(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bell v The King [2025] SASCA 97
Case
[2025] SASCA 97
Decision Date
CaseChat Overview and Summary
The appeal concerned the appellant, Bell, who was convicted of theft. The case was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, S Doyle and David JJ.
The central legal issues before the Court were whether the evidence presented at trial established the appellant's dishonesty beyond reasonable doubt, and if not, whether the appeal should be dismissed under the proviso to section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) due to no substantial miscarriage of justice having occurred.
The Court concluded that the evidence presented was sufficient to establish the appellant's dishonesty and, consequently, their guilt in relation to each of the charges. Having reached this determination, the Court found that the circumstances of the case warranted the application of the proviso, meaning that even if there had been a technical error, no substantial miscarriage of justice had occurred.
Accordingly, the Court granted permission to appeal but ultimately dismissed the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.