Cakar v The King

Case [2023] SASCA 25

Supreme Court of South Australia

(Court of Appeal: Criminal)

CAKAR v THE KING

[2023] SASCA 25

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Auxiliary Justice Mazza)

16 March 2023

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

Application for permission to appeal against conviction.

The appellant was a director of a company (Living Australia) that entered into an agreement with another company (MKRE), whereby MKRE agreed to pay Living Australia 50 per cent of the net commission of each property sale referred by Living Australia to MKRE.  Following entry into the agreement, the appellant discussed with the owner of MKRE a proposal to undertake a property development in the suburb of Thorngate.  During 2015, the appellant commenced negotiations with property owners in Thorngate and subsequently entered into various “Option to Purchase Land” agreements, whereby Living Australia agreed to purchase the relevant property for inclusion in the land earmarked for development, and the property owner agreed to sell the property to Living Australia.  These agreements were contingent upon the development proceeding.

It was alleged that upon entering into the various agreements, the appellant deceived the various complainants by making false representations to them that he required funds to pay for certain upfront costs associated with the proposed development in Thorngate, and that the monies the complainants paid would be used for that purpose.  At trial, the prosecution alleged that these representations caused the complainants to make various payments to the appellant, and that the appellant did not use the monies for the represented purpose, but rather used them to fund his own living expenses and lifestyle.  By doing so, it was alleged that the appellant dishonestly received a benefit.  The development did not proceed, and the options to purchase the residents’ land were never exercised.

The appellant was convicted of two counts of deception, contrary to s 139(a) of the Criminal Law Consolidation Act 1935 (SA), being Counts 3 and 4. The appellant was found not guilty of the remaining five counts of deception.

The trial judge found the appellant not guilty on Counts 1, 2, 5, 6 and 7 on the basis that she was not satisfied beyond reasonable doubt that the appellant had made the alleged representation as to the purpose for the monies paid by the complainants, or that the complainants paid the monies for that purpose.

The appellant appeals the decision of the trial judge on grounds that Count 4 was bad for duplicity, and that the trial judge’s reasons and reasoning were inadequate with respect to Counts 3 and 4.

Held,…

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Cakar v The King [2023] SASCA 25
Case
[2023] SASCA 25
Decision Date

CaseChat Overview and Summary

The case of *Cakar v The King* concerned an appeal against convictions for deception. The appellant, Cakar, was alleged to have made representations to complainants regarding the use of funds they provided, which were subsequently not used for the stated purposes. The defence did not dispute that the appellant received financial advantages, but contested that the prosecution had proven beyond reasonable doubt that the alleged representations were made, that the funds were not used for the stated purposes, and that the representations caused the financial advantage.

The central legal issues before the court were whether the trial judge erred in her findings regarding the elements of deception, specifically concerning the making of representations, the falsity of those representations, and causation. The appellant argued that the trial judge failed to adequately address certain aspects of the evidence, particularly in relation to Count 4, where it was contended that the complainant, Mr. Komninos, had been shown a relevant agreement that might have altered his understanding of the use of the funds. The court was required to determine if the trial judge's reasoning was sufficient and if the evidence supported her conclusions on each count.

The court found that the trial judge's reasoning regarding the quantum of contributions was adequate. In relation to Count 4, the court rejected the appellant's argument that the trial judge failed to adequately address the significance of Mr. Komninos' due diligence and his viewing of the Warren agreement. The court noted that the trial judge had detailed Mr. Komninos' evidence regarding his desire to conduct due diligence and his subsequent review of the agreement, and that the appellant's argument did not sufficiently account for the evidence presented and how it featured in the trial. For Count 3, the trial judge was satisfied beyond reasonable doubt that the appellant made a false or misleading representation to Mr. Komninos regarding the use of $17,000 for development costs, when in fact the funds were used for the appellant's personal lifestyle. The judge found Mr. Komninos to be an honest witness and was satisfied that the representation caused Mr. Komninos to transfer the funds.

The court ultimately found the trial judge's findings and conclusions in relation to Count 3 to be sound, being satisfied beyond reasonable doubt that the appellant's representation was false and that the funds were not used for development costs as represented. The court's decision implicitly upheld the convictions for Count 3, while the provided text indicates acquittals for Counts 1, 2, 5, 6, and 7 due to insufficient proof of certain elements of deception.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There was no challenge to this distillation of the elements at trial, or on appeal.The evidence The prosecution called evidence from each of the complainants, as well as Mr Papagiannis and Mr Warren, and a detective involved in the investigation of the appellant’s alleged offending. The prosecution also relied upon a number of documentary exhibits, including not only the relevant option agreements and communications with the complainants (and other residents of Thorngate), but also the banking records for the various accounts held by the appellant. Several documents were tendered in the defence case. However, the appellant did not give evidence. Nor was any other oral evidence called in the defence case.The defence case The defence did not dispute the third element of the offence of deception (as distilled by the trial judge), namely that the appellant received the financial advantage alleged in each of the counts. However, the defence put the remaining elements in dispute. In particular, the defence contended that the prosecution failed to prove beyond reasonable doubt that the appellant made the alleged representations to the complainants as to the purpose for which he was requesting the monies (element (i)); that the appellant did not use the monies for the stated purpose (elements (ii) and (v)); and that the (alleged) representations caused the appellant to obtain a financial advantage (element (iv)). By way of elaboration upon this last issue, the defence contended that the evidence did not exclude as a reasonable possibility that the monies advanced by the complainants were advanced in order to secure an increase in the purchase price in the relevant option agreement (and associated sale agreement), which increase was made, and that they were not advanced in response to any alleged representation by the appellant that the monies would be used for any specified purpose.The verdicts The trial judge found the appellant not guilty of Counts 1 and 2.[4] The essence of the trial judge’s reasoning was that she was not satisfied beyond reasonable doubt that the appellant specified the alleged purpose for the monies that were paid by the complainants, or that the complainants paid the monies for that purpose. The judge could not exclude, as a reasonable possibility, that the request and payment were predicated upon a loan by the complainants to the appellant, albeit in circumstances where the appellant was carrying costs associated with the development and with the complainants being keen for the development to proceed and to be involved in it.[4] Reasons at [504]-[542]. The trial judge also found the appellant not guilty of Counts 5, 6 and 7.[5] Her Honour did so for similar reasons to those applicable in respect of Counts 1 and 2. Whilst again not doubting the honesty of the complainant’s evidence, she was not satisfied beyond reasonable doubt that the appellant made a representation to the complainant (Mr Ragnelli) that if he advanced him the monies requested, they would be used for the relevant purpose (development costs), and that such representation caused Mr Ragnelli to advance sums he transferred to the appellant. Her Honour could not exclude as a reasonable possibility that the funds were advanced in the general context alleged, but on the basis of a request and understanding that the funds were by way of a loan to assist Mr Ragnelli. There was evidence to the effect that the appellant and Mr Ragnelli had each lent or advanced funds to assist the other during the relevant period in order to help the other out.[5] Reasons at [602]-[627].

Decision

Reasons for decision

The judge then set out the detail of her analysis of the banking records. This included the use made of the funds transferred to the appellant by the complainant on Counts 3[17] and 4,[18] Mr Komninos. Her Honour identified that those funds were used to meet a range of personal expenses, with none of them referrable to development costs of the type mentioned above.[17] Reasons at [464]-[471].[18] Reasons at [479]-[487].Findings and conclusions in relation to Count 3 The trial judge then set out her additional findings, and conclusions, in respect of each of the individual counts. Her Honour dealt separately with Counts 3[19] and 4.[20][19] Reasons at [543]-[568].[20] Reasons at [569]-[601]. Addressing the first element of the Count 3 offence – that the appellant made the alleged representation – the judge noted that the prosecution relied upon the evidence of Mr Komninos. The judge said that Mr Komninos was an impressive witness. He gave his evidence in a calm and considered manner, without embellishment. He made concessions as and when appropriate. He was clearly an honest witness. The judge then set out a summary of Mr Komninos’ evidence as to the representations made to him leading up to his November 2015 payments, concluding that she was satisfied beyond reasonable doubt that the appellant made the relevant representation, and that it was this representation that caused Mr Komninos to pay $17,000, by way of two transfers of $8,500 each.[21] In this way, the accused obtained a financial advantage or benefit of $17,000.[22][21] Reasons at [550]-[561].[22] Reasons at [562]. Referring back to her earlier findings as to the use made of these funds, the judge found that the funds were not used to pay for architectural drawings, or indeed any other development costs, and hence that the appellant’s representation as to the use of the funds was false or misleading:[563]I refer to my discussion at paragraphs 464 to 471 as to the use of the $17,000 transferred to the accused by Mr Komninos. The funds provided can be traced as outlined therein. Those funds were not transferred to any other account held by the accused from which he could have theoretically made payment of development related expenses.[564]Although some of the funds were withdrawn in cash by the accused, I refer to my findings as set forth in paragraphs 435, 438, 439 and 447 to 450 as to the accused’s role in the development and the resulting expenses thus incurred by him in performing that role. Even if there was any responsibility for the accused to pay for project development costs, including architectural drawings, which there was not, I exclude as a reasonable possibility, that cash withdrawn by the accused was used to make such payments. This was a large commercial development. Any such expenses incurred and paid for would, by necessity, for taxation purposes, be properly documented and traceable.[565]I am satisfied beyond reasonable doubt that the accused did not use any of the $17,000 transferred to him by Mr Komninos to fund architectural drawings (or engineering drawings or studies for the development), as represented by the accused to Mr Komninos. Rather, I am satisfied beyond reasonable doubt that the accused used the $17,000 to fund his own lifestyle. [566]I am satisfied beyond reasonable doubt that the accused’s representation was false or misleading, in that he did not need money for development costs, including architectural concept drawings.

Ratio Decidendi

Legal Principle Established

In the circumstances, we are satisfied that the trial judge’s reasons in relation to the quantum of the contribution were adequate, indeed clear. There was no need for the judge to elaborate upon the issue any further given that it was not suggested that the change from the contemplated sum of $15,000 to the sum of $17,000 was relevant from a causation perspective, or to the issue of dishonesty. Mr Komninos’ due diligence and consideration of the Warren agreement The appellant complains that the trial judge’s reasons do not adequately address the significance of Mr Komninos’ due diligence, and consideration of the Warren agreement, prior to him making the payments the subject of Count 4. At paragraph [578] of her reasons, within the section of those reasons addressing the verdict for Count 4, the trial judge mentioned the 28 January 2016 conversation between Mr Komninos and the appellant, during which Mr Komninos told the appellant that he was between jobs, but may be willing to ‘invest’ an amount in the development, subject to him undertaking appropriate due diligence, including seeing a copy of the Warren agreement. The judge did not return to the issue of Mr Komninos’ desire to undertake appropriate due diligence, or to see a copy of the Warren agreement, prior to reaching her verdict on Count 4. The appellant contends that the judge was required to address this issue further, arguing that the evidence revealed that Mr Komninos was shown the Warren agreement during a subsequent meeting with the appellant on 3 February 2016, and that having seen the agreement, he ought to have appreciated that clause 2F of the agreement provided that appellant had no obligation to meet development costs. The appellant contended that this was relevant to whether Mr Komninos was misled at all in relation to the use to be made of the funds he transferred to the appellant. The difficulty with the appellant’s argument is that it does not have adequate regard to the evidence on this issue, and the way in which it featured in the forensic contest between the parties. Earlier in her reasons,[66] the trial judge set out Mr Komninos’ evidence in relation to his 28 January 2016 conversation with the appellant in some detail. She quoted his evidence to the effect that he told the appellant that he wanted to do his due diligence, including seeing the Warrant agreement. Mr Komninos said he was told by the appellant that he could see the agreement, but could not take a copy of it, and that the appellant agreed to bring the agreement to their next meeting for Mr Komninos to have a look at it.[66] Reasons at [263]-[265]. Turning to the 3 February 2016 meeting, the judge referred to Mr Komninos’ evidence that the appellant brought the Warren agreement with him, and that Mr Komninos “flicked through the contract”.[67][67] Reasons at [266]. The judge then addressed the detail of Mr Komninos’ evidence as to the conversation that occurred on 3 February 2016, which included a discussion of the role of Warren Design, the prospect of them doing a larger development, and the likelihood of the development going ahead.