Bell v The King - [2025] SASCA 97

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
BELL v THE KING
[2025] SASCA 97
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice David)
28 August 2025
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction.

After a trial by jury, the appellant was found guilty of 20 counts of theft and five counts of aggravated dishonest dealings with documents contrary to sections 134 and 140 of the Criminal Law Consolidation Act 1935 (SA) respectively.
The property the subject of the 20 counts of theft was owned by two government funded associations in which the appellant was heavily involved. On the prosecution case, by transferring moneys from these associations into conduit bank accounts and subsequently disbursing those moneys into his personal accounts, the appellant was operating a system (the System) which enabled him to misappropriate over $400,000. The prosecution’s circumstantial case at trial invoked the concept of the System and relied upon its features as circumstantially probative of the appellant’s offending, and in particular the dishonesty inherent in that offending.
The appellant appeals on eight grounds. Grounds 1 to 6 involve complaints that the trial judge’s directions were inadequate in relation to: (i) evidence of the System (Grounds 1-3), (ii) evidence of post-offence conduct (Ground 4), (iii) evidence of the appellant’s motive to offend (Ground 5), and (iv) the element of ownership for the theft offences (Ground 6). The appellant also complains that the judge’s summing up did not adequately address the real issues in the case (Ground 7) and that the jury’s verdicts on Counts 1 to 4 were unreasonable (Ground 8).
Held, per the Court, granting permission to appeal, but dismissing the appeal:
1.As to Grounds 1 to 4, the judge’s directions were inadequate and resulted in a miscarriage of justice.
2.As to Grounds 5 and 6, the judge’s directions were sufficient to ensure the jury understood both the evidence of the appellant’s financial motive to offend and the ownership element of the theft offences. Grounds 5 and 6 are dismissed.
3.As to Ground 7, the judge’s summing up was adequate and did not give rise to a miscarriage of justice. Ground 7 is dismissed.
4.As to Ground 8, it was open to the jury to find that the appellant acted dishonestly in making the payments the subject of Counts 1 to 4 such that the verdicts were not unreasonable. Ground 8 is dismissed.
5.Applying the proviso, the evidence established beyond reasonable doubt the appellant’s dishonesty, and ultimately guilt, in relation to each of the charged offences, such that there was no substantial miscarriage and the appeal should be dismissed.

Criminal Law Consolidation Act 1935 (SA) ss 137, 140; Evidence Act 1929 (SA) ss 34, 34P(1), 34R, referred to.
AK v Western Australia (2008) 232 CLR 438; Alford v Magee (1952) 85 CLR 437; Brawn v The King [2025] HCA 20; BRS v The Queen (1997) 191 CLR 275; Dansie v The Queen (2022) 274 CLR 651; De Gruchy v The Queen (2002) 211 CLR 85; De Silva v The Queen (2019) 268 CLR 57; Dent v The King [2024] SASCA 12; Dhanhoa v The Queen (2003) 217 CLR 1; Doney v The Queen (1990) 171 CLR 207; Edwards v The King [2023] SASCA 113; Gassy v The Queen (2008) 236 CLR 293; Gately v The Queen (2007) 232 CLR 208; Hamilton v The Queen (2021) 274 CLR 531; Hill v The Queen [2021] SASCA 83; Hinrichsen v The King [2023] SASCA 111; Hofer v The Queen (2021) 274 CLR 351; Huynh v The Queen (2013) 87 ALJR 434; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; MDP v The King [2025] HCA 24; Nudd v The Queen (2006) 80 ALJR 614; Orreal v The Queen (2021) 274 CLR 630; Pell v The Queen (2020) 268 CLR 123; Pemble v The Queen (1971) 124 CLR 107; Perara-Cathcart v The Queen (2017) 260 CLR 595; R v Adamson [2018] SASCFC 114; R v Allen (2011) 109 SASR 396; R v Baden-Clay (2016) 258 CLR 308; R v Ball [1911] AC 47; R v Bell (No 4) [2023] SADC 78; R v Ferguson [2018] SASCFC 130; R v Getachew (2012) 86 ALJR 397; R v Hillier (2007) 228 CLR 618; R v Perks (1986) 43 SASR 112; R v Singh [2019] SASCFC 51; R v Tran [2017] SASCFC 99; R v Wildy (2011) 111 SASR 189; RPS v The Queen (2000) 199 CLR 620; SKA v The Queen (2011) 243 CLR 400; R v ZT [2025] HCA 9; TKWJ v The Queen (2002) 212 CLR 124; Weiss v The Queen (2005) 224 CLR 300; Whitehorn v The Queen (1983) 152 CLR 657; Wilde v The Queen (1988) 164 CLR 365; Zoneff v The Queen (2000) 200 CLR 234, considered.

BELL v THE KING
[2025] SASCA 97
Court of Appeal - Criminal: Kourakis CJ, S Doyle and David JJA

KOURAKIS CJ: I have had the benefit of reading the judgment of S Doyle and David JJA (the plurality), and have adopted in this judgment the defined terms and acronyms their Honours have used. For the reasons given by their Honours, I too would dismiss Grounds 5 to 8 of the Notice of Appeal. I am satisfied, for the reasons given below, that the Judge’s directions did not adequately instruct the jury on the proper use of the evidence of what has been described as ‘the System’, nor on the uses of the May 2016 letter. However, because the inferences which can be drawn from the largely uncontested circumstantial evidence adduced by the prosecution exclude any possibility that Mr Bell acted honestly, those failings in the summing up have not occasioned a substantial miscarriage of justice. I am satisfied that the evidence proves Mr Bell’s guilt on all counts beyond reasonable doubt. For that reason, I too would apply the proviso and dismiss the appeal.
I write separately only because I take the view that the inadequate directions were, to a large extent, the product of the prosecution treating the System as an intermediate fact which had to be established before its constituent elements could be relied on. The System was not an intermediate fact in that sense at all. It was no more than an unhelpful reification of the processes of applying abductive and inductive reasoning to the circumstances of the financial transactions in which Mr Bell undoubtedly engaged. Neither the prosecution, nor the Judge, adequately explained the application of that reasoning to the many items of circumstantial evidence on which the prosecution case relied.
The essential aspects of the System are summarised in paragraph 36 of the plurality judgment. The invoicing, money payments and transfers set out in those dot points were not disputed. They were simply the means by which Mr Bell dealt with the funds which the DECD had provided for the operation of the learning centres, the ILC and the MCLC. Those mechanical aspects of the System were only probative of Mr Bell’s dishonesty because there was no evidence of a legitimate reason for those funds to be made available to Mr Bell for his personal use by transferring them into accounts which he and his wife controlled. The absence of such evidence raised an inference that the transactions were dishonest. That inference of dishonesty was strengthened by the evidence that the net balance of the transfers between Mr Bell’s personal accounts and the accounts of SEETA and LCETA, prior to the repayment of $224,820 under cover of the May 2016 letter, favoured Mr Bell by as much as $436,000.
The fourth dot point of the plurality’s summary of the System assumes that the dealings were dishonest and, for that reason, attributes to Mr Bell the purpose of ‘taking steps to conceal, and permit the continuation of, his offending’ when he provided incomplete or incorrect information to an auditor and fabricated minutes of LCETA meetings to record resolutions that had not been made. However, this last element of the System is premised on Mr Bell having dishonestly dealt with the funds. The reasoning is circular and, again, is a product of treating the System as a fact to be proved. Nonetheless, the evidence concerning the auditor and the minutes are important items of circumstantial evidence. There was strong evidence on which the primary facts, including misinforming the auditor and fabricating minutes, could be made. Mr Bell was more likely to have engaged in that conduct if the transactions were dishonest than if there had been legitimate reasons for the transfers. That process of inductive and abductive reasoning also supports an inference that the transactions were dishonest, but this was not explained to the jury.
The reasoning process which gives circumstantial evidence its probative force, without assuming the ultimate fact to be proved, was distilled by Wells J in The Queen v Sutton (No 2).[1] His Honour articulated the following principles:[2]
1.   There are no categories of circumstantial evidence, and no attempt should be made to force any particular example of it into a mould. The criteria by which its cogency as proof is to be evaluated are drawn from life itself, and not from the law.
2.   The probative force of circumstantial evidence depends on the united force of all the circumstances put together. So evaluated, a body of circumstantial evidence may attain a high degree of cogency, notwithstanding that its constituent items are, individually, colourless. Moreover, there may be two or more stages of drawing inferences before a final conclusion is reached, and a medial inference drawn from a body of circumstantial evidence may form part of the primary material from which further inferences are drawn.
3.   In particular, there may be some cases in which, as Dixon CJ once put it in argument, the relevance and cogency of no single piece of evidence becomes apparent until the very last item of evidence is locked into place, whereupon the relevance and cogency of all items are demonstrated, uno icto. In such cases, it is to misconceive the very nature of circumstantial evidence to impugn the admissibility of the evidence by contending that it is necessary to assume, at the moment when objection is taken to a particular item of such evidence, that the case, in proof of which the evidence was tendered, was made out in order to render it admissible.
[1]     The Queen v Sutton (No 2) (1983) 32 SASR 533 (‘Sutton’).
[2]     Sutton at 562-563.
I draw attention to the exposition in the second paragraph of the process of drawing a medial inference which, in combination with other evidence, may support a further inference. The process may involve finding an intermediate fact before the further inference is drawn, but it may also allow the further inference to be drawn without such a finding.
The first probative use of the evidence of the System on which the prosecution relied was that whilst the individual payments or dealings might, when considered in isolation, appear ‘colourless’, the dishonest character of those transfers became apparent when considered in the context of the evidence as a whole. It is not at all obvious to me how the individual transactions in this case could be described as colourless. Be that as it may, the reference to ‘individually colourless’ items of circumstantial evidence in paragraph 2 of the above cited passage from Sutton should not be thought to suggest that circumstantial reasoning can only be applied to colourless items of evidence. Indeed, the reasoning has even greater force when applied to circumstances which, even when considered separately, support an inference of guilt.
The second probative use articulated by the prosecution was to exclude any possibility that the transfers were made accidentally or that there was some innocent purpose for any individual transfer. The second use describes the inductive reasoning which gives the items of circumstantial evidence their probative force. The first use is the conclusion to which those inferences lead.
Wells J went on to illustrate how an inference of dishonesty can be drawn in the case of an offender charged with a series of theft or deception offences:[3]
In many cases where some species of fraud is alleged, proof of mens rea is offered in the form of evidence of conduct by the accused, repeated in several transactions in a very similar form. That which might, viewed in isolation, appear to be a pardonable mistake or venial irregularity may then appear, in all the circumstances, to be fraudulent if the mistake or irregularity happens invariably to work to the financial advantage of the accused. It is usually put that the similarity of the acts may provide a nexus of proof which excludes accident or mistake as an innocent explanation, and leaves mens rea as the only reasonable interpretation. It is true that similarity – a striking similarity, if you will – may provide such a nexus. I am unable to understand, however, why repetition of acts of the same general description can provide proof of that kind only where there is a striking similarity. If the facts were that the accused, in transactions of different kinds in the course of his business, was responsible for bookkeeping errors which he claims were innocent mistakes, or immaterial irregularities, it seems to me that, if the result of each error was to benefit him – if, in short, that was the way he ran his business, or his particular responsibilities in the business, common sense, based on probabilities in human affairs, would lead to the conclusion that the benefits that flowed from each mistake or irregularity could not, when considered cumulatively, be explained away as mere coincidence. There could be no misgiving about the ruling if the errors or irregularities were committed in the course of business procedures leading up to a single financial advantage to the accused, and I can see no reason why there should be any difference if they led up to such an advantage in each of several cases. The setting of the business provides the predominant nexus or unifying force.
(emphasis added)
[3] Sutton at 565-566.
The reasoning in the underlined sentences strongly supports the drawing of an inference that Mr Bell acted dishonestly in the circumstances of this case, but it was not explained in that way to the jury so that the jury could assign it the weight which they considered it deserved.
The evidence of the transactions in which Mr Bell engaged and their effect, which was to make funds allocated for the operation of the ILC and MCLC available for his personal use, are items of circumstantial evidence which when considered together are capable of excluding any possibility that Mr Bell was acting dishonestly. The transactions, even if considered in isolation, were neither neutral nor colourless because they were all calculated to benefit Mr Bell and disadvantage SEETA and LCETA. Moreover, there was no evidence of a legitimate reason to transfer the funds into Mr Bell’s personal accounts either directly or through a conduit account. An inference of dishonesty therefore arises in the circumstances of each transaction. That inference is strengthened with each additional diversion of funds. However, the Judge did not explain that process of reasoning to the jury so that it could assign it such weight as it saw fit. Nor did the Judge direct the jury that it should be alert to possible innocent reasons which might not appear on the face of the evidence.
The May 2016 letter returning funds after the completion of the Mount Shank project is also an important item of circumstantial evidence. The letter was written by Mrs Bell, but it is open to find that it is connected to the recorded conversations between Mr Bell and Ms Redmond, and between Mr Bell and his wife. The letter asserted that the sources of the money returned were funds provided for, but not expended on, the renovation of the Mount Shank Hall.
That assertion was proved false; the source of the funds was the shares purchased by funds diverted from SEETA’s operating accounts. One probative use of the letter was its very failure to give any innocent explanation for the diversion of those funds which were being returned. Mr Bell’s false assertion as to the source of the returned funds rendered it improbable that he had another reason, one that was innocent, for transferring the money. The false attribution of those funds to a source, other than the diverted funds, was more likely to be made if Mr Bell had no valid reason to use the diverted funds to purchase shares. An inference therefore arises that Mr Bell’s conduct was dishonest, but it was the Judge’s obligation to explain the available reasoning to the jury. As the judgment of the plurality explains, there were alternative explanations for writing the May 2016 letter.
The evidence also invited, and properly supported, consciousness of guilt reasoning. Directions as to all uses were necessary, and reasonable alternative explanations should have been brought to the jury’s attention.
There are many examples of the reasoning to which I have referred which might have been employed and explained to the jury. However, I develop the approach I have adumbrated commencing with Counts 5 and 6, because they charge theft in respect of transfers not associated with an invoice rendered by Mr Bell. They are founded in a series of transfers made on 20 July 2010. First, a payment was made from LCETA to the personal account of SAILC, established by Mr Bell. SAILC, which was a name deceptively similar to the DECD’s Independent Learning Centre. The sum of $22,000 was deposited by cheque from LCETA into the SAILC bank account. Mr Bell was an office holder of LCETA. There is no reason, on the face of the transaction or from the context of the relationship between the ILC, LCETA and the Department, for any part of those funds set aside for the operations of the ILC to be deposited in the SAILC account. That, in itself, raises an inference of dishonesty in the absence of evidence of any legitimate reason to do so. The inference is substantially strengthened by the payment on the same day of $17,000 from SAILC into the personal account of Mr Bell (Count 5). The inference is further strengthened by the fact that LCETA’s bookkeeper, Ms Hill, was not made aware of the nature of the SAILC account or its transactions. Ms Hill simply knew that it was not an account established by LCETA and was not an account over which LCETA had any oversight.
On that evidence alone the prosecution established a strong circumstantial case that the transfers in Counts 5 and 6 were procured dishonestly. Insofar as there remained a possibility that an honest reason existed for the transfers, it is permissible to consider the evidence that Mr Bell invoiced the DECD for work done in connection with the ILC.
Mr Bell was employed by the DECD to do the work he performed in connection with the learning centres. He also held his position as an office holder of SEETA, and then LCETA, by reason of that employment. There was no evidence of any other contractual relationship between DECD and Mr Bell, or even of a request that he perform work for the ILC, independently of, and in addition to, his duties as an officer of DECD. Nor was there evidence of communication which Mr Bell might have mistaken for such a request or contract. In those circumstances, an inference arises that the invoices were issued dishonestly. The dealings connected to the theft charge, as set out in the subject of Counts 1 to 4, are admissible on Counts 5 and 6 because of the close temporal and circumstantial connection between those counts and Counts 5 and 6.

Count 7 charged theft by a transfer of $11,000 from SAILC to Mr Bell’s personal account. It was described by Mr Bell as ‘re-imbursement 1 Troy Bell’. However, there is no explanation for the deposit of $11,000 by LCETA into the SAILC account, which preceded the aforementioned transaction. The absence of any explanation supports the inference that there was no legitimate purpose for the transfers between LCETA and SAILC.
Count 8 charged the theft of $130,000 paid directly from LCETA to Mr Bell’s personal account with a description ‘investment acc Troy Bell’. Some of that money was used to pay Mr Bell’s credit card debt. Once again, it is difficult to imagine any legitimate reason for LCETA using Mr Bell’s personal account, from which he could easily transfer and did transfer funds to cover credit card debt, as an investment account. The very size of the transfer further supports an inference of dishonesty.
Standing back and considering Counts 5 through to 8 compendiously, the only available conclusion is that Mr Bell acted dishonestly. Of course, it is possible to go further and apply similar reasoning to the other transfers, to the provision of false invoices, the falsification of minutes, the misinformation to the auditor and the false claim in the May 2016 letter.
I am satisfied that the diversion of money intended by DECD to support the operations of the ILC and MCLC to the personal use of the Bells on the many charged occasions, together with the misinformation, falsified minutes and the May 2016 letter, combined to exclude any reasonable possibility that there was an honest purpose for any of the transactions.
The offences of dishonestly dealing with documents are proved beyond reasonable doubt because any possibility that the invoices honestly claimed amounts chargeable by EYS, despite the direct evidence to the contrary, is excluded by the evidence that Mr Bell dishonestly diverted funds for his personal use.
Reasoning inductively, and abductively, from all of the circumstantial evidence, inexorably leads to the conclusion that Mr Bell is guilty on all counts.
S DOYLE AND DAVID JJA: After a lengthy trial, a jury found the appellant guilty of 20 counts of theft (Counts 1-9 and 11-21)[4] and five counts of aggravated dishonest dealing with documents (Counts 22-26).[5] He was found not guilty of a further count of aggravated dishonest dealing with a document (Count 10).
[4] Contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
[5] Contrary to s 140 of the CLCA; aggravated by reason of the appellant abusing a position of authority or trust in committing the offence.
The appellant now seeks to appeal his convictions, relying upon multiple grounds of appeal. As elaborated upon below, the grounds include contentions of inadequacy in the judge’s directions on several topics: in particular, the evidence of discreditable conduct involving an alleged system of payments and dealings said to provide circumstantial context for a finding of dishonesty in relation to the charged conduct (Grounds 1-3); the evidence of various items of post-offence conduct (Ground 4); the evidence of the appellant’s motive to offend (Ground 5); and the element of ownership for the theft offences (Ground 6). They also include a more general complaint that the judge’s summing up did not adequately address the ‘real issues’ in the case (Ground 7), and a complaint that the jury’s verdicts on Counts 1-4 were unreasonable or unsupported having regard to the evidence (Ground 8).
For the reasons which follow, whilst the complaints in Grounds 5-8 have not been made out, aspects of the complaints advanced in the context of Grounds 1-4 have been made out. However, in circumstances where we are satisfied that the evidence established beyond reasonable doubt that the appellant committed the offences of which he was convicted, this is an appropriate case in which to apply the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA), and dismiss the appeal.
Our reasons are organised as follows:
Overview
The appeal
The prosecution case
Financing of the ILC and MCLC through not-for-profits
SEETA and LCETA
Steps to separate the ILC from SEETA
The theft charges
Count 1: theft of $4,000 (9 July 2009)
Count 2: theft of $87,317 (9 September 2009)
Further steps to separate the ILC from SEETA
The LCETA ‘investment account’
Transfers of LCETA funds to SAILC and then personal accounts
Counts 3 & 4: thefts of $7,000 and $10,052 (17 May 2010)
Counts 5 & 6: thefts of $17,000 and $5,000 (20 July 2010)
Count 7: theft of $11,000 (25 October 2010)
Count 8: theft of $130,000 (22 November 2010)
Count 9: theft of $127,000 (7 December 2010)
Count 10: dishonest dealing with a document (8 December 2010)
Count 11: theft of $55,000 (20 December 2010)
2011 and the creation of the Millicent Community Learning Centre
Count 12: theft of $100,000 (21 February 2011)
Purchase of the Brolga Street property
Count 13: theft of $90,000 (18 May 2011)
Count 14: theft of $115,000 (14 July 2011)
Count 15: theft of $75,085 (8 August 2011)
Count 16: theft of $104,990 (6 October 2011)
Count 17: theft of $140,000 (28 December 2011)
Memorandum of understanding between LCETA and DECD (1 January 2012)
Count 18: theft of $37,000 (7 February 2012)
Count 19: theft of $130,000 (27 February 2012)
Count 20: theft of $156,000 (3 April 2012)
Count 21: theft of $180,240 (29 May 2012)
A pattern of payments, repayments and personal benefit
The creation of EYS
Counts 22-26: aggravated dishonest dealing with documents
Winding down LCETA
The appellant resigns from DECD
Events from 1 July 2013
The Mount Schank Hall project
The letter returning $224,820 of unspent funds
ICAC investigation and intercepted telephone calls
The ILC and MCLC funding model
The defence case
The summing up
Prosecution request for further directions
Grounds 1, 2 and 3: the System
Ground 4: post-offence conduct
The May 2016 letter
Other post-offence conduct
Ground 5: motive
Ground 6: ownership
Ground 7: adequacy of the summing up
Ground 8: unreasonable verdict
The proviso
Conclusion
Overview
It is helpful to commence with an overview of the context in which the appellant’s offending was alleged to have occurred.
Throughout the period from July 2009 to March 2013, the appellant was employed by the Department for Education and Child Development (DECD). He resigned from this employment in order to pursue a career in politics on 15 March 2013. Whilst the bulk of the offending occurred during the period of the appellant’s employment by DECD, the final three counts occurred shortly after his resignation.
From 2007, the appellant was involved in the establishment, by Millicent High School (MHS), of off-school campuses in Mount Gambier (known as the Independent Learning Centre (ILC)) and Millicent (known as the Millicent Community Learning Centre (MCLC)). They were established for the purpose of providing secondary educational programs, referred to as Flexible Learning Options (FLO), for students who had become disengaged from formal education and who were otherwise at risk. The programs provided pathways for these students to complete their secondary education and progress to further education, work or apprenticeships.
At relevant times, the appellant was a chairperson and public officer of two not-for-profit incorporated associations, South East Education and Training Association (SEETA) and Limestone Coast Education and Training Association (LCETA), which were involved in the funding of the ILC. He became involved with SEETA in 2007, and with LCETA from its establishment in May 2009.
Broadly, the prosecution case was that SEETA and LCETA were vehicles for providing funding to the ILC and MCLC. Both of these associations received funds which were required to be used in accordance with their Constitutions, and hence for educational purposes. Relevantly, the funds were to be applied for the educational purposes involved in supporting the programs being offered to students attending the ILC and MCLC.
In February 2009, the appellant registered South Australian Independent Learning Centre (SAILC) as a business name. He did so in his own name. In May 2009, and then again in February 2010, the appellant opened NAB bank accounts in SAILC’s name (the SAILC accounts).
The appellant and his wife, Michaela Bell, had been the shareholders and directors of a private company, Bellistic Pty Ltd, since its registration in 2001. In December 2012, the appellant caused Bellistic to register the business name Education and Youth Services (EYS). It was intended that EYS would take over the functions performed by LCETA in respect of the ILC and MCLC from about six months later (that is, for the financial year commencing 1 July 2013).
On the prosecution case, the appellant committed the charged offences of theft by dealing with moneys owned by SEETA (Counts 1-2) or LCETA (Counts 7-9 and 11-21). This was principally done by transferring moneys from these associations into one or other of the SAILC accounts. These moneys were then transferred into the appellant’s personal accounts and subsequently disbursed. They were not applied for the prescribed educational purposes of SEETA or LCETA. A central component of the prosecution case was that the SAILC accounts functioned as conduit accounts. On two occasions, payments were made directly from LCETA into the appellant’s personal accounts (Counts 8 and 13), and hence without the use of the SAILC accounts.
It was also alleged that the appellant dishonestly dealt with documents by creating false invoices which were issued to MHS in the name of LCETA (Count 10) and EYS (Counts 22-26).
The prosecution case at trial included a significant body of evidence which was alleged to establish that the appellant had a system (the System) which enabled him to offend. The characteristics of the System are addressed in more detail later in these reasons, but in essence it involved the appellant:
·through the not-for-profit associations (SEETA and LCETA), seeking and obtaining payments from MHS for services to be provided by the ILC and MCLC, and doing so in advance and in amounts which involved overcharging, with the result that there were excess funds available which the appellant could skim;
·using invoices and then cheques, electronic transfers and conduit accounts (in the name of SAILC) to effect transfers of moneys from SEETA and LCETA into the appellant’s personal accounts, but in a manner (particularly through the use of an ‘investment account’) which had the outward appearance of payments for legitimate purposes, and to legitimate destinations, associated with the ILC or MCLC;
·from time-to-time transferring moneys back into SEETA and LCETA accounts, often through the SAILC accounts, so as to permit the educational programs operated by the ILC and MCLC to be administered unaffected and to give an appearance of legitimacy to the ‘investment account’; and
·taking steps to conceal, and permit the continuation of, his offending, including by providing incomplete or incorrect information to the auditor (to regularise LCETA’s financial activities), and by fabricating minutes of LCETA meetings (which recorded meetings and other matters which had not occurred, but which gave the appearance of authenticity to LCETA’s financial processes).
The evidence was to the effect that, over the relevant period, more funds were transferred to the personal benefit of the appellant than were transferred back to permit the programs operated by the ILC and MCLC to continue, with an overall difference in favour of the appellant of about $436,000.
The admissibility of the evidence as to the constituent elements of the System was subject to lengthy pre-trial argument before a different judge. The voir dire judge held that this evidence was admissible. Whilst the precise use and significance of the various aspects of the evidence in support of the System differed, his Honour accepted that the body of evidence relied upon as constituting the System was relevant and admissible for the three uses contended by the prosecution.
The first, and primary, use was that the evidence of the System, when considered as a whole, was probative of the appellant’s dishonesty in making the various payments, and in dealing with the documents, the subject of the charges. In particular, the prosecution contended that whilst the individual payments or dealings might, when considered in isolation, appear neutral or colourless, and be difficult to characterise, nevertheless the dishonest character of those payments and dealings became apparent when considered in the context of the evidence as a whole.
The second, and related, use of the evidence was by way of improbability or coincidence reasoning; namely, to rebut any suggestion of accident, thoughtlessness, or other innocent explanation for any of the payments or dealings (including that someone other than the appellant was responsible for the relevant payments or documents).
The third use was that the evidence was relevant to establish and understand the narrative of events. The evidence was said to show an increasing trajectory of offending, consistent with the appellant becoming emboldened over time; and to establish and explain contextual matters, such as the behaviour of persons associated with MHS, SEETA and LCETA in acquiescing in the appellant’s requests for money and directions as to the payment of money.
The prosecution case of dishonesty relied upon the evidence led in support of the System, as well as the substantial overall balance that was transferred for the appellant’s personal benefit. In addition to this evidence bespeaking dishonesty, the prosecution relied upon a motive of greed and financial ambitiousness.
The trial proceeded over a period of three and a half months, and included a large amount of documentary evidence. This evidence was supported and explained by oral evidence from a number of witnesses, including two forensic accountants (Kirsty Summersides and Laurie Williams).
The appeal
The appellant seeks permission to appeal on eight grounds. The effect of the grounds may be summarised as follows.
Grounds 1, 2 and 3 each concern the way in which the judge directed the jury as to the evidence comprising the System. Grounds 1 and 3 complain that the judge failed to adequately direct the jury as to the factual issues arising in relation to the System, including by identifying the essential features of the System and the need to be satisfied of its existence before using it as an item of circumstantial evidence. Ground 2 involves a contention that the judge failed to comply with s 34R of the Evidence Act 1929 (SA), in that his Honour did not adequately identify and explain the permissible and impermissible uses of the evidence of discreditable conduct inherent in the System.
Ground 4 involves a complaint that the judge failed to direct the jury in relation to the alleged lies and other post-offence conduct by the appellant designed to conceal the fact or nature of his conduct the subject of the various charges.
Ground 5 concerns the judge’s failure to give any directions in relation to motive. The appellant contends that in circumstances where the prosecution case relied upon proof of the applicant’s financial motive to prove his intent, it was necessary for the judge to direct the jury in relation to the evidence of motive.
Ground 6 complains that the judge erred in his directions as to the elements of theft. In particular, the appellant contends that the judge failed to accurately direct the jury in relation to the element of ownership, and to instruct the jury that they needed to resolve an issue which bore on that issue (namely, that the SAILC accounts were used merely as conduit account).
Ground 7 involves a more general complaint as to the adequacy of the judge’s summing up. The appellant complains that, in addition to the above matters, the judge failed to direct adequately in relation to the ‘real issues’ in the case, and to relate the law to those issues.
Ground 8 involves a contention that the verdicts on Counts 1-4 were unreasonable or unsupported having regard to the evidence. The appellant contends that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant dishonestly dealt with the moneys the subject of each charge. In particular, he contends that the prosecution case was incapable of excluding, as a reasonable possibility, that the appellant was entitled to the moneys the subject of each count; that the invoices issued by the appellant were legitimate and that the services the subject of each invoice were provided prior to the issue of each invoice.
Given that the issues raised on appeal include whether some of the verdicts were unreasonable (Ground 8) and the potential application of the proviso (in the event that any of Grounds 1-7 are made out), it is necessary to summarise the detail of the evidence at trial, and the prosecution and defence cases.
The prosecution case
The following should be read in light of the overview of the context provided at the outset of these reasons.
The appellant’s offending arose out of his involvement with the finances of the ILC and MCLC. As explained, each was a sub-campus of MHS which was resourced to provide educational programs for students who had become disengaged from traditional schooling.
The appellant became involved with the ILC as an aspect of his employment with DECD at its regional head office. He worked as a ‘transition broker’, a role which involved him working to assist students to transition into employment. It was within his paid DECD employment that the appellant came to be involved in setting up the ILC.
The ILC was set up in 2007 by way of a joint venture between DECD and a not-for-profit organisation which was run by volunteers and called Focus on Youth. This organisation provided seed funding for the first year, but at some point after the ILC had been established, this source of funding was withdrawn. The ILC commenced to be funded through MHS’s FLO funding. The students who attended the ILC were enrolled as MHS students. Whilst some of the people who worked with or knew the appellant tended to credit him with setting up the ILC, and to regard it as his concept or vision, it is unclear how this came to be given the substantial input of various other people at the ILC’s early stages, including other DECD employees.
The first year of the ILC was a success. The manager of the ILC, Robert Barton, worked effectively in engaging students. At the end of this first year, a DECD panel was assembled for the recruitment of an ongoing manager. The appellant was on that panel. The appellant’s friend, Peter Fox, was recruited to replace Mr Barton. Mr Barton moved on to work in a specialist school in the area, focusing on children with disability needs. Mr Fox remained as the manager until the appellant took over that role himself in November 2011. The manager’s position was always a DECD role, payrolled accordingly via a salary from DECD.
Through an early combination of informal processes, the appellant became known as the person in charge of the ILC, both to people who worked there and beyond. Whilst personnel at the ILC and MCLC were responsible for the daily hands-on work with the students, it was in this capacity of acquired informal leadership that the appellant controlled the finances of the ILC and MCLC, with DECD, ILC and MCLC personnel all consulting him in relation to budgetary requests.
As mentioned, it was MHS which provided the funding for both the ILC and MCLC. The staff who approved the funding for the ILC in Mount Gambier predominantly worked at Millicent, about 50 kilometres from Mount Gambier. This was one factor which meant that the staff responsible for the approval and payment of FLO funds (Christopher Davey, the bursar and John Shelton, the principal) became dependent upon the appellant’s assurances regarding what he said was needed by way of funding.

More broadly, it was the prosecution case at trial that the appellant was good with people, trusted and well liked. At relevant times, he was perceived as a man of standing in the community. He was not scrutinised closely by those around him. This was a factor in his ability to offend in the way he did.
Financing of the ILC and MCLC through not-for-profits
Whilst the ILC and MCLC were sub-campuses of the government-funded MHS, and their students were enrolled through MHS, DECD policy constrained how school funds could be applied. For this reason, two not-for-profit associations, SEETA and then LCETA, were used as vehicles to cover the aspects of funding which could not be the subject of the direct application of school moneys. This included the payment of rental agreements and the payrolling of youth worker salaries as well as more minor matters. Teachers at the ILC and MCLC, including the managers, remained supplied by DECD and were payrolled centrally.
During the trial, reference was made to the ‘SEETA era’, being the period from 2008 to 2009 when SEETA was used as the vehicle to provide financial services to the ILC. During this period, Jan Shanahan was the bookkeeper who worked with the appellant in invoicing schools and making payments. Ms Shanahan was a bookkeeper employed by the Limestone Coast Regional Development Board to do work for a number of their organisations, including SEETA. Ms Shanahan worked remotely from the ILC.
The ‘LCETA era’ was used to describe the period from January 2010 to June 2013. During this period, Faye Hill was the bookkeeper who worked with the appellant in invoicing schools and making payments. The appellant was more directive with Ms Hill than Ms Shanahan, and would often provide her with lists of amounts to charge on invoices. Shortly after commencing her work for the appellant, Ms Hill started working from home. She was therefore remote from DECD staff, the ILC and MCLC.
Finally, there was the ‘EYS era’, which covered the period from 2013 to 2014. In 2013, the appellant disengaged from his work with the ILC to focus on his career in politics. Ms Hill remained the bookkeeper during this period.
SEETA and LCETA
As mentioned, the appellant became involved with SEETA as a DECD representative. In 2008 he became the chairperson and public officer.
As an incorporated association, SEETA had the capacity to enter legal relationships. This meant that it was able to be the vehicle through which funding was applied to meet the payroll for the youth workers and the rent payable for the ILC premises. It did so throughout 2008 and 2009.
During this period, Penelope Richardson, a member of SEETA, began to express concerns about various matters, including the use of SEETA as an employer for youth workers and the associated liability that would attract. Ms Richardson voiced those concerns at a SEETA executive meeting which took place on 27 January 2009. It was the prosecution case that the appellant would have been aware of the ongoing scrutiny which Ms Richardson was applying to the use of SEETA to payroll the ILC.
Steps to separate the ILC from SEETA
On 10 February 2009, and so within two weeks of the SEETA executive meeting at which Ms Richardson voiced her concerns about SEETA’s involvement with the ILC, the appellant registered SAILC as a business, in his own name. About three months later, on 2 May 2009, the trading name ‘The Independent Learning Centre’ was issued to the appellant as an individual or sole trader. On the prosecution case, there was no proper reason or basis for the appellant to register this business name in the same name as the sub-campus of MHS. He was an employee of the DECD, and was paid a salary for any work he did at the ILC.
On 16 February 2009, the appellant announced, at a meeting of SEETA, that SEETA would ‘no longer be providing support for the ILC’.
Then, on 16 April 2009, the appellant applied to the Office for Consumer and Business Affairs for LCETA to be formed. Accompanying the application was a statutory declaration, checklist and copy of LCETA’s proposed constitution, which was in almost identical terms to that of SEETA. Of note was rule 23 of the constitution, which provided that: ‘the income and capital of the association shall be applied exclusively to the promotion of its objects and no portion shall be paid or distributed directly or indirectly to members of the association except as bona fide remuneration for services rendered or expenses incurred’.
As explained below, LCETA did not ultimately take over from SEETA until early 2010.
On 19 May 2009, the appellant opened the first of the two bank accounts in the name of SAILC relevant in these proceedings, being a business account with an account number ending in 8152 (referred to hereafter as account -8152).[6] He opened the second account in the name of SAILC on 4 February 2010, being account -5511. This second account was used by the appellant in the LCETA era. These accounts were operated exclusively by the appellant.
[6] Throughout these reasons, we have adopted the convention of referring to bank accounts by the last four digits of their account numbers; for example, account -8152.
The theft charges
The property which was the subject of the theft charges was moneys owned by the not-for-profit associations, SEETA and LCETA. On the prosecution case, the appellant dishonestly dealt with the property of these associations by transferring funds into his personal accounts held by him and his wife and, on one occasion, into an account in the name of his father, Stephen Bell. On all but two occasions (Counts 8 and 13),[7] these transfers occurred via one or other of the SAILC accounts, which the prosecution described as conduit accounts.
[7] In the case of Counts 8 and 13, the charged payments were made directly from a LCETA account to personal accounts.
Count 1: theft of $4,000 (9 July 2009)
On 26 June 2009, $10,000 was transferred from SEETA expense account -8373 to SEETA ILC operating account -0663.
On the same day, the appellant issued ILC invoice 001 to SEETA for ‘School to Work Strategy’ in the amount of $6,000. The Australian Business Number (ABN) on the invoice was registered to the appellant as a sole trader. The School to Work Strategy was a name known to witnesses; however, the evidence of the programs run at the ILC did not show that the appellant had run any separate program with this name.
Further, the prosecution case was that the appellant had no entitlement to issue this invoice or receive funds for work at the ILC. He was salaried as a DECD employee for all of his work there at the time. Further, the ILC was a sub-campus of MHS with no separate legal status of its own. On the prosecution case, it did not make sense for an invoice to be rendered in its name in the context of the overall funding system. The appellant did not pay income tax as a sole trader so as to indicate that he had received business funds in that capacity.
On 6 July 2009, a cheque for $6,000 was drawn from SEETA account -0663. That cheque was then deposited into SAILC account -8152.
On 9 July 2009, $4,000 was transferred from SAILC account -8152 to the appellant’s personal account -4469, held in the names of the appellant and his wife (Count 1), with a payment description ‘troy bell’.
Count 2: theft of $87,317 (9 September 2009)
On 19 August 2009, the appellant issued a further ILC invoice for the School to Work Strategy, for the amount of $87,499. In response, $87,499 was transferred from SEETA account -0663, by way of cheque number 38, into SAILC account -8152. Again, the prosecution case was that the appellant had no legitimate occasion or right to issue this invoice or receive these funds.
On 9 September 2009, $87,317 was transferred from SAILC account -8152 into the appellant’s personal account -4469 (Count 2), with a payment description ‘holding account’.
Further steps to separate the ILC from SEETA
On 27 October 2009, a further SEETA meeting was held and the appellant again indicated that he was ‘working to separate’ the ILC from SEETA. He made representations to the effect that SEETA ‘now required a committee member to do the financials’; that Ms Shanahan was ‘no longer available to hold the treasurer’s position’; and that the ‘finance position was vacant’. At the same time, the appellant called for nominations for the SEETA finance position because he claimed ‘it wasn’t worth paying for someone to do the small amount required’. Nominations were called for, but no one volunteered.
In December 2009, the residual assets and liabilities from the SEETA balance sheet for the ILC were entered as the opening balance in the LCETA MYOB file in advance of LCETA commencing operations in relation to the ILC in early 2010. It was the prosecution case that the LCETA MYOB file was set up by the appellant or someone acting at his behest.
In addition to the SEETA assets and liabilities, further liabilities to the value of $118,000 were recorded in the LCETA opening balance. They comprised $55,000 for ‘School to Work Strategy’, $45,000 for ‘educational fees’ and $18,000 for ‘Youth Opportunity’. On the prosecution case, it was not clear how these round figures were meant to have been calculated, or what they represented. They did not correlate to figures in the SEETA closing balances.
The forensic accountant, Ms Summersides, observed that the inclusion of this $118,000 in liabilities for LCETA was facilitated by a reduction in the equity of the association. The residual equity of SEETA in its balance sheet as at December 2009 was $140,996. When the opening transaction was entered into the LCETA MYOB file, the residual equity was reduced by $118,000, being the amount of the liabilities mentioned above. This reduced the residual equity of LCETA to $22,996. According to Ms Summersides, this would ordinarily indicate that the funds received for the project liabilities had been paid out or expended.
Importantly, the description of the first item (being $55,000 for the School to Work Strategy) matched the description of the payment made on 19 August 2009; that is, the payment of $87,499 from SEETA account -0663 deposited into SAILC account -8152.
There was no indication in the opening balance in the LCETA MYOB file that the moneys had been passed to the appellant, as proper accounting would have required. Instead, as Ms Summersides explained, by listing the amount as a liability, the equity in the association was simply decreased. The transfer of funds to the appellant was obscured.
On 22 February 2010, and during the period that SEETA remained without an independent bookkeeper or treasurer, the sum of $152,392, being the major part of the residual funds from SEETA investment account -0481, was transferred to SEETA account -0663. On the same date, $158,589 (being the balance of account -0663) was transferred to LCETA ‘Savings & Loans’ account -3049. This was the first time that this LCETA account had been used.
On 9 March 2010, the remaining balance of the residual funds in SEETA investment account -0481 (being $400) was transferred to SEETA account -0663. On the same date, $587 was transferred back from LCETA to SEETA account -0663 to cover subsequent expenses. Based on this, the net figure for SEETA ILC funds received by LCETA between 22 January 2010 and 9 March 2010 was $158,001.
In late 2009 or early 2010, the appellant employed a relatively inexperienced bookkeeper, Ms Hill, to manage the LCETA accounts. It was the prosecution case at trial that Ms Hill’s temperament – her lack of personal confidence and her generalised anxiety disorder – meant that the appellant was directive with her about the amounts he got her to charge on invoice, and that he was also emboldened to transfer moneys in large sums outwards into an ‘investment account’ without fear of her questioning him.
As had occurred with SEETA, expenses associated with the provision of services to the ILC and MCLC were invoiced a term in advance. There were never any reconciliations between amounts charged on invoice by LCETA to MHS and amounts actually used. Mr Davey, the bursar at MHS, as a matter of habit did not receive or insist on written estimates or original invoices in relation to these various costs and expenses. Instead, the moneys continued to be paid over to the appellant via LCETA on the basis of trust. Indeed, Mr Davey understood the appellant’s requests for money were akin to authorisation for payment.
The LCETA ‘investment account’
Ms Hill’s evidence was that when she began bookkeeping for LCETA there was a file in the LCETA MYOB file described as an ‘investment account’. She did not have access to this account and did not know what happened to the funds in it. However, she understood that it was normal practice to transfer any surplus funds into an investment account to maximise the amount of interest earned, and to transfer the money down to the main LCETA operating account on a needs basis.
Ms Hill would record the movement of funds from LCETA operating account -2282 by making an entry in the ‘investment account’ within the LCETA MYOB, which she considered to be a ‘dummy’ account as it did not actually exist. She said that this was the only way for her to keep track of the outward movement of money from the LCETA accounts by the appellant. For example, if the appellant transferred $100,000 out of LCETA, Ms Hill would record the amount as being deposited into the ‘investment account’ as a credit.
When the LCETA account with the NAB was getting low in funds, Ms Hill would call the appellant and tell him the amount she needed to cover upcoming expenses, and the appellant would transfer money back into the LCETA account.
Ms Hill said that she was unable to track what happened to the moneys once they left the LCETA accounts. When she raised this with the appellant, he told her not to worry about it, and that the accountant would take care of it. On one occasion he explained that it had something to do with an offset account.
Ms Hill was unaware of any bank accounts opened and held by the appellant in the name of SAILC. It followed that, despite her role as LCETA’s bookkeeper she was not involved in, and left unaware of, any transfer of LCETA funds into the SAILC accounts by the appellant. Ms Hill was never able to reconcile these conduit accounts.
In addition, on Ms Summersides’ review, not every movement of moneys from the LCETA to SAILC accounts was recorded within the MYOB investment account. Some of the transfers from LCETA to SAILC preceded the first use of the investment account in late 2010. As Ms Hill acknowledged, the balance in the investment account did not accurately reflect the total movement of moneys.
Transfers of LCETA funds to SAILC and then personal accounts
Ms Summersides identified 74 transactions in total from LCETA accounts to SAILC accounts, totalling $1,300,446. Of these 74 transactions, Ms Summersides was only able to link 5 of them to invoices. Of the transactions that were not able to be linked with invoices, the transfers from LCETA accounts to the SAILC accounts were typically described on the bank statements as being in respect of an ‘investment account’, or some variant of this.
Notably, there were also regular transfers back from the SAILC accounts to the LCETA bank accounts to maintain the operations of the ILC. Such payments were typically described as internet transfers to cover wages, superannuation or similar. Ms Summersides calculated that the value of funds transferred from LCETA to the SAILC accounts exceeded the funds returned by $384,025 – allowing for $7,815 of the funds being associated with an invoice. This left a net value of outstanding transferred funds of $376,210.
The first transfer from a LCETA account to an SAILC account occurred on 12 March 2010, involving the deposit of cheque number 10 drawn on LCETA account -3049 in the amount of $8,800 into SAILC account -8152.
On 15 March 2010, the appellant issued LCETA invoices 00000003 and 00000005, in the amounts of $2,213 and $151,023 respectively to MHS. The invoices were paid by MHS, by cheque number 2127.
Counts 3 & 4: thefts of $7,000 and $10,052 (17 May 2010)
On 11 May 2010, the appellant issued ILC invoice 004 (with an ABN which had been issued to the appellant as a sole trader) to LCETA in the amount of $15,000. The invoice was said to relate to the Young Parents Program. On the same day, the appellant deposited cheque number 27, which was drawn on LCETA account -3049 in the amount of $15,000, into SAILC account -5511.
On 17 May 2010, the appellant transferred $7,000 from SAILC account -5511 to his personal account -4469 (Count 3), with a payment description ‘credit card payments’. On the same day, $5,099 was transferred by direct debit from this personal account to a visa account -2779 in the name of the appellant’s wife.
Also on 17 May 2010, the appellant transferred $10,052 from SAILC account -5511 to his personal NAB account -7951 (Count 4), being a NAB Flexi Plus Mortgage account, held in the names of the appellant and his wife. The transfer was described as being to ‘cover loan’.
Counts 5 & 6: thefts of $17,000 and $5,000 (20 July 2010)
On 19 July 2010, cheque number 44 was drawn on LCETA account -3049 in the amount of $22,000 and deposited into SAILC account -5511.
The next day, 20 July 2010, the appellant transferred $17,000 from SAILC account -5511 to the appellant’s personal account -4469 (Count 5),[8] with a payment description ‘investment 1 Troy’.
[8] As with other personal accounts, the appellant held this account jointly with his wife.
Also on 20 July 2010, the appellant transferred $5,000 from SAILC account -5511 to account -3493 in the name of his father (SR Bell) (Count 6), with a payment description ‘repayment’.
Count 7: theft of $11,000 (25 October 2010)
On 21 October 2010, the appellant deposited cheque number 51, which was drawn on LCETA account -3049 in the amount of $11,000 into SAILC account -5511. A few days later, on 25 October 2010, the appellant transferred $11,000 from that SAILC account to his personal account -4469 (Count 7), with a payment description ‘re-imbursement 1 Troy Bell’.
Count 8: theft of $130,000 (22 November 2010)
On 22 November 2010, the appellant transferred $130,000 from LCETA account -2282 to his personal account -4469 (Count 8),[9] with a payment description 'Investment acc Troy Bell’.
[9] Noting that this Count, and Count 13, differed from the other theft counts in that the payments were made directly from LCETA to a personal account, without going through an SAILC conduit account.
Count 9: theft of $127,000 (7 December 2010)
On 6 December 2010, the appellant deposited cheque number 46, which was drawn by him in favour of the ‘Independent Learning Centre’ on LCETA account -3049 in the amount of $127,000, into SAILC account -5511. Within a day, on 7 December 2010, the appellant transferred $127,000 from this SAILC account to his personal account -4469 (Count 9), with a payment description ‘Investment account Troy Bell’.
Count 10: dishonest dealing with a document (8 December 2010)
On 1 December 2010, and after LCETA had already been issuing invoices to MHS for some months, the appellant emailed Mr Davey, stating that the ILC was ‘a mess’. The applicant identified a series of improvements said to be required including a new computer system, new storage, carpets, private study desks, smart boards, conference desks, taking over another space and ‘lots of bits and pieces’. The appellant added:
.. what I would like to talk to you and John [Shelton] next week (once we know what is left in the budget) is around LCETA invoicing now for $50,000. I will work through Faye [Hill] … keep all receipts, and write a cheque for the things I need. I will table these receipts with you early next year and any money left over can go back to the Millicent account.
On 8 December 2010, the appellant issued LCETA tax invoice 001 to MHS for $50,000 including GST, with payment terms specified as seven days (Count 10). The invoice requested $40,000 for ‘building maintenance’, $4,000 for ‘upgrade of the Information Technology facilities at the ILC, purchase and installation of white boards, CCTV’ and $6,000 for ‘equipment needed for educational delivery’.

We have thus proceeded on the basis that feature (viii) was not established. This was a potentially significant aspect of the prosecution case as to the existence and operation of the System because, if established, it pointed to relatively clear dishonesty intended to conceal aspects of the appellant’s conduct. But we do not think that the absence of this feature prevents a conclusion that the System existed and was circumstantially relevant in the way contended for. To the contrary, we consider that the evidence nevertheless supported the existence of a system which was circumstantially probative in this way. Nor does this conclusion undermine the circumstantial force of any other aspect of the evidence led in support of the System or the prosecution case more generally.
Whilst not having the same direct flavour of concealment, there were other features of the System which suggested an intention to disguise the true character of the relevant transactions and dealings. In our view, this was an inference that could be drawn from the evidence that established misdescriptions and overcharging in the invoices, the use of conduit accounts, the misdescription of payments to an ‘investment account’, and the repayment of moneys from personal accounts.
But more fundamentally, we are satisfied that the evidence established the existence of a system which had the features identified in (i) to (vii), and which bespoke dishonest behaviour intended to benefit the appellant personally. And we are satisfied that this evidence was probative in the way contended for by the prosecution. In particular, it was circumstantial evidence probative of the appellant’s dishonesty when making the payments and dealing with the documents the subject of the charges. To the extent that the individual payments or dealings may have lacked colour, or have been difficult to characterise, when viewed in isolation, the evidence of the System tended to reveal a dishonest colour or character. The evidence tended to negate the existence of an innocent explanation for the impugned payments and dealings.
In relation to the theft offences (Counts 1-9 and 11-21), we have previously set out the detail of each of the charged payments. All except Counts 8 and 13 involved payments involving moneys which originated from SEETA or LCETA, but which were made from an SAILC account and directed to the benefit of the appellant. Counts 8 and 13 involved payments directly from a LCETA account, but were otherwise similar in nature and circumstance to the other payments. We have addressed Counts 1-4 in the context of our consideration of Ground 8. Whilst the payments were earlier in time, and were supported by invoices which referred to programs (SWS and YPP) which appear to have been provided, er have explained why this was not a basis for distinguishing these payments from the balance of the charged payments.
Viewed in isolation, it would have been difficult to determine whether the charged payments had the necessary dishonest character. However, in our view, when considered in the context of the entirety of the evidence, that character became clear beyond reasonable doubt. As well as the existence of the System, or in some cases by way of elaboration upon its existence and essential features, there were several notable features of the payments.
There was no apparent basis for the payment of funds from SEETA or LCETA for the personal benefit of the appellant. The work the appellant did in establishing and operating the ILC and MCLC was work performed in his capacity as a DECD employee. There was no evidence of any request or arrangement for the appellant to undertake this work in his personal capacity. Further, several of the payments involved amounts which appear to have involved overcharging or double-charging.
The flow of moneys through the SAILC accounts was generally rapid, and the balance remaining in those accounts (and, indeed, the relevant LCETA accounts) was generally minimal. The SAILC accounts do not appear to have had any function other than as a conduit for the payments made from those accounts for the benefit of the appellant.
Over time, the appellant benefited significantly from the payments. This included payments to a mortgage offset account (which saved the appellant approximately $41,000 in interest) and by way of reduction in the appellant’s credit card debt. As mentioned earlier, Ms Summersides’ evidence was that the payments during the period she considered involved a net benefit to the appellant through the SAILC accounts of approximately $427,000. Whilst the appellant challenged this figure, we do not think there was force in that challenge. Insofar as the defence case involved reducing that figure by the $224,820 returned to MHS via the cheque attached to the May 2016 letter, we think the defence case was misconceived. We do not accept that these funds were genuinely an advance payment in respect of the Mount Schank Hall project. To the contrary, there was an irresistible inference that they were not an advance payment in respect of the Mount Schank Hall project. In our view, the decision, some years after the relevant payments, to return this sum of money was tantamount to an acknowledgment that there had been payments to which the appellant was not entitled. In other words, it was a repayment of funds overpaid, rather than a sum in reduction of the net payments to the appellant’s benefit during the relevant period. There was also no evidentiary basis for the appellant’s suggestion that some of the payments related to a loan arrangement between LCETA and the ILC.
It seems to us that the personal benefits gained by the appellant provided evidence of a financial motive for the dishonest conduct alleged by the prosecution. Whilst the evidence did not provide clear support for any financial difficulties or stress on the part of the appellant, the nature and extent of the personal benefits he received provided evidence of a motive. Further, in addition to the overall sum of the moneys transferred to the appellant’s benefit, the pattern of increasing benefits over time was consistent with, if not demonstrative of, an increasingly emboldened appellant.
The misdescription of the payments as payments made to an investment account rather than a personal account supported an inference that there was an attempt to conceal the true destination of the payments. This was reinforced by the ad hoc repayments from personal accounts to the SAILC accounts in order to ensure the ongoing provision of the services provided by the ILC and MCLC.
In all of the circumstances, we are satisfied that the evidence established beyond a reasonable doubt each of the charged counts of theft. In the case of each payment, the evidence not only permitted, but compelled, an inference of dishonesty.
Turning to the aggravated dishonest dealing with documents offences (Counts 22-26), the detail of these alleged dealings has been set out earlier in our reasons. As explained in that context, these counts related to EYS invoices to MHS dated 11 December 2012 (for $129,781), 13 December 2012 (for $22,385) and 18 March 2013 (for $43,266, $38,542 and $149,635). The appellant had registered EYS as a business name for Bellistic Pty Ltd on 11 December 2012, being the date of the first of these payments.
As has also been explained, the evidence supported an inference that these EYS invoices were issued by the appellant, as opposed to the later EYS invoices prepared by Ms Hill.
The amounts claimed in those invoices largely related to amounts charged for wages of the staff operating the ILC programs during the first half of 2013. They also included some amounts for rent and other relatively minor expenses (such as cleaning, insurance and vehicle expenses). The amounts claimed were promptly paid by MHS.
However, the evidence supported a finding that there was no proper basis for EYS to charge these amounts. The evidence, including payslips and LCETA bank records, was that LCETA continued to employ and pay the ILC staff, as well as the ILC’s other expenses during the first half of 2013. There was other evidence to the effect that EYS was only intended to take over responsibility for the ILC from 1 July 2013. The impugned invoices, in suggesting that EYS was entitled to charge the amounts claimed (on behalf of Bellistic, and ultimately the appellant and his wife), were false.
In the circumstances described above, and in the context of the evidence as a whole, including the evidence establishing the System, we are persuaded beyond reasonable doubt that the appellant knew the invoices were false and thus acted dishonestly in creating and issuing these invoices.
In our view, this inference is supported by the appellant’s statements and conduct in his conversation with Ms Redmond and subsequent repayment of $224,820 to MHS through the cheque attached to the May 2016 letter to MHS. In his conversation with Ms Redmond, the appellant acknowledged an ‘interesting’ allegation that invoices from EYS involved double-charging for staff and wages that had been paid by LCETA during the period it was being wound up. Not only did the appellant go on to acknowledge that there was ‘a little bit of smoke there’, but also he suggested that he had a ‘way around it’. As he explained, this involved a plan to write a letter saying that EYS was now is a position to repay funds that had been paid in advance on the Mount Schank Hall project, even though those funds had been claimed through invoices which ‘said wages and specific staff’.
In the circumstances, we consider that the evidence supported conclusions not only that the appellant wrote (or was involved in writing) the May 2016 letter, but did so in circumstances where he realised that the revelation of the true position would have implicated him in at least the charged offences relating to the EYS invoices. He engaged in conduct intended to disguise or conceal the true position. In our view, the appellant made implied admissions through his statements and conduct which were probative of his guilt in respect of at least Counts 22-26. We do not accept that his statements and conduct can be otherwise explained (for example, by a mere desire to avoid unwanted or unjustified scrutiny).
In considering each of Counts 1-9, 11-21 and 22-26 we have been mindful of the matters raised by the appellant in his submissions on appeal, including the document entitled ‘Summary of Defence Counsel’s address relating to the charged counts’ and attached to the appellant’s supplementary written submissions. Most of the detail in that document relates to matters addressed above. In our view, none of the maters raised stand in the way of the conclusions we have reached, or otherwise give rise to any reasonable possibility that the charged conduct had some innocent explanation.
For completeness, it is noteworthy that the jury found the appellant not guilty of the Count 10 charge of aggravated dishonestly dealing with a document. However, we see no difficulty in reconciling this with our support for the jury’s conclusion that the prosecution nevertheless proved the appellant’s guilt of the remaining counts, particularly the other counts of aggravated dealings with documents. Whilst Counts 22-26 involved invoices issued by EYS in late 2012 and early 2013, Count 10 involved a much earlier December 2010 invoice issued in the name of LCETA. Further, the December 2010 invoice from LCETA related to particular building maintenance, information technology and other equipment expenses. We see no difficulty in reconciling the prosecution’s apparent failure to prove the falsity or dishonesty of these invoices with a conclusion that the evidence nevertheless proved the appellant’s guilt of the remaining charged offences.
In relation to all of the charged counts, we have also been mindful of the exculpatory statements made by the appellant to each of the ICAC investigator, Ms Redmond and his wife. In each case, he made statements which might be considered exculpatory insofar as he denied any wrongdoing or dishonesty. The appellant relied upon the unguarded nature of these statements as supportive of the defence case.
To the extent that the appellant suggested that the jury had an advantage over this Court in assessing the credibility of these denials of dishonesty, we do not think that was so. Whilst asserting an advantage on the part of the jury, the appellant did not identify the nature of that advantage. Nor did he identify any particular forensic purpose which might justify this Court listening to the recordings of the relevant conversations. The present case is distinguishable from R v ZT,[118] where intercepted recordings of admissions were the principal evidence implicating the defendant, and where there was some basis for thinking that the jury might have had some advantage in listening to those recordings and comparing them with statements made in police interviews. However, mindful of the observations in that case warning against an assumption that a jury enjoyed no advantage without having listened to the relevant recordings, we have listened to those recordings. Having done so, we do not consider that this added in any way to what could be discerned from the transcripts of those conversations. We are not persuaded that the jury enjoyed any relevant advantage.
[118] R v ZT [2025] HCA 9 at [13]-[21] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).
Given their self-serving nature, their very general terms, and the appellant’s obvious incentive to reassure Ms Redmond and his wife, we are not persuaded that the appellant’s denials of wrongdoing carry any significant weight. That is particularly so in circumstances where, in his conversation with Ms Redmond, the appellant made statements tantamount to an implied admission; and, in his conversation with his wife, acknowledged that there might have been ‘errors of judgment in moving moneys around’.
In summary, we are satisfied that the evidence established beyond reasonable doubt the appellant’s dishonesty, and ultimately guilt, in relation to each of the charged counts. Having reached that conclusion, we consider that this is an appropriate case in which to apply the proviso, and dismiss the appellant’s appeal.
Conclusion
For the reasons given, we would grant permission to appeal but dismiss the appeal.