceeding $1000 shall not be made by the Union unless the Committee of Management provides approval (Rule 14.2);

4. The Finance Committee shall advise the Committee of Management on all matters concerned with finance (Rule 13.4); and,

5. A monthly statement of the financial transactions of the Union shall be presented to the Committee of the Union and to each General Meeting (Rule 13.4).

54. The prosecution case is that the appellant’s expenditures (the subject of this appeal) were for personal expenses and were not authorised by the NUW. The appellant’s expenditure was not in accordance with Rule 3 of the NUW Rules.

55. Ms Lord recalls Charlie Morgan being ‘hauled over the coals’ by the appellant for using an NUW credit card for a personal expense. Ms Lord took the minutes at the Branch Committee of Management meetings (BCOM). She had not heard of anyone asking to see Credit Card statements (Statement of Jennifer Lord, Secretary to the appellant, Ex A 43 at [16]-[19]). Several witnesses confirmed the appellant’s lack of tolerance for any deviation from the policy of NUW credit cards only being used for NUW purposes and his firm response to failure to conform to it.

54. The appellant was provided with a number of Corporate Credit cards over the years. These card numbers are listed in Exhibit 100.

55. The prosecution case is that the appellant was dishonest and deceptive in his use of the NUW funds by using the NUW credit cards for non-approved purposes and by not providing or disclosing the true nature of the details of his spending/purchases to either his employer or the BCOM.

56. The prosecution alleges that to the extent that NUW funds were used for non-approved personal purposes, the appellant was financially advantaged and/or the NUW was disadvantaged. On occasions the disadvantage to the NUW was greater than the advantage to the appellant.

Example: If the appellant obtained cash or some item for personal use through Mr Millena or CSM IT, the union would be invoiced for inflated or entirely false IT work or procurement. As CSM IT would have to include a GST charge and take into account tax on the income reflected by the invoice, the invoice would have to be significantly inflated above the value of the cash or item provided. Hence the advantage to the appellant would be less than the disadvantage to the Union.

An Overview as to the Credibility of Witnesses

59. Having read the entire transcript I make the general observation that almost all of the prosecution witnesses called appear to be entirely credible and the effect of their evidence supporting the prosecution case was not diminished by cross-examination. Exceptions included Mr Darren Ellis and Mr Alwa Dirani – I will refer to him and Seq 19 shortly hereafter.

60. In particular the evidence of Ms O’Brien and Mr Millena was clear and highly credible. Both had admitted to committing criminal offences with regard to the NUW and in association with the appellant. Each was entirely unshaken in cross-examination and giving evidence on these matters must have been highly embarrassing to them. There was corroboration of their evidence in general from exhibits and other witnesses.

61. Having formed the view that their evidence was forthright and truthful from the transcript, I later turned to the reasons of her Honour Ellis LCM to determine whether there were any matters relating to demeanour which would not be evident from the transcript but evident to her Honour with the advantage of personally hearing the evidence.

62. The Magistrate noted that:

“Ms O’Brien was an extremely nervous witness. She was often tearful, constantly shaking, short of breath. She gave intricate details of how payments were authorised by Derrick Belan …True it is that both Ms O’Brien and Mr Millena conducted themselves outside accepted behaviour, both are paying a very high price and will continue to do so for many years if not the rest of their lives. I assess the evidence they gave including their demeanour. Each did not shy away from or excuse their criminal activity. Neither came across as wanting to bring Derrick down. Each impressed as wanting to give truthful evidence to try and correct the wrongs they have perpetrated.”

63. This brief reference is entirely consistent with the opinion I formed from a reading of the transcript.

64. As to the evidence of the appellant, I also formed a view on the transcript. Suffice it to say that he was not in any way a credible witness, and in my view none of his evidence can be accepted unless it is not in contest or there is independent objective evidence from another source which clearly supports his evidence. There is no such independent objective evidence supporting any relevant matter raised by the appellant as a defence in his evidence.

65. I have sought to be assisted by any view formed by the magistrate with the advantage of personally hearing the appellant’s evidence. Her judgement records the following:

“Here I state my overview of Mr Belan’s evidence. I accept Mr Palmer’s submission as correct that Mr Belan presented different versions to the Court, the first one was via his instructions to his legal team. In his opening address, Mr Duc did not raise the defence that Mr Belan had an honest belief that he was acting within implied or explicit authority of the union. I had to check this at one point in cross-examination of Ms Issanchon, it was confirmed it was not a defence relied upon yet it was raised by Mr Belan in his evidence that he thought he could use the union card as long as it was in the interests of the union; this is essentially a second version. A third version was that given to the Royal Commission. I have heard excerpts only but that quoted is clearly at odds with that represented to this Court.

Essentially Mr Belan blames Ms O’Brien for each fraud done without his knowledge let alone his consent. Whatever questioning in cross-examination got to the point of requiring Mr Belan to own up to any investigation he would answer, “That was Danielle’s responsibility”, or “That was Ms O’Brien’s action”, or, “I don’t know where Ms O’Brien was paying money from, I just left it to her”. He also painted himself as the victim in other respects. Ms Palmer put to him that his version meant, “another witness got it wrong?”, answer, “A lot of people get it wrong but that’s the day in the life of a union official”.

There were also inconsistent propositions with his evidence, (1) that Ms O’Brien was required to cash in leave from Mr Belan’s entitlement to pay rent but (2) he was ripped off because Ms O’Brien put the money in her own account. While there was a demand he leave one of the rental properties because of damage to the property, there is no evidence especially of latter properties, that he was evicted for non-payment of rent. Consistently Mr Belan said, “I never told Danielle to use a union or other employees’ credit card” and, I never told Angelo Millena to bill the Union. I Love the union, it’s my family”.

66. In reading the transcript of Mr Belan’s evidence I formed the strong view that he was making it up as he went. He raised issues relevant to his defence that had not been put to the appropriate witness or witnesses, as was pointed out in court on occasion by the prosecution and the magistrate (E.g. T440.37), and there was no application to have any prosecution witness recalled although there was some reference to that possible course by the magistrate(T440.20).

67. It is appropriate and convenient to refer to some examples, but not exhaustively:

Seq 4 – That he left $4,200 cash in the office for Ms O’Brien to make the payment for his son’s dental work at Cambridge Park and that she went there and paid it. This was not put to her.

Seq 5 – That $11,293 for emergency short term accommodation for himself and his children was approved by the BCOM. This was not put to any witness nor was any relevant document, such as a minute of meeting, produced.

Seq 6 - $20,220.98 for rent of 73 River Rd, Emu Plains, occupied by the appellant and family. That money was being deducted from his salary and/or cashed in leave entitlements by Ms O’Brien to pay this. This was not put to her.

Seq 8 - $13,477.60 for rent of Kennard’s Storage facilities. That this was to store NUW property such as BBQ and signage trailers. There was no evidence that the NUW had such items, nor was it put to any witness that the NUW had stored such items. The storage facility contained personal items of the appellant’s family.

Seq 10 - $ 417.90 for an Ella Rouge Gift card for laser treatment for his children to give to his ex-wife. That it was “prearranged” for him to use the NUW credit card for personal expenses if he did not have cash or a personal credit card at the time of purchase. This was not put to any witness and is entirely inconsistent with the evidence of others as to acceptable use of NUW credit cards and the appellant’s insistence on compliance with policy.

Seq 11 - $1,030 to redeem a women’s TAG Heur Aquaracer watch pawned by his partner. Although he claimed to be keeping cash in the office (T441) at T 442 he appears to refer to it as being not cash but held in some unspecified NUW trust account. There was no evidence of him keeping cash at the NUW or of any NUW trust account for him and neither of these were suggested as being actual to Ms O’Brien.

Seq 12 - $67,278.37 paid to Slater and Gordon, the NUW solicitors, and a barrister between 20 August 2014 and 22 October 2014 in respect of the appellant’s legal costs in respect of AVO and Family Court proceedings in respect of his partner Paula Lancaster. The appellant asserted that these payments were disclosed to and authorized by the BCOM. This was not put to any witness nor is there any relevant documentation in support.

68. Evidence Inconsistent with Lack of Knowledge: The appellant frequently placed blame on Ms O’Brien for personal expenditure recorded on and paid by NUW credit cards.

69. At T467.45 the appellant stated:

“Q. You've just given evidence that you checked your personal credit card statements and these amounts weren't showing up on your personal credit cards?

A. No.  I checked the work credit card statements.  They're the ones I reported to the police, or told Danielle to.  My personal ones Danielle looked after.  That's what I'm saying, Danielle had all them, Danielle had all of those items, everything.” (Emphasis added)

70. The appellant further stated at T468.03:

“Q. But sir, you said in your evidence‑in‑chief, "I didn't tell her to put it on my work card".  Why would you be checking your union card and then making reference to "none of this is showing up on those accounts"?

A. I used to check my card and the union card all the time.  It was my job to check on my union card.  Each organiser was meant to check if there was a ‑ if something wasn't ‑ if something was on a card that seemed to be outside of ordinary spending was flagged by Danielle.  It was then put on the organiser's desk and my desk to explain what it was.  That's how it used to work.  The —" (Emphasis added)

71. The appellant gave evidence that he checked the NUW card every month (T468.28).

72. Considering the nature and frequency of the substantial amounts of non-union expenditure at many geographically diverse locations over a significant period of time at which appellant must have personally attended in order to carry out the relevant transactions, it is impossible to accept that he was not dishonestly deceiving the NUW. The lack of relevant entries on his personal credit card would have been obvious as must have been the significant personal expenditure recorded on his NUW statements.

73. An Admission: At 3:14 pm on 9 June 2016, a date after commencement of a Royal Commission concerning the NUW, Mr Belan sent a text message to Ms O’Brien which reads:

“ I Derrick Belan committed all offences if any Danielle was force to do any offences or suffer dire consequences I admit all events There dolly what they wanted I kept my promise now you let the cards fall ok I’m to sad to care if you speak ill be angry Love you” (Exhibit 40)

74. The message was sent to her from a new mobile she had recently recorded as the appellant’s when he had called her. The following day he attended on her at her home and said;

“I want you to take it to the police and, you know, everything’s going to be alright, but just don’t say anything, don’t do anything and everything will be alright.” (T 101)

75. While the admission is only as to unspecified generalized criminal conduct, it is entirely inconsistent with his defence to the charges brought against him that he did nothing wrong at any time.

76. The appellant’s evidence was so grossly lacking in credibility that it can be rejected as not being worthy of any consideration of any degree of veracity.

The Union Financial System per the Appellant

77. The Appellant’s niece, Ms O’Brien, commenced work with the NUW in 1999 at the age of 18 years as a receptionist. Over time, after dealing with membership and data entry she became a fulltime bookkeeper and the office manager from about 2010. She occupied those positions at all relevant times to the charged offending.

78. At the time when Mr Belan became State Secretary of the NUW NSW branch, the system was that the Finance Committee first dealt with all matters concerning finance and provided a monthly report to the BCOM.

79. However the Finance Committee meetings were discontinued by Mr Belan, apparently on the basis that the members of that Committee were also on the BCOM, and the process became that a report would go to the BCOM at the monthly meeting, outlining in a broad way the finances. Full account statements, credit cards and bank accounts were not provided to the BCOM. That is, expenditure would simply be grouped under headings such as Accommodation, Airfares, Fuel and Vehicles and there would be a single total for each group rather than a breakdown of individual amounts and without itemisation for individual officials.

80. Credit card accounts were paid from the NUW funds by cheque. The cheques required two signatories to sign. One was John Anderson, a retired storeman and packer and a union Trustee, and Mr Belan as State Secretary. Mr Anderson would sign an entire book of blank cheques at a single sitting as he did not work in the office.

81. Ms O’Brien would receive the credit card statements and fill in the blank cheques already signed by Mr Anderson and give the statement and cheque to Mr Belan to add his signature. Thus in effect the appellant was able to authorise payment of all of his personal expenses and any false or inflated invoices.

82. Ms O’Brien also paid incoming invoices by Electronic Fund Transfer (EFT).

83. Each time the Appellant intentionally used the NUW credit cards for personal non-union purposes, he was by that act alone deliberately dishonestly deceiving the Union in the circumstances that he had so structured the NUW processes that they simply thereafter provided an unchecked rubber stamp. The deception was from the outset of the transaction and continued until the credit card account was met by payment from the NUW in accordance with the processes he had established. The appellant, using the credit card for a non-union purpose, intended to obtain for himself a financial advantage to the disadvantage of the NUW. It is not necessary to point to a specific individual in the Union that was deceived; it is the corporate entity that was deceived.

84. The appellant’s attempts to innocently explain his conduct at times had a ludicrous quality to them.

85. In respect of Seq 2, being 104 on-line credit card purchases of children’s toys, household items, perfume, electronic gadgets, gaming consoles, beauty treatments and gifts for his daughter (“Frozen Cubby House”) and other family members between 14 November 2012 and 12 October 2015, totalling $40,408.89 using various NUW credit cards issued to him, he said in evidence:

“Generally I would make the purchases and, yeah, they’d be dropped off at the office with the parcel or the box, whatever it is, and I take them home believing they’re on my personal card and believing there on my personal card and my “Catch of the Day” account” (T 401.30)

Considering the large number of individual transactions made by the appellant over a period of almost 3 years, using a number of different NUW credit cards linked to the appellant’s PayPal account and the significant amount paid, it is not possible that he believed he was using his personal credit cards.

86. The appellant’s submissions in respect of this sequence include the following assertion; “Such is the duplicity of this charge that even the prosecutor makes no attempt to detail what all the transactions were and why it can be proved beyond a reasonable doubt that they were all personal items and not union related.” The detail of all of the transactions is contained as part of Exhibit 3 (Tendered without objection at T 3). That all of the items were personal and not union related was accepted by the appellant as referred to above. Common sense also assists in the determination that the items were not union related, considering their nature, and particularly when after delivery to the office, he took them home.

87. In respect of Seq 2 I find beyond reasonable doubt that the prosecution has proved each of the elements of the offence.

False Invoice Charges - Sequences 19, 22, 23, 24, 25, 26, 27, 29, 30, 32, 35, 46, 47 and 62

88. The complaint made in respect of these sequences appears to be only as to Seq 19, 22 to 27, 29, 46 and 62 on the basis that the “benefit accrued to him prior to any deception occurring and as such the deception was not causative of the obtaining”.

89. This is a submission that there must be a temporal relationship between the deception and the benefit for the deception to be causative of the benefit. That is, that the financial advantage to the appellant must occur at the time of the dishonest deception or perhaps afterwards, but not before. There is no provision at law that requires that the advantage be obtained at the time of the dishonest deception. In these matters the financial advantage was obtained on the basis that a dishonest deception would occur thereafter; that is that a false invoice would be met on presentation. The knowledge that there would be a dishonest deception in those circumstances is “causative” of the obtaining of the financial advantage.

90. Sequence 19 - An exception to the general credibility of the prosecution witnesses was Mr Alwa Dirani, the proprietor of the Oxford Street Convenience Store at Cambridge Park, who invoiced the NUW for and received $51,315 from the NUW for renovations to convert an area in the Union premises to a Café. The work was to be carried out by a man whose name he was uncertain of but given variously as being “Louey” or “George Ellias” or “Ellias Ellias” or Ellias George”. According to Mr Dirani, the appellant, a customer of Mr Dirani’s “Convenience Store”, wanted Mr Dirani to supervise the “shop fitout”. Mr Dirani only visited the premises intended to be renovated once before any renovation was agreed. Other than Mr Dirani’s initial visit there was no evidence of anyone ever having attended the NUW premises to establish what was required to carry out any renovation work or to carry out any work. There was no evidence of any relevant consultation, layout plan, quote or contract but simply an invoice from “Oxford Street Convenience Store” (Exhibit 96), dated 9 May 2013, with a very basic scope of works. Several of the items listed are in respect of work already “carried out”. Ms O’Brien was instructed by the appellant to pay the invoice even though no work had commenced and never did. The instruction was colourful, “I’ll kill you if it’s not done by close of business today”, no doubt simply as emphasis on compliance rather than a real threat to his niece. The full amount was transferred into the St George account of “Aloi Dirani T/A Dirani’s MFC Supermarket” on 9/10 May 2013. Before the deposit the balance of the account was $1,937.15 and Mr Dirani withdrew $10,000 cash on 13 May 2013, $15,000 cash on 16 May 2013 and $25,000 cash on 17 May 2013 (Exhibit 97). Mr Dirani claimed he paid “Louie” the $40,000 cash total withdrawn on 16 and 17 May 2013.

91. The BCOM had never approved any such renovation. In short, $51,315 was removed from the NUW‘s account at the appellant’s direction, without the NUW receiving anything in return. The money trail stopped with the cash withdrawals by Mr Dirani. There is no evidence that the appellant received any of the funds, hence this Sequence was a charge of by deception causing a financial disadvantage to the NUW in respect of the false invoice. The appellant’s submission that this charge must fail because there is “no evidence of any benefit accruing to the appellant” fails to take account that the charge relates to a disadvantage to the NUW and proof of any benefit to the appellant is not an element.

92. While no impropriety was put to Mr Dirani, the circumstances relating to the arrangements and payment directed by the appellant are patently absurd. The deception was that the invoice was genuine and required payment for work that had never been performed to the appellant’s knowledge as evidenced by Ms O’Brien, who had resisted payment of the invoice for that reason as expressed to the appellant. In my opinion it is appropriate to infer beyond reasonable doubt that there was never any genuine intention of any renovation work being carried out.

88. The prosecution submissions outline the relevant evidence and the defence case. I find that the prosecution has proved the elements of the offence beyond reasonable doubt.

89. Sequence 22, 23 and 29 – Each of these sequences relate to rent and/or other costs associated with the rental of residential premises for the appellant and/or his family to reside in by Mr Millena and/or his businesses. The premise were at Mulgoa (Seq 22) from 19 April 2010 to 24 April 2011, Leonay (Seq 23) between 3 March 2011 to about 27 February 2012 and Yarramundi (Seq 29) between 10 February 2012 and 7 February 2013. In each case CSM IT leased the property and paid the rent, respectively Mulgoa - $29,951.88, Leonay - $37,250 and Yarramundi – $46,800. In each case there is ample and compelling evidence that CSM IT paid the rent. That the appellant and his family resided in the respective premises in the relevant periods was not denied by the appellant.

90. Mr Millena gave evidence that he was requested by Mr Belan to provide the premises for him and to invoice the NUW for the associated costs not as “rent” but as IT or computer related work, and that he did this by invoices which included an additional margin to account for GST and tax that would have to be paid as a result of the false invoices for work performed.

91. In respect of Mulgoa, it was put to Mr Millena and denied in cross-examination that he had been given $20,000 in cash by Mr Belan (T 331.5). In the appellant’s evidence he said he had given the $20,000 to Ms O’Brien after cashing in his leave (T 408.5). There was no support for this claim from Ms O’Brien.

92. The appellant’s evidence was in essence that he paid the rent from funds acquired by cashing out his leave entitlements and from his partner, Paula Lancaster’s income. There was no evidence independent of the appellant to support this evidence. This evidence was demonstrably false as confirmed by the relevant documentary evidence including the banking records of CSM IT and the real estate agents.

93. In each case the financial advantage to the appellant was the value of the rent paid and the disadvantage to the NUW was the value of the rent paid together with the additional costs rendered in the false invoices to cover CSM IT’s GST and tax liability.

94. I find that the prosecution has proved in respect of each of these offences beyond reasonable doubt the necessary elements of the offence. The dishonest deception was that the false invoices were genuine invoices for which NUW was responsible. There was no suggestion by the appellant that it was part of the NUW’s obligation to provide any of this accommodation for him or his family.

95. Sequence 24, 25, 26, 27 and 62 – Each related to allegedly false invoices from CSM IT which Mr Millena said were provided at the request of the appellant for:

Seq 24 - A short term job for the appellant’s step-son, Jesse Lancaster.

$1,848.

Seq 25 – A donation to a Junior Sports Club associated with the appellant. $700.

Seq 26 – Botox treatment for the appellant and Ms O’Brien.

$1,862.30

Seq 27 – Electronic entertainment equipment for the Mulgoa property. $5,215.

Seq 62 – A camera for the appellant to take on holiday.

$4,984.95.

101. Sequence 24 and 25 were particularised as dishonestly causing a financial disadvantage to the NUW and Seq 26, 27 and 62 as dishonestly obtaining a financial advantage from the NUW.

102. On the basis of all of the evidence and the summary as provided by the prosecution “Appeal Submissions” I accept beyond reasonable doubt that Mr Millena was asked by the appellant to provide a false invoice in respect of each of these matters and complied with those requests. I accept that the prosecution has proved beyond reasonable doubt in each case the relevant elements constituting the offence including that none of the payments were for NUW purposes.

103. Sequence 46 – Mr Millena’s evidence was that on a number of occasions the appellant would contact him and ask for a sum of cash to be provided to him. A code was used where “Burger” meant $1000. One to five “burgers” would be asked for and Mr Millena would withdraw the cash from his personal account and provide it to the Appellant at McDonalds or elsewhere. On one occasion he delivered the cash to the NUW premises and on one occasion left it at his office in a mobile phone box for the appellant to collect or have collected. He identified three withdrawals totalling $13,000 and an invoice from his business, Access Software Developing Pty Ltd, to NUW for computer related work relating to one only of the cash amounts provided (Ex 83). Mr Millena withdrew $4000 on 4 May 2015 and the false invoice to the NUW, dated 4 May 2015, was for $5,950 plus GST of $595 totalling $6,545.

104. This charge was particularised as the appellant obtaining a financial advantage of $6,545 by way of the false invoice. On the evidence the Appellant only received a financial advantage of $4,000. The NUW, if it paid the invoice would have suffered a financial disadvantage of $6,545. No specific evidence was given or document tendered during Mr Millena’s evidence that demonstrates a payment by the NUW on or after 4 May 2015 of $6,545.

105. Exhibit 32 consists of the Commonwealth Bank statements of the NUW from 1 January 2010 to 17 April 2015. Those statements record that on or after 4 May 2015 the first payment to Access is on 21 May 2015 in the amount of $5,700.

106. While I accept the evidence of Mr Millena that he provided cash on occasions at the request of the appellant and that the arrangement was that he was reimbursed to his business by the provision of an inflated false invoice and that consideration might be given to amending the CAN or charge I am in the circumstances unable to find the particular offence pleaded beyond reasonable doubt in the absence of evidence of payment of the invoice by the NUW. Accordingly I find the prosecution has failed to prove all of the elements of Seq 46.

107. Sequence 47 – Mr Millena gave evidence that the appellant wanted to buy a Harley Davidson motor bike from him and that they agreed on a price of $35,000. The NUW was to pay for the bike through false IT and computer invoicing. and Mr Millena identified 12 invoices from Access Software between 4 June 2012 and 6 December 2012 that totalled $64,776.80 which were in part to cover the $35,000 purchase in May/June 2012.

108. Ms O’Brien confirmed that the appellant bought a Harley Davidson motor bike and kept it for a time at the NUW office and directed her to pay toll notices he had received as a result of riding the bike.

109. While the appellant confirmed that he liked motor bikes and owned several, he denied purchasing the bike. As to the bike being at the NUW premises, he claimed that Mr Millena had ridden it there one day, and as it rained simply left it there for “ages” (T 412).

110. The bike was registered in the name of the appellant’s brother in law, Darren Ellis (Ex 84). Exhibit 84 also contains a series of emails between Mr Millena, Chelsea Bennett (Administration Manager, CMS IT) with some being copied to Ms O’Brien initially seeking the appellant’s details for registration purposes but eventually indicating the bike referred to by its registration number was to be registered to Darren Ellis.

111. Darren Ellis gave evidence that he was offered the bike but could not afford it so it was registered in his name and a friend of his paid the appellant for the bike. Mr Ellis was not an impressive witness.

112. I accept that the evidence proves beyond reasonable doubt the elements of the offence.

Use of the NUW Credit Card for Personal Expenses

Sequence 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 28, 36, 37, 38, 39, 40, 41, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 61

113. In each case the deception was described as the use of a corporate credit card to dishonestly obtain a financial advantage in a particular sum of money of NUW funds for personal use.

114. Some were rolled up charges where the deception was stated as occurring between the dates of the first transaction and the final transaction at Granville (Seq 1, 2, 5, 6, 7, 8, 12, 13, and 41), the NUW office. Each of the other sequences is alleged to take place on a specific date at a variety of specified places.

Seq 3 – Cambridge Park

Seq 4 – Berkshire Park

Seq 7, 10, 11 & 28 – Penrith

Seq 15 – Cronulla

Seq 16 - Killara

Seq 17 - Emu Plains

Seq 18, 36, 37, 38, 39, 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58 & 61- Granville.

115. The appellant submits that the prosecution case was “… that the deception occurred at the point of transaction and the benefit was the obtaining of NUW funds at that point”.

116. The appellant further submits that:

1. The appellant never received any NUW funds to his financial advantage.

2. There was no evidence anyone had been deceived by the use of the credit card at the point of sale or that any benefit received was causatively connected to the deception.

117. The use by the appellant of an NUW credit card dishonestly for non-union purposes was the commencement of a process of deception which concluded with the eventual payment of the statement issued by the bank for the use of the credit card by Ms O’Brien, the appellant or any staff member of the NUW who from time to time may have been directed to deal with such payments. It was the NUW corporation that had to be deceived not the individual vendor who supplied merchandise on a credit card sale to the appellant.

118. The fact that some of the charges are specified as occurring at the time and place of purchase (i.e. Berkshire Park, Penrith, Cronulla) and some at the time of payment of the credit card payment by the NUW at Granville is not material or a fault in the prosecution case as the deception was ongoing.

No Evidence from any Person as to being Deceived.

119. A repeated submission on behalf of the appellant in the “Further Outline of Submissions for the Appellant”, dated 28 May 2020, in respect of many of the sequences is: “There is no evidence from any person as to being deceived.”

120. Section 192E(1)(b) criminalises dishonestly obtaining a financial advantage “by any deception”. The section does not, in terms, require an identified person to be deceived, merely that the obtaining of the financial advantage be “by any deception” and that it be effected “dishonestly”. The word “person” is not used in s 192E(1)(b) which tells against any such limitation: cf. s 21(1) of the Interpretation Act 1987 (NSW). In a criminal action, the entity deceived (in this case, the NUW) is identified as part of the presentation of the Crown case. That there be a particular person identified is not, however, an element of the offence. (See Restricted judgement R v SKL; R v JY; R v XGL [2019] NSWCCA 43 at (28 and following, 68, 69).

121. Where the victim of the deception is a corporation, there may be a person who can be identified as the relevant human agent of the corporation who was deceived. However, there is no reason in principle to import a requirement into every case from the common mode of proof in the usual case. Even if individual human agents of the company were deceived, it is not necessary that, if called at all, they be asked about their thought processes, since the inference can be drawn without such evidence.

122. The categories of case in which it is not necessary to call a person to prove that the mind of the operative person (in some cases, a corporation) was deceived include cases where the corporation was deceived because of the deception of one or more of its employees.

Participate in a Criminal Group – Between 13 March 2010 and 26 October 2015

123. Sequence 20 – I find beyond reasonable doubt that between 13 March 2010 and 26 October 2015 on the basis of the evidence before the Court that a scheme was developed between the Appellant, Mr Millena and Ms O’Brien whereby CSM IT and/or Access Programing would pay the personal expenses of the appellant and the co-offender, Ms O’Brien, including amongst other things the rent of properties in which the appellant lived over a period of two years, the purchase and servicing of private motor vehicles (including an Audi used by Ms O’Brien), botox treatment, employment of the appellant’s daughter’s partner at CSM IT, cash payments and other personal items. The cost of these items were recovered through false invoicing by CSM IT and/or Access Programing for IT services that had not been provided or were provided with an additional cost to the NUW to the benefit of CSM IT and/or Access Software. The appellant authorised and approved the payment of the invoices on behalf of the NUW from the NUW’s general account to the financial disadvantage of the NUW and to his and/or Ms O’Brien’s and/or Mr Millena’s financial advantage. The appellant knew that the invoices were fraudulent and provided material benefits to him, Ms O’Brien and Mr Millena (CSM IT/Access Software) and material disadvantages to the NUW.

124. This was part of a scheme or system established by the appellant for the purpose of benefiting the three co-offenders. On occasions in respect of larger amounts, the false invoices were spaced out over time. As evidenced by Mr Millena, Access Software was established specifically to falsely invoice only in respect of specific benefits provided to the appellant and to reduce the exposure of CSM IT from the criminal conduct of the group.

125. The appellant’s role in this scheme was to accept and authorise payment of the false invoices, knowing that they were false and were to reimburse Mr Millena, and/or CSM IT and/or Access Programming.

126. The appellant established and directed the fraudulent activities of the criminal group against the NUW and received a material benefit from the criminal activity, as did the co-offenders and on occasions the appellant’s relatives. Of particular relevance to this SEQ 20 are Sequences 22 to 33, 35 to 39, 47 and 62.

127. In short, there is overwhelming evidence of the appellant’s commission of the offence of participating in a criminal group by directing the activities of the group, knowing that it was a group and knowing that his participation contributed to a criminal activity, to wit fraud upon the NUW.

The Submissions in General

128. The prosecution submissions address each alleged offence in detail as to the evidence the prosecution relies on and the appellant’s response in evidence.

129. The appellant’s submissions, apart from criticism of the magistrate that is not relevant on appeal, address the alleged offences by general groupings including “Credit Card for personal expenses”, “EFT for personal expenses”, “False Invoices”, “Cheque used to pay personal expenses” and “Criminal Group (CMS IT Scheme with Millena relating to the conduct the subject of the ‘false invoice’ sequences” and general submissions such as “What was the Advantage Obtained?”, “What was the Deception and When did it Occur?”, ”The Alternative Case that was not run by the Prosecution”, “Why the EFT charges must fail”, “Why certain of the False Invoice Charges must Fail” and “Why the Cheque Charge must Fail”.

130. No submission has been made on behalf of the appellant that the prosecution summary of the individual charges and the evidence given at hearing is wrong or misleading. That is, the appellant’s submissions on appeal do not contest the accuracy of the allegation and relevant evidence in respect of each sequence.

131. I have had the benefit of those submissions, the transcript and exhibits.

Sequences not yet resolved

132. The sequences that I have not yet indicated a judgement on appeal in respect of are: 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 28, 30, 31, 32, 33, 35, 37, 38, 39, 40, 41, 43, 44, 45, 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63.

To repeat in short - Seq 1, 3 to 18, 28, 30 to 33, 35, 37, 40, 41, 43 to 45, 48, 49, 51 to 63.

133. I will not express my reasons in respect of these individual sequences as separate conclusions. Suffice it to say that each has been individually considered and I accept in respect of each that the appellant, committed the offence charged, as the prosecution has beyond reasonable doubt proved the elements of each individual charge, whether it be of obtaining a financial advantage from the NUW or causing a financial disadvantage to the NUW. As previously referred to, the appellant as a witness in his own defence had no credibility. The relevant evidence in relation to each of these offences is appropriately summarised in the prosecution submissions and is in each case convincing, although I have also taken into account the whole of the evidence, both oral and documentary.

Sequences Previously Resolved

1. Sequence 2, 19, 22, 23, 24, 25, 26, 27, 29, 47 and 62 are sequences where I have already referred to the prosecution as having proved beyond reasonable doubt each of the elements of the individual offence.

2. Sequence 46 is a sequence in respect of which I have already indicated that I do not accept that the prosecution has proved the elements beyond reasonable doubt and I will quash that conviction.

3. Sequence 64 was accepted by the prosecution as not having been proved and I have already indicated that I will quash that conviction.

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Decision last updated: 18 November 2020