BRADLEY -v- LAMBORN
[2013] WASC 30
•1 FEBRUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BRADLEY -v- LAMBORN [2013] WASC 30
CORAM: McKECHNIE J
HEARD: 28 NOVEMBER 2012
DELIVERED : 1 FEBRUARY 2013
FILE NO/S: SJA 1015 of 2012
BETWEEN: NICHOLAS SAM BRADLEY
Appellant
AND
STEVE LAMBORN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B A LANE
File No :BM 1463 of 2010, BM 1464 of 2010
Catchwords:
Criminal law and procedure - Obtaining by deception - Whether honest claim of right - Character evidence - Whether property taken into account - Turns on own facts - No new principles
Legislation:
Criminal Code Act 1995 (Cth), s 9.5, s 134.2(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr T F Percy QC & Ms M F Mortimer
Respondent: Mr P N Bevilacqua
Solicitors:
Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Fisher v Bennett [1987] ACTSC 27; (1987) 85 FLR 469
Hawker v Coulthard [2011] WASC 139
Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531
Liberato v The Queen (1985) 159 CLR 507
Matthews v Fountain [1982] VR 1045
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Morgan v The State of Western Australia [2011] WASCA 185
Purkess v Crittenden (1965) 114 CLR 164
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
McKECHNIE J: This is a case about a boat, a truck and deception.
The appellant, Nicholas Bradley, and his wife, Sarah, were the managers of Home Valley Station near Kununurra on behalf of the Indigenous Land Corporation (ILC) for four years. The appellant bought a boat from Macka's Barra Camp. From another source, he bought a truck.
In due course, he sold both the boat and truck to the ILC to use on Home Valley Station. He sold each for more than he paid for them. He was subsequently charged with two offences of fraud under the Criminal Code Act 1995 (Cth):
1.Between 3 April 2008 and 2 September 2008 at Kununurra in the State of Western Australia, Nicholas Sam Bradley, by deception dishonestly obtained a financial advantage from another person, namely the Indigenous Land Corporation ('ILC'), which is a Commonwealth entity, in that ILC paid him $20,000.00 for a fishing charter boat and trailer when he was only entitled to be paid $15,000 contrary to subsection 134.2(1) of the Criminal Code (Cth).
2.Between 3 April 2008 and 2 September 2008 at Kununurra in the State of Western Australia, Nicholas Sam Bradley, by deception dishonestly obtained a financial advantage from another person, namely the Indigenous Land Corporation, which is a Commonwealth entity, in that ILC paid him $9,000.00 for a second hand Ford Truck with water tank, pump and carting hose when he was only entitled to be paid $4,000 contrary to subsection 134.2(1) of the Criminal Code (Cth).
The appellant stood trial over five days in May and October 2011. The magistrate delivered her written reasons on 2 December 2011. She found the appellant guilty of both charges. On 14 December 2011, the appellant was ordered to pay a global fine of $10,000. He appeals on nine grounds, some of which interlink and overlap.
Overview of case
As I have said, the appellant and his wife managed the Home Valley Station for the ILC. The appellant was initially caretaker and tourist operator, but in 2005 funding was approved to upgrade the facility into a tourist resort, with air‑conditioned accommodation, a bar and restaurant.
The appellant was employed on a contract from the ILC which included a wage and profit‑sharing arrangement. On 10 December 2007, the appellant purchased a surveyed fishing charter boat with a Yamaha engine from Macka's Barra Camp for $15,000. At about the same time, he also purchased a second‑hand 1984 Ford truck, with water tank and pump from Mr Jamie Thomson for $4,000. He obtained full ownership of the truck around February 2008.
The boat and the truck were eventually sold to the ILC. At issue was whether the ILC agreed to purchase the boat and truck for the price the appellant had paid for them. If that was the arrangement, the issue was whether the appellant had deceived representatives of ILC into paying more than that price. The price ultimately paid by ILC for the boat was $20,000 and the truck $9,000.
The evidence at trial
The proceedings were transcribed. During preparation for the appeal, it became apparent to the parties that two portions of transcript had not been recorded or transcribed for some reason. The parties have filed an agreed statement of evidence covering the gaps.
A number of matters were either admitted or no issue was taken.
(a)The identity of Nicholas Bradley.
(b)The ILC was at all relevant times a Commonwealth entity.
(c)The payments of $20,000 and $9,000 requested by Nicholas Bradley from the ILC were paid to him. (Exhibit P20)
(d)Mr Lawson did not personally inspect the truck prior to providing the valuation of $11,000. (Exhibit P7)
(e)The price Nicholas Bradley paid for the boat was $15,000. (Exhibit P1)
(f)Nicholas Bradley requested Mrs McEwen to provide an invoice stating that the purchase price was $20,000 for the boat. (Exhibit P3)
Witnesses
The prosecution evidence in relation to the boat
Garry Edward Cook
Mr Cook is the director of business operations for the ILC, has been employed in that position since early 2002 and is based in Canberra.
One of the business operations he oversees is the Home Valley Station, a tourism business on a pastoral lease providing accommodation, meals and touring activities for tourists. It has been in operation in its current form since late/mid‑2008. Prior to that, it was a much more low‑key activity. It underwent a big refurbishment and built many rooms and is a much bigger operation now:
The businesses all operate because we have pastoral businesses and that's their main activities in cattle stations. The way they operate is that we have annual plan to run the businesses and the managers are paid to implement that plan and my responsibility is to see that the implementation happens, to solve any problems that arise, to administer their performance and also to approve purchases against the budget.
Mr Cook stated that the managers at the relevant time were Mr and Mrs Bradley whom he had met many times and frequently had telephone and email contact. The structure of ILC is that his immediate superior is David Galvin, who is the general manager. A board is appointed by the minister, the minister appoints the general manager and he then runs the ILC (exhibit P11).
Prior to the board determining the budget, Mr Cook met with Mr Bradley on 4 April 2008 at Home Valley:
We were - we needed a budget for the coming tourist season to operate the tourist season. We had a budget in place up until the end of June and then we expected the refurbishment of the property or the rebuilding to be finished and ready to go by 1 July that year and so we needed a budget to operate the business activity during that tourist season, which was basically 1 July through till the end of November. So I'd been speaking to Nick earlier in the year and said, 'Well, we need to get a budget up and running, we need to get this rolling in time, so that we can go to a board meeting in June for approval and then that gave us then the ability to authorise the expenditure through that July through to November period. So we - David Galvin and I were in the Northern Territory the week - in that week, the first week in April inspecting some properties in the Northern Territory and then we made arrangements to go over to Home Valley and inspect the progress of the building works and at the same time use that as an opportunity to go through the budget, the draft budget, that Nick had been preparing with Chris Fenech.
…
So you and Mr Galvin visited the station and met up with Mr Bradley?‑‑‑Went out and visited the station, had a look at all the building works and then the next day - that same day we did the building works we came back to Kununurra and we went for a drive in the boat that Nick had been proposing and he said he had purchased for the ILC.
…
Yes, in fact we went for a ride on the, on the Ord diversion dam with Nick and his brother and so we had a look at the boat and that was the purpose of that afternoon's activity and then Nick stayed at Kununurra that night and the next day we went through the draft budget with, with Nick.
…
Nick was - had said that this was a great boat and this was going to be a great asset for the ILC as far as the tourism operation was concerned. That was the purpose of showing us the boat. So we had a look at it and then he proposed that we would buy it and both David Galvin and I said, 'Well, we can't buy it until we have a budget in place. We haven't got a budget and we won't have one until 1 July. There's no provision for such a thing and so we can't give you any guarantees that this boat can be bought'. So during the course of building the budget we noted that the provision had been made for the, for the boat purchase in there and so, again, we said, 'Well, righto, we can put this in the budget but the budget has to be approved by the board. Once it's approved by the board we can't do anything before that'.
… I was under the impression that Nick had, Nick had already bought the boat, yes. Yeah.
… There was no negotiation about payment. My recollection is that David Galvin insisted that we just reimburse - we'd only pay Nick what he paid for the boat.
And when you say insisted, why do you use the word insisted?‑‑‑Because there was no budget in place. We hadn't gone and asked for this boat to be purchased. This was very much a case of Nick saying, 'Here's this boat, this is a great opportunity. The ILC should go for this', and so we were saying, 'Well, it may be, but there's no budget in place and we're not going to be forced into doing anything. We'll just wait and see what happens with the board'.
…
My recollection is we were told the boat cost $23,000, yes. Because I'd asked Nick to draw the budget up, that's his budget, the draft budget, and we were there reviewing it basically.
…
It's on an Excel spreadsheet.
…
… [I] remember David Galvin saying very clearly, 'This boat has been purchased at your risk. We haven't asked you to purchase it', and made - there was no deal done, no. We were very - at pains to point out that the budget - the boat was purchased at Nick's risk and there was no guarantee that the board would approve the budget and therefore there was no guarantee he could be paid for it.
… I can't recall the exact words but I was under the distinct impression that's [$23,000] what it had cost Nick.
…
This was a Ford Trader truck and that was used to - was going to be used to spray water around?‑‑‑It's called a garden truck and it had a little water tank on the back and it was used - in the construction site there was a lot of dust being kicked up by construction vehicles and it was used to keep the dust down and then Nick said it would be, you know, very useful for carting water if you need to - sometimes you need to cart water if tanks break for cattle troughs, horse troughs, that sort of thing, and just watering the garden and inaccessible areas, extra water if required.
And now when did you first become aware of the existence of the truck?‑‑‑I can't recall the exact date. It was either when we were out at the construction site or the subsequent visit in June when we had the board meeting in - at Home Valley that year. Yeah.
…
Well, presumably the $9000 for the truck was in the draft ‑ ‑ ‑?‑‑‑In the budget.
…
And then Nick had - I said to him, 'Well, look, you know, if you want to be reimbursed for this you'll need some documentation to prove how much you've paid for it', and that's when he said, 'Oh, I've got a problem, I haven't got any documentation'. And I said, 'Well, I can't approve it'. So we had a discussion about what might - what we might do about it and the solution was 'Well, if we get an independent valuation to show that it's worth what you say it is we might be able to get approval on that basis'.
…
And the amount of $9000, do you know how that was set then?‑‑‑No, that was on the - well, other than what Nick led me to believe that that's what he paid for it.
Mr Cook received an email dated 7 April 2008 (exhibit P12):
The money I have tied up in this boat is quite substantial to Sarah and me. I purchased it for [Home Valley] operations because I recognised we would not find a better option in its price‑range and so nearby. I appreciate that there was never any undertaking by either of you to purchase it from us, but I think it would be a mistake not to secure this boat to establish our Pentecost and Durack River fishing and sightseeing tours. This boat is made for the job, while our other boats will be good for self‑drive and waterhole tours (providing Ricon repair them).
Mr Cook gave evidence about the email chain (exhibit P2):
Around the same time I remember a telephone conversation and in fact I wrote a little - a diary note at the time that I'd said, explained, 'To get reimbursed you'll need to prove evidence of what you paid'.
… I said a reimbursement request is no good without documentation.
And in terms of describing to him the documentation, what he's required to do, what did you say?‑‑‑Proof of purchase. That's for reimbursement, that's really what's required. And the problem was with the truck he said, 'I've got no proof of purchase, I've got no records'.
There was a further email chain (exhibit P14):
Hi Garry,
Our operations budget approved the purchase of the Ford Trader water cart/garden truck at $9,000. I believe you have already approved this but would like clarification to make this purchase.
The water cart has already done many weeks' work on site to spray water to suppress dust around the construction site and its need is obvious.
Can you formally approve this purchase?
Thanks.
Nick
Mr Cook's response was:
Nick,
The 2008/09 budget has approval for the purchase of the water cart but I will not approve it until after 1 July.
Regards
Garry
The following exchange occurred in cross‑examination:
And you accepted that invoice as the amount that Mr Bradley had paid for the boat?‑‑‑Yes. Yes. Yes, I have no reason not to.
And on that basis you approved the payment?‑‑‑Correct, yes.
If you had have known that in fact a lesser amount was paid would you have approved that payment?‑‑‑No. No, because, you know, it was about reimbursement, you know, the e‑mail from Nick to me, the initial one, talks about reimbursement. We had told him that we would reimburse him the cost of the truck and as it says the boat. And as it says in the e‑mail here on 7 April he acknowledged there's no undertaking from either David or I to purchase the boat, so we were - I thought the boat cost 20,000 and that's what we were prepared to pay. In fact, I was a bit surprised to get this e‑mail on the 18th, whereas the 20th, it was 20,000 and another 1000 and then 2000, and because the budget had provision for 23 and up until then I thought it was 23. Well ‑ ‑ ‑
All right. You mean 23,000 for the boat and trailer?‑‑‑Yeah. Yeah. Yep, that's right, yep.
Okay. You just mentioned we in the context of what had been told to Mr Bradley about what would be paid by ILC, who do you mean by we?‑‑‑David Galvin and I at those meetings.
It went on:
And that was a conversation that occurred after you received - well, do you know what made that conversation occur?‑‑‑There was an e‑mail saying, you know, the budget's been approved, you know, can I, can I be paid for the truck? And that then started the conversation about, well, reimbursement and proof of purchase, et cetera.
…
Now, in relation to the truck and the property invoice registration form that you used to approve payment, that form was used and not a claim for reimbursement?‑‑‑Yes.
Can you say why that happened?‑‑‑No. No, I don't know why that - what, what that process was about. No, I can't recall.
Mr Bradley's employment as manager of Home Valley terminated on 17 November 2008:
In relation to the whole issue of Mr Bradley's entitlements it's true, isn't it, that you never ever consulted with your legal advisors to find out what your position was?‑‑‑In relation to this reimbursement for the boat we're talking about?
Yes?‑‑‑I can't recall doing it, no.
…
And he would have been left on a limb if you said no?‑‑‑Correct.
…
And you knew that he had that boat, he bought it four odd months before hand?‑‑‑Yes.
… The boat was the focus of most of our attention.
And that he owned both of them?‑‑‑That's what I understood.
It wasn't a situation where he said:
'I propose that we get a boat. I'll go and buy one on behalf of the ILC and you can reimburse me?'‑‑‑No, it wasn't.
…
He wasn't going out as agent for the ILC and buying … [t]he boat or truck?‑‑‑That's correct.
… we made it very clear during the budget meeting that both items had been purchased at his risk. There was no ability for either David Galvin or I to authorise any payment to Nick for either of those things if and until the budget was approved.
… And then I can recall general manager Galvin saying, 'Well, we'll reimburse you'. …
…
You knew his asking price, didn't you, as of 4 April?‑‑‑As of the time of the meeting when we saw the amount in the budget, that's what I assumed he paid for it.
… I can't recall exactly but they were the figures that he put forward in the budget process.
Can you say on oath here in court that he said, 'That is what I have paid for it in relation to the boat'?‑‑‑I can't say on oath those exact words, no, but that's my understanding of what he paid for the boat.
That's your assumption. You can't swear to the fact that he told you that, can you?‑‑‑The fact that they were in the budget ‑ ‑ ‑
Listen to the question I'm asking you, it's a 'yes' or 'no' answer. You can't swear to the fact that he told you, 'I paid X for the boat?'‑‑‑No, I couldn't swear that, no.
But you did later come to form that view?‑‑‑Well, formed that view when we were looking at the budget.
And in relation to the truck you can't swear, can you, that he said, 'I paid X for the truck'?‑‑‑It's the same as with the boat. I came to that view when we looked at the budget.
… My understanding is that's what he paid and we were talking about reimbursement.
In an email dated 10 March 2008, Mr Bradley submitted prices for the budget - boat $23,000 and truck $9,000. Mr Cook knew when in Kununurra that Mr Bradley had purchased the boat:
[I] suggest to you said you would buy it off him?‑‑‑My recollection is we spoke about reimbursement.
… It's only a budget and so there's no authorisation for us to approve or to agree to any of the things until the board approves the budget.
Mr Cook put those prices into the budget. He prepared a paper for the board meeting which described the plan for the business for the tourism season 1 July to 30 November:
[N]ormally Home Valley and other remote tourist locations in the Kimberley close down during the wet season. However, at Home Valley there is now the possibility of conducting wet season fishing tours on the Pentecost River due to the construction of an all‑weather airstrip, the purchase of a charter boat in this budget and the construction of the air‑conditioned Grass Castle and guest house accommodation units.
…
The purchase of the charter boat I suggest to you was subject to board approval, 'A done deal'?‑‑‑It was included in the budget and the budget is a request for approval to the extent that the board contains - can disagree, they can alter the figures in these report papers. …
…
And subject to board approval you had contracted to buy it off Nick Bradley at that figure, subject to board approval?‑‑‑Subject to board approval we would have reimbursed Nick for the amount if we [were] given the invoices for it.
… that's what we said at the meeting.
The report continued:
The charter boat will be used to conduct fishing tours on the Pentecost River and has been surveyed and registered for this purpose. The truck is needed to replace the old tipper that has been 'run into the ground' working on the construction project?‑‑‑Correct.
Gardener's truck/water cart is needed to enable proper maintenance of the extensive landscaping in the new development.
And it's got, 'Charter boat 23,000'?‑‑‑Yes.
'Second hand water cart and gardener's truck, 9000'. Correct?‑‑‑That's right.
That was your recommendation?‑‑‑Yes. … it's never an obligation to spend that money, they're estimates of what we think things will cost.
The board paper is dated 17 June 2008 (exhibit D2).
Well, he bought it on our behalf, that's what he kept saying, 'This is something I bought for the ILC, it was too good an opportunity to miss'.
… our response was, 'No, you bought it at your own risk'.
…
And he wasn't your agent when he bought those, was he ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ neither of them?‑‑‑No.
He was buying them at his own risk?‑‑‑Correct.
…
He was in selling mode, wasn't he?‑‑‑Very much so.
And he nominated the price that he wanted for them?‑‑‑Yes.
And you agreed to it?‑‑‑We agreed to put a provision in the budget.
Yes, at those prices?‑‑‑Those prices.
The exchange continued:
And the price was agreed. You can't have a contract without a price, can you?‑‑‑We would reimburse Nick, that is what was said.
You would pay him the amount in your recommendation, in his proposal and in the board papers. That was the contract price, wasn't it?‑‑‑No, that was the price that was included in the budget. As I keep saying, I assumed that's what he paid for it, that's what I understood the cost was.
Why not put in your proposal whatever he can prove he paid for it?‑‑‑In the board paper? Because the board paper - the budget's are ever an estimate of costs and they're an obligation to spend.
Mr Cook accepts that as of May 2008 the truck was being used for the purposes of Home Valley Station. The monthly progress report for month ending 31 May 2008 includes:
On May 24, Joe Morgan arrived at HV to take up the Fishing Charter Guide's position. We took this opportunity to introduce him immediately to the HV Charter vessel on a quick trip down the Pentecost to look for Boab trees with Tourism WA representatives.
On May 25, we took the HV Charter boat out again with Joe to show him the Durack River and where he will be taking guests. Very useful for him to begin getting to know the tides and the dangerous areas?‑‑‑Yes.
Mr Cook also accepts that the charter boat was used for the purposes of Home Valley Station as of May 2008:
Yes. He's using it, the corporation is using it?‑‑‑Yes, that's what it looks like, yes.
The parties agreed that words were said to the following effect:
Q: [Percy QC] There is no prohibition on an employee selling to the ILC, is there?
A: [Cook] No
Q: Nick said make me an offer, didn't he?
A: No
Q: You're making an example out of Bradley aren't you?
A: No
David Galvin
2.In relation to the evidence that was heard at the Perth Magistrates Court on 11 May 2011, between approximately 10.00 am and 10.37 am, wherein Mr Bevilacqua commenced his examination‑in‑chief of the witness Mr David Galvin, the Appellant and Respondent agree that Mr Galvin gave evidence or said words to the following effect:
a)He [Galvin] is the director of Business Operations.
b)He has been in the position for 10 years.
c)He is basically the CEO of the ILC.
d)He gave a description of the business run by the ILC, including that it employs about 390 persons.
e)He recalls Nicholas Bradley and his brother taking them on a boat.
f)He recalls that Bradley wanted to purchase the boat for the Home Valley Station.
g)He recalls that Bradley told him that it was a second hand boat from Macka's Barra Camp.
h)He recalls that Bradley told him that the boat was second hand and was well set up for the Home Valley Station.
i)He recalls that the budget was signed off within a week.
j)He recalls telling Bradley during the boat trip that if he purchased the boat it was to be at his own risk, but if the ILC approved it, then the presentation of a 'bona fide receipt to show purchase price would be required'.
k)He, Cook, Nicholas and Sarah Bradley were involved in intense planning of budgets, including a budget that went beyond boat and truck.
l)During the budget discussions, Bradley spoke about the truck and how useful it would be to the station. Galvin said to Bradley during these discussions that if the ILC decided to buy the truck he would be reimbursed the cost.
m)He had a recollection that the $23,000.00 for the boat could have included repairs.
n)A budget is a best guess of costs looking forward [ie it is not an approval to pay it is an estimate to what expenses Home Valley Station will incur]. The objective was to always try to come under the budget allocated, ie spend less than what was the estimate of costs.
The Appellant agrees that Mr David Galvin may have said words to the effect of 'presentation of a bona fide receipt to show the purchase price', but does not agree that the witness specifically used those words. Based on contemporaneous file notes taken at the hearing, the Respondent maintains that the witness Galvin did use this specific wording.
In 2008, Mr Galvin was not aware of any discussions relating to the acquisition of a new truck at Home Valley. In relation to the boat, he did not have any conversations with Mr Bradley after the meeting in Kununurra. He was aware of the price of $23,000 in the budget on 4 April 2008:
I take it you have some difficulty remembering I suppose the exact nature of the conversation given that this was a long time ago?‑‑‑Over the boat?
Yes?‑‑‑No, I, I don't, because it was, it was something that was specific that we were taking on the boat. It was a beautiful trip, we had a good time, a couple of beers on the boat and it was quite an in‑depth discussion.
And there was a price raised, wasn't there? He said it was for sale for about $20,000 he'd sell it to you?‑‑‑Well, he didn't say he'd sell it to us.
He told you he'd bought it already?‑‑‑He certainly didn't tell me he'd bought it.
Your impression of the discussion was to the effect that he said he could buy it on behalf of ILC if he got your approval. Is that effectively what you say?‑‑‑Absolutely. Absolutely.
So I want to put it to you is that he made it absolutely clear that he'd already purchased it using his own money?‑‑‑No.
And that he would be prepared to sell it for about $20,000?‑‑‑Absolutely not.
Mr Galvin said that when Mr Bradley was terminated, he never sold a boat to him (Mr Galvin) or to the ILC. He was reimbursed. It was not the subject of him being dismissed.
Mr Galvin was taken to a prior statement which says:
Garry had mentioned to me that Nick wanted to purchase some fishing boat from a local fishing tour operator. I now know this operator was Macka's Barra Camp but I did not know the name at the time.
…
When Garry and I got to Kununurra late one evening for this budget meeting, which was the next day, Nick had arranged for us to go on a trip on the boat, which we did?
…
Nick then said that he had purchased the boat. I hadn't realised that he'd already purchased the boat. Nick asked whether the ILC could reimburse him the cost of the boat.
…
And is it the truth?‑‑‑I'm not at - I'm, I'm, I'm not 100 per cent certain.
…
I said words to the effect, 'Mate, that's entirely your own risk. We haven't even talked about the budget, that's tomorrow. The budget will have to be approved by the board. That's your gamble. You purchased the boat and it is up to the processes of the ILC to see whether you'll be reimbursed for it'.
…
That's what you told the lawyer?‑‑‑Yes.
Mr Galvin stands by the statement that Mr Bradley persisted in stating his view that the boat was the 'perfect' purchase for Home Valley Station and stated he might be able to purchase it and ILC could reimburse him. If something different was said to a lawyer from Phillips Fox that would need to be amended. $23,000 was in the budget papers. He disagreed that in principle it was agreed the ILC would buy the boat, but that it needed board approval:
No, it was always a reimbursement. Why did he produce the documentation for reimbursement?
I'll ask the questions.
The following exchange occurred in re‑examination:
Mr Galvin, did you or anyone else within ILC have authority to commit ILC to a binding agreement to purchase a capital asset in the amount of $23,000 without it being within a budget approved by the board?‑‑‑No, distinctly not on a business operation sense, no.
Is that how you conducted the operations thoughout your time at ILC?‑‑‑Yes.
And to this day still do?‑‑‑Yes.
Amy Louise Richardson
Boat
At the relevant time, Ms Richardson was the finance officer for ILC, resident in Adelaide. Part of her role was to process claims by Mr and Mrs Bradley for reimbursement of expenses. She had dealings in relation to payment for the boat and Ford truck. The documents were all kept together by her. She reported to Garry Cook for approval. Exhibit P2 was a form entitled 'Reimbursement Form - Commercial Operations'. The original amount was $20,468.61, amended to $468.61. The invoice bears two ILC stamps and was received on 17 July 2008 and 29 July 2008 with an attached email. The invoice is signed by Sarah Bradley dated '10/7/08' with the declaration 'I declare I have paid $20,468.61 (invoices attached) for expenses on behalf of the ILC. I seek reimbursement of these expenses'. The second page was a breakdown of what constitutes $468.61.
I received the claim and I looked at the backing documentation to ensure that everything's there to support it, and there was only evidence to support the food stores and telephone component of it. So I crossed that out and made a note that that's all I'm going to reimburse.
…
What is the usual procedure in dealing with these sorts of requests?‑‑‑I need a, a tax invoice or, if it's under a certain amount, then just a normal receipt. … These forms are generally used to reimburse expenses incurred on behalf of ILC.
Ms Richardson stated that after she looked at the invoice and noted there was no invoice to support $20,000 for the boat she emailed Garry Cook. She discussed with Nick Bradley that she needed evidence to show that the money was spent, and advised him that probably a tax invoice would be the best way. The boat was in Mr Bradley's name and she needed transfer papers to show that the boat had been transferred into ILC's name. This would have been after she received the reimbursement. She received a facsimile from Macka's Barra Camp (exhibit P3) as a payment receipt. She stapled it to the back of the reimbursement claim form. She received approval via email from Garry and then the claims were processed.
There are a chain of emails of 20 August 2008 (exhibit P4).
Exhibit P4 commences with an email from Nick Bradley to Garry Cook of 18 August 2008 at 8.59 am and reads:
Hi Garry,
I'm trying to get reimbursed for the Boat I purchased for HV.
Would you please provide written authorisation for the agreement we came to, regarding the following:
$20,000 Boat & Trailer
$1,000 Trailer Repairs - New Springs & Labour for Offroad Modifications$2,000 Compensation for personal funds being tied up for 9 months
Amy has requested this in order for reimbursement to take place. The other hold‑up is the fact that I have to send hard‑copies of the boat registration transfers to HO for the seal etc.
Rgds,
Nick
Mr Cook responded at 11.34 am:
Nick,
As explained by Amy we need a receipt from you for the ILC to reimburse you for the cost of the boat and today we received one from Macka's Barra Camp for $20,000 for the purchase of the boat. I will agree to reimburse the cost of the trailer repairs for $1,000 but again, I need a copy of the receipt for the work done to prove that this is the cost of repairs.
We cannot compensate you $2,000 for personal funds tied up for 9 months. This is equivalent to an annual interest rate of 12.7%. I recall you telling me that you had considerable funds tied up in the boat and that you were hoping to be compensated for this but I do not recall agreeing to do this. After all, you acknowledged on 7 April that there was never any undertaking by either David or I to purchase the boat from you. I have spoken to Jodie about this and she has confirmed that we will only reimburse you for the costs that you have paid based on the receipts provided.
Garry
And finally in the chain an email from Garry Cook to Amy Richardson at 11.12 am:
FYI. I am happy to approve the $20,000 for the boat now.
Ms Richardson then received a tax invoice from Mr and Mrs Bradley (exhibit P5):
Purchase / Service Amount
Fishing Charter Boat 'Sillyfish' & Trailer 20,000
Off‑Road Trailer Repairs - New Springs & Installation 1,000
Compensation for Personal Savings Tied Up Over 9 Months FOC
TOTAL INVOICE $21,000
To this invoice Ms Richardson attached an annotation '*Only reimbursing $20000 as I still do not have the receipt for $1000 trailer repairs. Amy*'.
Truck
Ms Richardson received a tax invoice dated 23 June 2008 (exhibit P6) from Nick Bradley to Home Valley Station. The description read '1 Ford Trader garden truck with water tank, pump & carting hose - second hand 9,000'. There was no valuation with the invoice. On the invoice there is a note:
Amy,
This purchase is covered by the new 1168 budget which was approved by the Board last week.
Thanks, Nick
Ms Richardson has noted 'need valuation' and later 'received (attached)'. She has also noted:
To come out of 08/09 budget.
This is an 08/09 expense.
A statement by supplier has been sent to Nick to fill out.
Also forms to transfer into ILC's name have been requested.
No PO.
Ms Richardson then received the valuation from Mr Lawson (exhibit P7).
In cross‑examination, Ms Richardson said there is a purchasing protocol, tendered as exhibit P11, relating to the guidelines needed to be followed in order to process payments and reimbursements. She said there are procedures for reimbursements and sometimes she would have to make payments to separate suppliers which were not reimbursements:
Yes. If the person - and it could be, in some circumstances, be an employee of ILC - was actually the supplier themselves?‑‑‑Yes, that's right, but there would never be a circumstance whereby the ILC wouldn't know about that beforehand. There would always be a discussion saying, 'This is what I'm about to buy. I'm just letting you know about it,' and that sort of stuff. So in essence, it, it could be viewed as a reimbursement in that sense.
…
[W]as it your impression that he purchased that boat for the ILC and was simply seeking reimbursement?‑‑‑That was my impression, yes.
…
To be honest, with regards to the truck, I can't recall any of the previous discussions. …
… my job was really just to process the invoices and not question the whys and wheres of it, but just make sure that the proper supporting documentation was attached.
Ms Richardson received an email dated 23 July 2008 from Mr Bradley reading:
The water cart maintenance truck has been approved by Garry for purchase as part of our operations budget. The truck is ours and we are selling it to Home Valley because it's very much needed. Please let me know if you have any further queries regarding this matter. FYI, I have just discovered that Catherine has ignored a rather large collection of invoices for at least a couple of weeks. I hope these do not cause too much hassle for you. Hope all is well, Nick.
Ms Richardson does not recall whether the truck had been purchased and was being on‑sold to ILC. She received an email from Garry Cook dated 22 July 2008 regarding 'Purchase by Nick Bradley' saying:
Amy, you are correct. It is inappropriate for me to approve either of these reimbursements. The budget has an allowance for each item, but I have explained to Nick that we must have an independent valuation of any item we buy from him, or an invoice showing what he paid before I can consider approving its purchase, Gary.
…
But a budget is a guideline or a maximum amount that needs to be spent or that can be spent.
Jodie Lindsay
Ms Lindsay is the chief operating officer for ILC. She gave evidence about exhibit P11, the purchasing procedures manual. She was taken to Mr Bradley's contract of employment, cl 2.13:
The parties to this offer will apply and promote the values and act in accordance with the NIPE code of conduct.
She stated that from time to time she spoke with Nick Bradley in accordance with discussion about policies or budgets. In cross‑examination she agreed there was no prohibition about purchasing items from employees. Produced as exhibit D7 was correspondence from Amy Richardson to Nick Bradley and a Statement by supplier form, as a one‑off transaction or a hobby (for boat and truck invoices).
Andrew Jackson McEwen
In 2007 ‑ 2008, Mr McEwen with his wife Catherine, ran the business called Macka's Barra Camp. He knew Mr Bradley casually. In late 2007 he decided to sell one of his boats and contacted Mr Bradley. The boat was a commercial boat under survey. Mr McEwen and Mr Bradley reached an agreement to buy the boat with some conditions of storage over the wet season and carrying out some repairs on the trailer, both of which were done. The boat was called Silly Fish.
Exhibit P1 is the invoice dated '10/12/2007' and describes a '5.45 m vessel with trailer and 115 hp Yamaha motor. Purchase price of $15,000 includes storage and trailer repairs as discussed'. Rate $15,000, GST $1,363.64, amount $15,000.
On 2 January 2008, Mr McEwen was paid by way of electronic transfer into his account. The sale included a notation 'Includes all electrical & electronic equipment as viewed including sounders, radio, bilge & bait pumps, survey equipment including the re‑surveying of the vessel for 2008'.
The boat was inspected by DPI and passed survey.
Following a conversation with his wife, Mr McEwen prepared a further invoice for $20,000. In cross‑examination, Mr McEwen said that the initial approach to sell the boat came from him. He said $15,000 was pretty good value. He was asked:
[I]f you persevered you could have got quite a bit more?---Possibly yes.
The following exchange then occurred:
20,000 wasn't out of the ball park, was it?‑‑‑It's hard to say. I mean, I sold it for what I wanted, wanted to get for the boat and that's, you know, that's what - I wanted to move it in a period of time and I sold it for what I felt was a fair price.
The appellant purchased the boat in his own name and did not ask for it to be put into anyone else's name. In respect of the second invoice for $20,000, Mr McEwan said:
Oh, look, it went against the grain, it wasn't a decision that I took lightly.
He was then asked:
But, in fact, you were of the view, weren't you, that the value of the boat was arguably $20,000 anyway?
And replied:
No, that didn't even come into play … it wasn't part of my consideration. … I knew it was the wrong thing to do. It was the wrong thing to do and consciously I went against, went against what my gut feel was to provide a second invoice, but I was busy, it was not high on my priority list. I dismissed it and said, 'Yep, just go ahead and do it,' and it was the last thought I gave to it.
Catherine Terese McEwen
Ms McEwen is the wife of Mr McEwan. She gave evidence that there were some repairs on the suspension of the trailer. An invoice (exhibit P8) from Metaland in the sum of $265.19 was for items bought for the trailer.
Ms McEwen subsequently had a conversation with Mr Bradley in April 2008, making a note in a message book 'Nick Bradley invoice 20,000'. She stated:
Nick asked me to issue a second invoice for an amended amount of $20,000 … I asked him, 'Why is that?' And he responded along the lines of, 'Because that's how they want it down in Adelaide'.
Ms McEwen reissued a second invoice for $20,000 (exhibit P3). The invoice was dated '19/8/2008', sale number 294. The description in the invoice was 'Sale of 5.45 m vessel with details as per invoice. Payment made by EFT direct deposit on 2.1.2008'. Rate $20,000, tax amount $1,818.18, amount $20,000. The invoice was accompanied by a facsimile addressed to Amy:
Amy,
please find payment receipt attached as requested.
Many thanks
Kate McEwen
In cross‑examination, Ms McEwen was challenged as to the date of the conversation. It was put to her that the conversation came in August 2008. She conceded that to the best of her recollection, she would have prepared the invoices as soon as she was asked. To the best of her recollection, she was only asked once, but she could have been asked twice. Her file note was tendered as exhibit P9.
Beau David Robinson
Mr Robinson is the co‑proprietor of East Kimberley Marine providing maintenance for boats. He did work in relation to Silly Fish which was invoiced as exhibit P10. The invoice is dated '13/08/2008' detailing work on the engine for a total of $4,153.63. The invoice 5373 is addressed to Home Valley Station, Nick Bradley, PMB 15 Kununurra, WA 6743. The motor was on a crate, had impact damage and needed to be assessed and repaired. He was duly paid for the invoice. The motor was picked up from his yard on a Home Valley ute and loaded on with a forklift. He agreed he probably took possession of it in July rather than August.
The prosecution evidence in relation to the truck
Darryl Lawson
Mr Lawson is the proprietor of Kununurra 4WD Spares and provides repair services for vehicles. In 2008, Mr Bradley said he needed a valuation to assist with his finance to buy a Ford Trader truck. He needed a valuation of above 8/9,000. Mr Lawson's valuation was sent by facsimile dated 27 August 2008. The valuation is dated '27/07/2008' and is addressed:
To Home Valley Station
Attn Mick Bradley
Re FORD TRADER
YEAR 10/84Serial no SGDX CO‑35397 (exhibit P7).
It states:
I have inspected the above vehicle and value it at approximately $11,000.
Regards
Darryl Lawson
Mr Lawson said it was very difficult to get the vehicle in or himself out of the place. Mr Bradley sent him a heap of photos and he set the assessment on the photos. Mr Bradley asked him to 'produce an evaluation that was greater than 8 or $9000'. Mr Lawson said '[i]t really was done for Nick as a favour'.
In cross‑examination, Mr Lawson said he had been in the automobile trade for overall 50 years and operating Kununurra 4 Wheel Drive Spares for about 13 years. He knew four wheel drives and their values pretty well and would be able to price a vehicle if he had details of it. He had been the maintenance superintendent for Argyle Diamonds for 13 years and had expertise in all types of mobile vehicles - bulldozers, trucks and land cruisers. He knew four wheel drives and their value pretty well.
He didn't ask you to do it blind, he asked you to come out and do it?‑‑‑Yeah. He couldn't bring it in, I couldn't get out there to see it.
Mr Lawson said that Mr Bradley did not tell him the ILC were going to buy the truck off him. Mr Bradley told him that he did not want to take it into town because the registration had lapsed and he did not want to renew it because it was only going to be used on the station.
Mr Lawson was busy and it was going to be hard to come out and do it physically. He has a hobby of radio‑controlled model planes and Mr Bradley said if he came out he could use the models on his air strip and he would accommodate him. Mr Bradley was at pains to lure Mr Lawson out to value this truck. Mr Lawson asked him to send the odometer reading, its make and some photos, pin number etc, which he sent by email.
When asked whether the evaluation was a sworn evaluation or just a ball park evaluation, Mr Lawson said:
Well, it's a valuation. All valuations as far as I'm concerned are an approximate what it's worth on the market.
Mr Lawson did not know what Mr Bradley had paid for it. He said it is not unusual for him to do an evaluation off photographs. He said he was not trying to mislead or deceive anyone. He stands by that evaluation as being 'fair dinkum'.
In relation to the fact that the truck was being used and they were running it, it was an assumption Mr Lawson drew from talking to someone. He said the only person he talked to was Mr Bradley.
Alistair Stephen McCaffrey
Mr McCaffrey took over as manager of Home Valley Pastoral Station in December 2008 from the previous managers Mr and Mrs Bradley. He met Mr Bradley briefly. He had a look through the records and found licensing details for the truck (exhibit P21), and the notification of change of ownership form dated 28 February 2008 showing the market value and selling price as $4,000.
Christian Thomas
Mr Thomas is a Federal agent with the Australian Federal Police whose evidence was formal.
The appellant's evidence
The appellant was born in Broome in 1976. He is presently 35 years old and married with two children. He was married in 2004. He has a bachelor of arts, with combined honours in English literature and graphic design from Anglia Polytechnic in England.
The appellant gave evidence of his background and how he came to the station and the conditions. There was huge potential for commercial fishing charters. He began investigating options in 2006. In 2007, he was made aware of a boat for sale at Macka's Barra Camp, called 'Silly Fish'. No finite decision was made to purchase the boat. He had a ballpark figure of $20,000. He took it for a test drive. The purchase price was agreed at $15,000, subject to Mr McEwen fixing the trailer and storing it for the wet season and maintaining the commercial survey. The appellant was buying it for himself off his own back. He contacted no one to get approval. He was not acting as agent for the ILC. The purchase had nothing to do with the ILC. The appellant considered the boat to be his. He thought it would be ideal for operations at Home Valley and he had an income projection target. He hoped ultimately that he could on‑sell it to ILC, but it represented value for money. He took possession of the boat in the first week in April.
The appellant received a price to on‑sell the boat at $20,000. The boat was included in the budget papers with the truck. Until the ILC board meeting at Home Valley in mid‑June, the boat was on hold until he got an indication from Mr Cook that he had agreed to include it in the budget at the asking price. On that basis, it remained for the board to approve it before it would effectively be on‑sold. He assumed the boat was required by ILC and began generating income as of the end of April. He also employed a fishing tour guide, Mr Joe Morgan.
When Mr Galvin and Mr Cook arrived at Home Valley in April to inspect development progress and conduct budget meetings the boat was at Macka's Yard in Kununurra. The appellant arranged a test drive. They thought it was a great boat.
You heard the evidence of Mr Cook, and I think his evidence is at 25 onwards of the transcript, was that he said that at all times the only agreement was for you to be reimbursed what you had actually paid. What do you say to that?‑‑‑That's not the agreement we came to. He never once told me that was his expectation.
Did you ever tell them that you had only paid $15,000 for the boat?‑‑‑Never.
And why not?‑‑‑That was my business. It wasn't for me to tell them what I had got the boat for. It wasn't in issue and I had made a decision from the beginning that I would purchase it and I would on‑sell it either to the ILC or to someone else.
There was an undertaking by the ILC to take the boat off him. The appellant had a conversation with Mr Cook later along the lines of 'the budget's good; everything's in the budget including the boat and the truck; if the board approves it, it's good to go'. He did not feel the need to declare a profit to the board; he saw it as his prerogative.
The appellant spoke to Mr Cook two or three days after their budget talks in Kununurra. That is when he went into operation. After he submitted his invoices to ILC, he received a phone call from ILC accounts querying the invoices. Mr Cook subsequently called the appellant to say that the agreement they had was for $20,000, and the invoice he had supplied seeking extra money for having his funds tied up, he (Mr Cook) could not approve. On that basis, the appellant was directed to re‑issue an invoice in the amount that was agreed at the budget talks. Mr Cook said he was not going to agree to that and that '[w]e'll stick with the original agreement'.
The appellant is not representing that this is what the boat cost him; he is representing that this is the deal that was struck and the amount he told the ILC he would sell the boat for:
What was your intention by putting that figure there?‑‑‑To get paid $20,000.
It says, 'Off‑road trailer repairs new springs and installation $1000'. Had you actually paid $1000 for that?‑‑‑No.
Why include that?‑‑‑At the time of our budget talks the trailer repairs were still to be done. I had no idea what they were likely to cost and the discussions we were having around the budget allocations sort of - I just - I threw in $1000 because I figured it's probably a ballpark of what it might cost, so that was a figure that I put in which was obviously ultimately included in the budget.
In relation to the email of 20 August where the appellant mentioned 'trying to get reimbursed':
I meant to be paid for the boat.
In relation to the appellant's deal with Mr Cook:
Was your deal that you would only get back the money that you repaid?‑‑‑No
What was your deal?‑‑‑My deal was that I was selling my boat to the ILC for $20,000, there was likely to be an added expense for repairs to a trailer, and there was the possibility of an additional 2000 that I floated with them.
The appellant said that Ms Richardson requested an invoice from Macka's Barra Camp, '[f]or the invoice that covers what you paid for it'. The appellant responded:
No, no, you don't understand, Amy. This is my asset and I'm selling it to the ILC … I was quite adamant about that to her. Then she said, 'Well, I need a document that validates the 20,000 and you and Garry have agreed'. I said, 'I'll see what I can do'.
The appellant never told Ms Richardson that he only paid $15,000 for the boat '[b]ecause it wasn't her business'. His recollection is that he did not request an invoice for $20,000. It was only after he had spoken to Ms Richardson, that he made the request on Ms Richardson's behalf. The ILC received the invoice direct from Macka's Barra Camp.
A photograph of the truck is exhibit D8. The appellant thought the truck 'would be a good addition to the Home Valley fleet if the ILC were interested in buying it for me'.
In relation to the purchase of the truck:
[I] met Jamie in town … and I gave him a cash cheque and he said, 'Thanks very much'.
…
How much did you pay for it?‑‑‑$4000.
… it was a distress sale for you. I knew that the vehicle was worth a lot more and I knew that it had also been offered for sale to other stations … for 9 or 10 thousand dollars, so I knew it was on the market and by the time, you know, it sort of got to me, I think Jamie was fairly desperate.
…
When did you first raise the question of the water truck as a potential purchase for the ILC?‑‑‑It was in the vehicle register that I sent to Garry Cook mid to late March.
Did you orally discuss it with them?‑‑‑No, I don't believe I did.
…
Who proposed the figure?‑‑‑I did.
… I told Garry and David that the truck belonged to Sarah and me and we are selling it to the ILC because it is very much needed.
The appellant never represented to anyone he had actually paid $9,000 for the truck. Nobody ever asked him what it cost. After board approval, he sent an email to Ms Richardson. She asked him to get either an invoice or a valuation to justify or to validate the amount that was agreed. He responded:
'The truck is ours and we are selling it to Home Valley because it is very much needed', but anyway, she said, 'No, no. We just need it for our records'.
The appellant asked Darryl Lawson to give a valuation:
[I] know that it's been offered for sale elsewhere on the Gibb River Road at 9 or 10 grand but … 'I need a valuation anyway'.
The appellant said he thinks Mr Lawson was confused when he said that he (the appellant) asked him to produce a valuation which was greater than $8,000 or $9,000. The appellant never told anybody $9,000 was what it cost. His intention was not to represent that he paid that much money for the truck.
The appellant denied that someone looking at invoice P3 from Kimberley Barra Pty Ltd would think that he paid $20,000 for a 5.45 m vessel:
Not if that person had asked me to get it for them.
… they basically … churned out exactly what you asked them to provide?‑‑‑That's right.
…
HER HONOUR: The document is not a true representation of what you paid for the boat, is it?‑‑‑No, it's not.
Ms Richardson said that they needed a document to show the agreement with Mr Cook to validate it. The payment was not going to happen until the appellant had arranged what she wanted. When they discussed the truck, they did not ask the appellant how much it cost. He told them he was offering it for sale at $9,000. For the boat, he said:
This is a wonderful opportunity here. It's ideal for the Pentecost and I'm prepared to sell it. Sarah and I have bought it and we are prepared to sell it for $20,000.
The $2,000 was not part of the agreement the appellant had with the ILC.
There was never an undertaking at that time that the boat would be purchased or that the truck would be purchased from you and Sarah?‑‑‑ No words to that effect.
Later in the conversation, Mr Cook said:
The operations budget has allocations for the boat and the truck. If they're approved by the board it's a green light.
What did you understand 'green light' to mean?‑‑‑That the boat and the truck would be purchased.
There was no discussion of purchase price at the April meeting.
The explanation on page 65 is confusing:
And at the same time you were saying that, 'This is my boat; I'm going to sell it to you and make a profit'. You were saying them at the same time, effectively. How do you reconcile a request for moneys being tied up if you are selling a boat to make profit?‑‑‑I knew the budget allocation was $23,000, I knew the agreement we had was $20,000 for the boat and I thought I would ask if Cook would agree to compensating me the $2000 because I had my money tied up for that period of time, and in that period of time the boat had been working for the ILC.
The reimbursement form was not used because the appellant was getting a reimbursement, it was done partly out of habit. He was not accustomed to completing the ILC's invoice registration forms.
And you didn't sense a need to let Amy know that you would be creating a document that would be false in relation to amount?‑‑‑No.
That's because Amy never said that, did she?‑‑‑Yes, she did.
You're saying to this court that Amy asked you to prepare a false document?‑‑‑No, not in so many words.
The appellant said it was not made clear that if the ILC were to acquire the boat or truck the same amount the appellant and his wife had paid would be reimbursed.
Character evidence
Peter McCallum Dowding
Mr Dowding is a legal practitioner and has known the appellant since he was a very small boy.
When asked about the appellant's honesty or integrity, Mr Dowding stated:
I have absolutely no doubt about his honesty and integrity, no question of it, in my mind, and I'm aware of the nature of these two allegations. I'm sure that Nick at no stage thought he was acting improperly.
Thomas Gregory Stevens
Mr Stevens is a Member for the Pilbara in the State Lower House and has known the appellant since the late 1970s.
In your dealings with him over the years have you ever had any cause to query his honesty or integrity at any level?‑‑‑No, none whatsoever.
Are you aware that he faces some counts in this court alleging that he had been fraudulent or dishonest?‑‑‑I'm aware of the charges and they're completely inconsistent with the Nick Bradley that I know.
Klari Gabriella Kadar
Ms Kadar is an econometrician and has known the appellant for approximately eight years:
Did you ever have cause to query his honesty or integrity at any stage?‑‑‑Never, quite the contrary. Before Nick started the initial contract with us in 2009, he spoke to myself and my two business partners and made us aware of the charges that were currently pending against him which I think is again reflective of his openness and honesty in his dealings with us. He not only earned our respect but the respect of the clients that he worked for, particularly the indigenous people.
The magistrate's written reasons for decision
The magistrate set out the definition of dishonesty under the Criminal Code Act s 134:
4.Section 134.2 of the Criminal Code Act 1995 (Commonwealth) states:
'134.2 Obtaining a financial advantage by deception
(1)A person is guilty of an offence if:
(a)the person, by a deception, dishonestly obtains a financial advantage from another person; and
(b)the other person is a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2)Absolute liability applies to the paragraph (1)(b) element of the offence'.
5.'Deception' is defined by section 133.1 of the Criminal Code Act (Commonwealth) (1995) (The Code) as:
'Deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes:
(a)a deception as to the intentions of the person using the deception or any other person; and
(b)conduct by a person that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to do.'
6.Dishonesty is defined by section 130.3 of the Code as:
'130.3 Dishonesty
For the purpose of this Chapter, dishonest means:
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
Note:The following provisions affect the [meaning] of dishonesty:
(a)section 131.2 (theft);
(b)section 134.1 (obtaining property by deception)'.
130.4 states:
'130.4 Determination of dishonesty to be a matter for the trier of fact
In a prosecution for an offence against this Chapter, the determination of dishonesty is a matter for the trier of fact'.
She noted that the appellant contends he has a claim of right under s 9.5.
8.Mr Bradley contends that he had a claim of right. Section 9.5 of the Criminal Code (Commonwealth) states:
'9.5 Claim of right
(1)A person is not criminally responsible for an offence that has a physical element relating to property if:
(a)at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)the existence of that right would negate a fault element for any physical element of the offence.
(2)A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3)This section does not negate criminal responsibility for an offence relating to the use of force against a person'.
She referred to Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445.
She states:
It follows that the prosecution are required to prove beyond a reasonable doubt that Mr Bradley had an intention to defraud. The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it [12].
This statement of law is correct. There must be some evidence of a claim of right before a court is required to consider it, but once there is some evidence, the prosecution must negative it beyond reasonable doubt.
The magistrate correctly noted the issue to be determined at [16] before setting out the evidence in some detail.
The magistrate addressed the issue of character evidence, noting that matters of weight are primarily for the finder of facts. She concluded at [57] that this finding justifies the conclusion of guilt.
The magistrate's findings
She correctly noted the appellant's contention [2]:
2.Mr Bradley contends that there was never an agreement that he be reimbursed by ILC the price that he paid for the truck and boat. He contends that he was to be paid the amount that he requested as a sale from himself to ILC.
And also noted that the appellant contended he had a claim of right [8].
9.Mr Bradley contends that there was no deception or dishonesty on his behalf to obtain a financial advantage. He contends that he did not receive a financial advantage, because he was entitled to the money paid to him by ILC as a matter of law and relies upon Roberts v State of Western Australia [2005] WASCA 37. That case deals with s 22 of the Criminal Code, but is analogous to section 9.5.
The magistrate made critical findings against these contentions, noting the issue to be determined:
16.The issue for the Court to determine is whether Mr Bradley acted dishonestly by a deception in his claim for reimbursement from the ILC.
The findings
18.David Galvin and Garry Cook discussed the boat and truck with Nicholas Bradley in April 2008. They agreed to place the items in the budget for approval by the Board at the amounts nominated by Nicholas Bradley as being the amounts that he paid for them. Their understanding was that they would reimburse Nicholas Bradley what he paid for the boat and tipper truck.
25.Mr Cook was told by Mr Bradley that the boat cost him $23,000 and that is why the budget figure was for that amount. There was never any agreement to reimburse Mr Bradley $2,000 for his funds tied up from the time of purchase to the time of reimbursement from ILC. (See email 20 August 2011 at 11.34 am).
29.When Mr Bradley requested a second sales invoice from Macca's Barra camp he told Mrs McEwen that was the way they wanted it in Adelaide. The ILC did not know that Mr Bradley had paid $15,000 for the boat. Mr Cook and Mr Galvin were told that the boat cost $23,000. In his email to Garry Cook, Mr Bradley itemised the specific costs of the boat, as $20,000 for the boat, $1,000 for trailer repairs and $2,000 compensation for funds tied up. Mr Bradley could not produce any documents to show that $1,000 had been spent on trailer repairs. This amount was disallowed. He was also disallowed the $2,000 compensation for his money tied up, but because he had an invoice showing that he paid $20,000 for the boat that sum was reimbursed to him.
30.Mr Bradley was actively trying to get ILC to purchase the boat and tipper truck. He knew from what he was told and his past dealings with ILC that they could only reimburse him what he paid for the items. He gave an amount for the boat and tipper truck to Mr Cook and Mr Galvin and these figures were approved in the budget. Once approved Mr Bradley requested payment of the items by sending a tax invoice to ILC in Adelaide. Payment was not approved on the basis of the tax invoices sent by Mr Bradley and ILC wanted the sales invoice or an independent valuation. Mr Bradley already had the sales invoice for $15,000 but he procured another invoice for $20,000, which is the figure that he has given previously to Mr Cook.
41.Mr Bradley was entitled to receive from ILC what he paid for the boat and truck. That was the agreement. He was not entitled to be paid the amounts that he told ILC what he paid for them, which was different to the amounts that he actually paid for them. The budget figures were prepared on the basis of the figures given to Mr Cook by Mr Bradley. Mr Cook accepted them as the amount that Mr Bradley had already paid for the goods with his own funds.
46.Did the accused hold an honest belief that he should be paid $23,000 or $20,000 for the boat? Mr Bradley was told by Mr Cook that the ILC would pay him the amount that he paid for the boat. He told Mr Cook that amount was $23,000. He sent a tax invoice to ILC requesting payment of $23,000 after that sum had been approved in the budget. Mr Bradley procured the invoice for $20,000 from Mr and Mrs McEwen. Once the invoice was accepted Mr Bradley became the 'supplier'. In accordance with the 'ILC Purchases Procedure' (Exhibit P11) at page 21 POR are accountable forms used for purchases of goods and services greater than $1,000 (3.1).
49.Dishonesty about the means is not conclusive of dishonesty about the end. Mr Bradley knew what he paid for the boat. Mr Cook told him that ILC would pay him what he paid for the boat. He was dishonest by telling Mr Cook that he paid $23,000 for the boat. Once that figure was in the budget and approved, it does not mean that Mr Bradley has a legal entitlement to be paid that amount or a civil claim to mat amount. He must comply with the Procedure manual and produce proof of purchase.
He could for $15,000, not for $23,000. He procured the document for $20,000 from Macca's Barra Camp. That was sufficient to satisfy the ILC and he received payment for this amount. Mr Bradley did not hold an honest claim of right. He acted dishonestly and with deception when he procured the receipt for $20,000. He knew he was entitled to be paid $15,000 only, the amount he actually paid for the boat and the invoice for $20,000 caused the Commonwealth Entity (ILC) to pay $5,000 more than Mr Bradley was entitled to receive.
50.The Ford Trader truck was purchased for $4,000. There was no receipt for that sum, but there is a 'Notification of Change of Ownership' signed by Mr Bradley on 28.2.2008 (Exhibit P21) stating that the cost he paid for the vehicle was $4,000. This was before April 2008 when Mr Bradley had discussions with Mr Cook and told him that he would sell the truck for $9,000 to ILC. Mr Cook believed that was the amount Mr Bradley paid for the truck. That amount was placed in the budget and approved. When Mr Bradley was unable to be paid that amount because he told Mr Cook that he did not have any proof of purchase, Mr Cook told him to obtain a valuation. Mr Bradley contacted Mr Lawson who produced a valuation of $11,000 which was sent to ILC. Only $9,000 was approved to be paid to Mr Bradley because that was the amount allocated in the budget.
51.Mr Bradley raises a claim of right to the $9,000. Was the claim made honestly? Mr Bradley knew he paid $4,000 for the vehicle. Mr Bradley knew that ILC would only pay him what he paid for the truck. The claim was not made honestly. The agreement between Mr Cook and Mr Bradley was that Mr Bradley would be reimbursed what he paid for the tipper truck. This was not a sale at any price to the ILC. If it was such a sale the procedure set out in the manual is different. It is also clear from the emails that Mr Cook had told Mr Bradley that ILC would pay him what he paid for (the boat and) the truck.
58.On the issue of credibility, Mr Bradley was not a witness of the truth. He was actually trying to sell to ILC the boat and truck that he purchased for Home Valley operations. He knew that he would be paid only what he paid for them, but he inflated the price of both when he tried to obtain 'reimbursement' for the inflated amounts because he only had proof of the actual amounts he paid, he procured documents to support the amounts he told ILC he paid for them. He knew he was not 'entitled' to those inflated amounts but was only entitled to be paid what he paid for the boat and truck. He procured the documents and by doing so, he acted dishonestly and with the intention to deceive the ILC to pay him the inflated amounts, not the correct amounts for reimbursement.
59.The prosecution has proven beyond reasonable doubt that Mr Bradley acted dishonestly and by a deception and I enter a conviction on PN BM 1463 and 1464 of 2010.
The effect of these findings is a rejection of the appellant's evidence as to the agreement. The magistrate has found that on 3 April 2008 the agreement between the parties, to the appellant's knowledge, was that he would be reimbursed only the cost of the boat and the truck to him.
Character evidence
The magistrate correctly outlined the law, citing Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, before concluding on the facts [57]:
57.The authorities show that matters of the weight as opposed to the admissibility and relevance of character are primarily for the finder of fact. (See Wedd v The Queen [2000] WASCA 273). The character evidence is somewhat compelling, but not persuasive because of the evidence of the prosecution witnesses and the documentary evidence which is persuasive of the guilt of Nicholas Bradley.
The grounds of appeal
Ground 1
Financial Advantage
1.The learned Magistrate erred in failing to consider whether the applicant had done anything which at law would constitute 'obtaining a financial advantage' for the purposes of the charges in question.
PARTICULARS
a)The applicant's case was that once the budget approvals for the purchase of each item had been made by the appropriate officers of the corporation, the applicant was entitled to payment in the agreed amounts.
b)Whatever the documentation the applicant subsequently furnished in furtherance of his claim to be paid could not constitute a 'financial advantage' as a matter of law.
c)This submission was put to the learned Magistrate in submissions by Senior Counsel at the conclusion of the evidence but was not dealt with in the reasons.
d)The learned Magistrate's failure to deal correctly with this submission was an error of law.
e)The learned Magistrate erred when she failed to hold (at paragraph 49) that once the figures were in the budget and appropriately approved by the relevant officers of the corporation the applicant had a legal entitlement to be paid.
The notion of a financial advantage is a simple one: Matthews v Fountain [1982] VR 1045, 1049 (Gray J).
Miles CJ in Fisher v Bennett [1987] ACTSC 27; (1987) 85 FLR 469 held:
[A]n advantage involves a particular situation which is more beneficial to the person concerned than another relevant situation with which it is compared. A financial advantage involves a situation which from the financial aspect is more beneficial to another situation. When one speaks of obtaining a financial advantage by deception, there is imported, in my view, the notion of improving a financial situation by means of that deception.
So much may be accepted. The difficulty for the appellant is that the case he mounted was rejected by the magistrate. The particulars cited in support of the ground are predicated on an acceptance of them.
At [58] the magistrate found that the appellant knew he would be paid only what he paid for the truck and boat. He knew he was not entitled to be paid extra. He clearly obtained a financial advantage in these circumstances being the difference between what he paid for the boat and the truck and what he subsequently received from the ILC for them.
Ground 1 is dismissed.
Ground 2
The 'Procedures Manual'
2.The learned Magistrate erred in her reliance on the steps contained in the 'Procedures Manual' as being relevant to the question of an honest claim of right.
PARTICULARS
a)The applicant's case was that he supplied documentation at the request of the officers of the corporation, in order to secure payment for the items in question.
b)There was an approval process set out by a 'Procedures Manual' which specified in general terms the process of obtaining payment by suppliers.
c)The procedures set out in the 'Procedures Manual' were not inflexible, and did not apply universally to every purchase made for or on behalf of the corporation.
d)The finding of the learned Magistrate (at paragraph 49) that there was a legal requirement that the applicant comply with the requirements of the 'Procedures Manual' before being entitled to payment was erroneous.
e)The finding (at paragraph 49) that payment was contingent upon compliance with the 'Procedures Manual' was a mistake of fact and law.
f)The finding that the applicant had not complied with the 'Procedures Manual' and was inconsistent with him having an honest claim was an error of both fact and law.
Particulars a) ‑ c) are correct but irrelevant. The appellant knew he would not be paid unless he produced documentation. He produced false documentation because, consistently with the magistrate's reasons, the true documentation for the boat would only result in reimbursement whereas the appellant was seeking a financial advantage by way of an inflated price beyond actual reimbursement. The same is true for the truck.
Particulars d), e) and f) mistake what the magistrate actually said at [49] of her reasons. The reference to the Procedures Manual is a reference to the fact that the appellant had to produce documentation for proof of purchase. He knew that and did so, albeit false documentation.
Ground 2 is dismissed.
Ground 3
The Contractual price of the Boat and the Truck
3.The learned Magistrate's finding (at paragraph 46) that the applicant had been told by Cook that the corporation would only pay the applicant what the applicant had paid himself for the boat was a mistake of fact.
PARTICULARS
a)The applicant's case was that he nominated a price for the boat and truck without disclosing what he had paid for either item.
b)In cross examination (at Transcript page 26 on 10 May 2011) Cook agreed that he had never been specifically told that the purchase price of the boat was the price paid for it by the applicant.
c)The learned Magistrate's finding in this regard (at paragraph 46) was a material factual error.
Ground 3 particular b) takes one part of Mr Cook's evidence out of context.
The consistent evidence of both Mr Cook and Mr Galvin was that they were only ever prepared to reimburse the appellant what he had paid for the boat and the truck and that they had made this clear to him. Although Mr Cook expressed the words, the context of his evidence was as encapsulated:
[W]e had told him we would reimburse him the cost of the truck and as it says the boat
and
[M]y recollection is that David Galvin insisted that we just reimburse - we'd only pay Nick what he paid for the boat.
This evidence was clearly accepted by the magistrate ([46]). Ground 3 is dismissed.
Ground 4
Competing Versions of the Evidence
4.The learned Magistrate erred in law in failing to deal with the applicant's evidence on the basis of the principle set out by the High Court in Liberato v The Queen.
PARTICULARS
a)The issue of credibility was a central one to the case and the learned Magistrate made a finding (at paragraph 58) that the applicant was not a witness of the truth.
b)Where issues of credibility are central in a criminal case, the tribunal of fact may either believe the applicant, disbelieve the applicant, or be in doubt as to the applicant's credit. Only when the trier of fact is satisfied beyond reasonable doubt as to the contrary position may it find against the applicant on the issue.
c)The learned Magistrate did not embark upon an analysis of the three possible conclusions in this regard.
The principles set out in Liberato v The Queen (1985) 159 CLR 507 are commonly referred to but it is worthwhile recollecting what they are. In Liberato special leave was refused. The context was of a judge who summed up in the view of the minority, giving references to a choice between particular witnesses. Brennan J (in dissent) said:
The jury must be told that even if they prefer the evidence for the prosecution they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
Deane J agreed with Brennan J.
A Liberato direction is not required as a matter of law: Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531. The magistrate correctly referred to the burden and standard of proof on several occasions [12], [15], [59].
The magistrate found the appellant was not a witness of truth. Together with the acceptance of the evidence of Mr Cook as to the appellant being told he would only be reimbursed for the cost of the boat and truck and her reference to the burden and standard of proof, this is not a case where a Liberato direction was necessary.
Ground 4 is dismissed.
Ground 5
Character Evidence
5.The learned Magistrate erred in consideration of the character evidence.
PARTICULARS
a)The learned Magistrate's finding that the character evidence could not stand in the face of compelling evidence of guilt was correct but it did not entirely discharge the trier of fact from making its own assessment of the witness' credibility.
b)The Magistrate needed to make preliminary findings as to whether the applicant was a witness of truth or a person likely to have committed the offences in question.
c)The character evidence was strong and the learned Magistrates' observation (at paragraph 58) that the applicant was not a witness of truth appears to have been arrived at independently of and without regard to the character evidence.
The magistrate correctly set out the law [54] in reliance on Melbourne v The Queen and correctly showed that matters of weight are primarily for the finder of fact. There is nothing to suggest that the magistrate misunderstood the issue in relation to good character or misapplied the law to the facts.
The appellant had received an invoice from Macca's Barra Camp for the true cost of the boat to him. He later procured the McEwens to give him a false invoice showing the purchase of the boat at a higher price.
The appellant had transfer papers for the truck indicating a value of $4,000. He procured a valuation of the truck from Mr Lawson by asking him to produce an evaluation that was greater than $8,000 or $9,000 when he knew he had paid $4,000 for the truck. He procured the valuation in order to secure payment of a greater amount from ILC.
These actions not only had a bearing on elements of the offence, namely fraud and honest claim of right, but also had a direct bearing on his overall credibility. Notwithstanding the very favourable evidence of general good character, when the specific actions are set against that evidence it was well open for the magistrate to conclude that on the issue of credibility, the appellant was not a witness of truth [58].
Ground 6
Honest Claim of Right
6.The learned Magistrate erred by failing to consider whether the prosecution had negated the applicant's assertion that he had at the relevant times held an honest claim of right to the money obtained by him.
PARTICULARS
a)The defence case was that the applicant held an honest claim of right to the monies obtained by him.
b)There being evidence before the Court that he held such a belief it was for the prosecution to negate the proposition put forward by the applicant.
c)The learned Magistrate's finding (at paragraph 52) is ambiguous as to:
i)Whether she required the applicant to make good that claim; or
ii)If the prosecution bore the onus, to what standard they were required to prove it.
d)Despite the references to the onus and standard of proof at paragraph 12 of the reasons, it is unclear from the learned Magistrate's reasons if the evidential burden was not discharged by the applicant or whether the persuasive burden was discharged by the prosecution.
e)The reasons of the learned Magistrate are in any event inadequate as to the basis of her finding that the applicant held no honest claim of right.
The magistrate dealt with honest claim of right because the defence had raised it at trial.
However, it does easily arise in the issues fought at trial. If there was a reasonable possibility that Mr Bradley believed that he had made a deal in April to sell the boat and truck for $23,000 and $9,000 respectively, the element of fraud or dishonesty within the charges would be absent.
If, as the magistrate found, he knew that his sole entitlement was reimbursement of the cost to him, no claim of right arises.
The magistrate dealt with the burden of proof:
It follows that the prosecution are required to prove beyond a reasonable doubt that Mr Bradley had an intention to defraud. The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it [12].
The magistrate's formulation is correct: Purkess v Crittenden (1965) 114 CLR 164, 167 ‑ 168 (Barwick CJ, Kitto and Taylor JJ); Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [30].
The magistrate's findings as to the appellant's actual state of mind precluded the operation of the Criminal Code (Cth) s 9.5.
Ground 7
The Valuation and Invoices
7.The learned Magistrate erred in finding the element of dishonesty proven on the basis of the applicant having provided valuations from Lawson and McEwen, whereas the prosecution case was predicated on a deception made to the officers of the ILC.
PARTICULARS
a)The prosecution case depended upon the proposition that the deception the subject of the charges was a deception made by the applicant to Cook and Galvin.
b)The prosecution case was run on the basis that the material deception was made at the time that the items were approved in the budget, rather than in his subsequent behaviour in providing documentation to the administrative officers of the corporation.
c)The production of an invoice from McEwan and a valuation from Lawson might have been separately charged as discrete offences but were not.
d)In holding that the primary issues for determination (at paragraphs 49 ‑ 52) was whether there had been a deception in the applicant's post budget approval claim for payment the learned Magistrate has misconceived the essence of the prosecution case.
e)In holding (at paragraph 52) that the element of dishonesty was proven in obtaining the valuation from Lawson and the invoice from McEwan, the Magistrate was in error.
f)The learned Magistrate was further in error in using the valuation from Lawson and invoice from McEwan as evidence which would negate an honest claim of right.
The prosecution notices alleged a continuing offence commencing from 3 April 2008 when Mr Cook, Mr Galvin and the appellant met and discussed the boat and truck and concluding after payment was eventually made. The deception was continuing although the offence crystallised when the accused obtained a financial advantage.
The magistrate correctly focused on the meeting of 3 April 2008. The appellant's submission that the production of the Macca's Barra Camp second invoice and the valuation from Mr Lawson were not separately charged as discrete offences but the facts relating to them could not stand as evidence of any element of the charges before the court in the present case is incorrect. Plainly they were relevant evidence both in their own right as it was a case pleaded as a continuing deception and also to give context to precisely what was agreed in April 2008. The production of the invoice and valuation was necessary because the agreement was for reimbursement. Reimbursement on the existing invoice for the boat and trailer would be for a lesser sum. The magistrate's summation at [49] ‑ [52] is correct.
Ground 8
Weight of the Evidence
8.The findings of guilty were against the weight of the evidence and were not reasonably open on the evidence before the Court.
PARTICULARS
a)The findings of guilt were against the evidence for the following reasons:
i.It was not open on the evidence to find to the required standard that the accused had misled Cook and Galvin as to what the boat or truck had originally cost him.
ii.The primary issue was whether or not the applicant had misled Cook and Galvin in that regard rather than other officers of the corporation from whom he sought payment; and there was no evidence which would support this to the required standard.
iii.There was no evidence before the court which would support the proposition that anything the applicant did which could as a matter of fact have been construed as an attempt to obtain a financial advantage.
b)The applicant was on all the evidence an honest and reliable witness, and a finding to the contrary was not reasonably open.
c)On the applicant's case, he had at all times acted pursuant to an honest claim of right.
d)In particular any representation which involved the documents emanating from McEwan or Lawson were not of probative value regarding the question of financial advantage.
e)The reasons of the learned Magistrate contained a number of serious factual errors.
f)On all the evidence before the court it was not reasonably open for the learned Magistrate to be satisfied beyond reasonable doubt nor to have been satisfied that the defence raised had been negated to the required standard.
The principles have been revisited comparatively recently in Morgan v The State of Western Australia [2011] WASCA 185 [94] ‑ [95] and Hawker v Coulthard [2011] WASC 139 [11] ‑ [16]. I adopt, with respect, principles outlined by Commissioner Sleight:
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487 the majority (Mason CJ, Deane, Dawson and Toohey JJ) stated the approach an appeal court should take to an appeal on the ground that the verdict was unsafe and unsound.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493). (emphasis added)
The principle applies to an appeal on a decision of the magistrate in a summary court: Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nichol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38.
The plurality, in its decision, went on to say as follows:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494).
If a magistrate's findings depend to any substantial degree on the credibility of witnesses, the findings must stand unless it can be shown the magistrate has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established or which was glaringly improbable: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66] (McHugh J); Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479; Maddalena v CSR Ltd [2004] WASCA 231 [154]. Accordingly, a heavy onus is placed on an appellant. It is not sufficient simply to establish there are inconsistencies in the evidence with the verdict.
An appellate court must be mindful of the limitations that exist on hearing an appeal which include the disadvantage of not seeing and hearing the witnesses and not having the 'feeling' for the case that the magistrate at first instance has a result of hearing all the evidence: Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572 [43] (Callinan and Heydon JJ); Hontestroom v SS Sagaporack [1927] AC 37, 47.
There are some cases where the magistrate may not refer to the demeanour of the witnesses, suggesting that it did not play a part in the magistrate's decision (Maddalena v CSR [157]), but failure to mention demeanour does not necessarily exclude this as a factor. It is often difficult to describe how demeanour affects an assessment of credibility. Sometimes the impact can be subtle. For this reason the advantages of the trial magistrate when making assessments of credibility must always be kept in mind by an appellate court: Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179 [11] - [16]
The magistrate made critical findings. On my review of the evidence they were open for her to make.
She found that at the April meeting Mr Cook and Mr Galvin made it clear to Mr Bradley they would only reimburse him for the amount he had paid for the boat and truck.
She did not accept Mr Bradley's account that they had agreed the price.
Of course the amount for the truck went into the budget at $9,000 and the amount for the boat at $23,000.
That is what Mr Bradley told them the cost was to him. He later had troubles even with $23,000, needing to resort to a strategy of adding $1,000 for the trailer and $2,000 as a cost of money component. This further suggests that he knew he would only be reimbursed for the cost to him.
The creation of a false invoice by Mrs McEwen on instructions from Mr McEwen was unwise of them to put it mildly, but was after the agreement between the appellant and Mr Cook and Mr Galvin had been reached.
The creation of the invoice for the boat, and the valuation of the truck were not done under an honest claim of right but to support the figures that Mr Bradley had quoted at the April meeting. It was continuing deceptive conduct.
On the contrary to the assertions within the particulars to ground 8:
•the appellant bought the boat from Macca's Barra Fishing for $15,000;
•the appellant bought the truck from Jamie Thomson for $4,000;
•the appellant bought both the both and truck for use at Home Valley Station;
•the appellant was told by Mr Galvin in April that he would only be reimbursed the cost of the boat and truck for what he paid for them;
•Mr Cook reiterated that the appellant would only be reimbursed in July 2008 and August 2008;
•Exhibit P2 signed by the appellant's wife in respect of the boat, obviously on the appellant's behalf, had a declaration of payment of $20,000 for expenses in behalf of ILC, 'I seek reimbursement of these expenses'. This was in respect of the boat;
•Ms Richardson spoke with the appellant and advised that evidence was needed to show that the money was spent;
•the appellant thereupon procured a false invoice from Macca's Barra Fishing;
•the appellant thereupon procured the valuation from Mr Lawson;
•the appellant was paid;
•the appellant included a request of $2,000 for payment for his funds being tied up. This is inconsistent with an agreement for the boat which he claims to have reached in April 2008;
•the magistrate observed the witnesses. Her reasons indicate that she used that advantage in reaching her decisions on credibility and factfinding.
There was more than sufficient evidence to justify a conviction on both charges and ground 8 is dismissed.
Ground 9
Totality of Errors
9.In the event that the Court was not persuaded that any of the individual grounds have led to a miscarriage of justice, the totality of errors set out in grounds one to eight inclusive have led to a miscarriage of justice.
There have been no errors established in grounds 1 to 8 and there has been no miscarriage of justice.
The appeal is dismissed.
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