Collins v The Queen - [2020] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
COLLINS v THE QUEEN
[2020] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Stanley)
12 October 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
The appellant was convicted following trial by jury in the District Court of seven counts of obtaining a benefit by deception in contravention of section 139(a) of the Criminal Law Consolidation Act 1935 (SA).
The appellant appeals against his convictions on six grounds:
1. the trial Judge erred in ruling that there was a case to answer on each count because deposits into the bank account of Fountaingate International Corporation Pty Ltd did not in themselves result in a financial advantage to the appellant;
2. the verdict of guilty of count 2 was unreasonable and not capable of being supported having regard to the evidence;
3. the Judge erred in refusing to admit proposed evidence by a forensic accountant, Hugh McPharlin, on the topic of financial advantage;
4. the Judge erred in her directions to the jury on the topic of financial advantage;
5. the Judge erred by failing to direct the jury about the impermissible uses of evidence relating to count 1 in proof of counts 2 to 7; and
6. the Judge erred by failing to direct the jury about any permissible use and the impermissible uses of evidence relating to counts 2 to 7 in proof of count 1.
Held per Blue J (Peek J and Stanley J agreeing) dismissing the appeal:
1. The Judge did not err in ruling that there was a case to answer on the issue whether the deposits into the bank account of Fountaingate International Corporation Pty Ltd, being a company of which the appellant was the sole shareholder and he and his wife were the directors and account signatories, resulted in a financial advantage to the appellant (at [113]).
2. The verdict of guilty of count 2 was not unreasonable or incapable of being supported having regard to the evidence (at [121]).
3. The Judge was correct in refusing to admit the proposed evidence by Mr McPharlin on the topic of financial advantage (at [128]).
4. The Judge did not err in her directions to the jury on the topic of financial advantage (at [137]).
5. The Judge erred by failing to direct the jury about the impermissible uses of the evidence relating to count 1 in proof of counts 2 to 7 or about any permissible use and the impermissible uses of the evidence relating to counts 2 to 7 in proof of count 1 (at [150], [158]).
6. Nevertheless, the errors by the trial Judge did not result in a miscarriage of justice and the proviso should be applied (at [166]).
7. Appeal dismissed (at [167]).
Criminal Law Consolidation Act 1935 (SA) ss 130, 139; Criminal Procedure Act 1921 (SA) s 158(2); Evidence Act 1929 (SA) ss 34P, 34R, referred to.
R v Bilick and Starke (1984) 36 SASR 321, applied.
Coelho v Durbin (Unreported Supreme Court of New South Wales, 29 March 1993); OKS v Western Australia (2019) 265 CLR 268; R v Donjerkovic [2012] SASCFC 2; R v Saba [2014] 2 Qd R 408; Royall v The Queen (1991) 172 CLR 378; Taylor v The Queen (2019) 59 VR 163, discussed.

COLLINS v THE QUEEN
[2020] SASCFC 96
Court of Criminal Appeal: Peek, Blue and Stanley JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J: This is an appeal against conviction.
The appellant, Robert Wayne Collins, was convicted following trial by jury in the District Court of seven counts of obtaining a benefit by deception.[1]
[1] Criminal Law Consolidation Act 1935 (SA) section 139(a).
The appellant appeals against his convictions on six grounds:
1the trial Judge erred in ruling that there was a case to answer on each count because deposits into the bank account of Fountaingate International Corporation Pty Ltd did not in themselves result in a financial advantage to the appellant (ground 1);
2the verdict of guilty of count 2 was unreasonable and not capable of being supported having regard to the evidence (ground 6);
3the Judge erred in refusing to admit proposed evidence by a forensic accountant, Hugh McPharlin, on the topic of financial advantage (ground 3);
4the Judge erred in her directions to the jury on the topic of financial advantage (ground 2);
5the Judge erred by failing to direct the jury about the impermissible uses of evidence relating to count 1 in proof of counts 2 to 7 (ground 1); and
6the Judge erred by failing to direct the jury about any permissible and impermissible uses of evidence relating to counts 2 to 7 in proof of count 1 (ground 1).
Background
The alleged victims the subject of the seven counts of deception were as follows:
Count 1:Antonio de Pasquale in respect of $100,000 paid by him as a result of the appellant misrepresenting that the money was to be invested in establishing an international bank;
Count 2:Mr de Pasquale in respect of $78,750 paid by him as a result of the appellant misrepresenting that the money was to be invested in New York real estate;
Count 3:Geok Siew Lim in respect of $50,000 paid by her as a result of the appellant misrepresenting that the money was to be invested in New York real estate;
Count 4:Chii Rong Wu in respect of $50,000 paid by him as a result of the appellant misrepresenting that the money was to be invested in New York real estate;
Count 5:Julie Djunaedi in respect of $50,000 paid by her as a result of the appellant misrepresenting that the money was to be invested in New York real estate;
Count 6:Philip Charlton in respect of $50,000 paid by him as a result of the appellant misrepresenting that the money was to be invested in New York real estate;
Count 7:Colin Preston in respect of $8,000 paid by him as a result of the appellant misrepresenting that the money was to be invested in New York real estate.
A record of Certificate of Title volume 5446 folio 43, showing that Veronika Mohor had been the registered proprietor of a property at 3 Tasman Court, Hackham since 1997, was tendered at the trial.
A marriage certificate (registered 21 April 2009) certifying that the appellant and Ms Mohor were married on 10 April 2009 was tendered at trial.
An Australian Securities and Investments Commission (ASIC) company search dated 22 August 2017 showing the incorporation of Fountaingate International Corporation Pty Ltd (Fountaingate) in June 2010 was tendered at trial. It showed that the appellant had been the company’s sole shareholder since February 2011. It showed that the appellant and Ms Mohor were the sole directors of the company between September 2013 and March 2016.[2] It showed the principal place of business, and address of the two directors, as 3 Tasman Court, Hackham.
[2] There had been previous directors and shareholders of Fountaingate, but this was outside the relevant time period the subject of the seven counts.
An ASIC company search dated 22 August 2017 showing the incorporation of Thunda (Aust) Pty Ltd (Thunda) in February 2010 was tendered at trial. It showed that the appellant and Ms Mohor were the sole directors of the company between August 2013 and March 2016. It showed the principal place of business as 3 Tasman Court, Hackham.
National Australia Bank (NAB) Account Authority Card dated 6 February 2013 showing the appellant and Ms Mohor as authorised persons (signatories) for transactions (any one to authorise) on account number 15-258-3954 in the name of Fountaingate (the Fountaingate account) was tendered at trial. An affidavit by Amelia Do, an officer of the NAB, stating that the Bank’s records showed that these signatories were current throughout the existence of the account was tendered at trial. A set of bank statements for the Fountaingate account from its opening on 5 February 2013 to 2 February 2015 was tendered at trial.
NAB Account Authority Card dated 6 February 2013 showing the appellant and Ms Mohor as signatories for transactions (any one to authorise) on account number 15-251-6620 in the name of Fountaingate (the Fountaingate no 2 account) was tendered at trial. Ms Do’s affidavit stated that the NAB’s records showed that these signatories were current throughout the existence of the account. A set of bank statements for the Fountaingate no 2 account from its opening on 5 February 2013 to 28 January 2015 was tendered at trial.
NAB Account Authority Card dated 6 February 2013 showing the appellant and Ms Mohor as signatories for transactions (any one to authorise) on account number 15-259-7897 in the name of the appellant (the Collins account) was tendered at trial. Ms Do’s affidavit stated that the NAB’s records showed that these signatories were current throughout the existence of the account, to the current date, as at 1 November 2019. A set of bank statements for the Collins account from its opening on 5 February 2013 to 2 February 2015 was tendered at trial.
A set of bank statements for a Bendigo and Adelaide Bank Mortgage Tamer Home Loan account number 071171923 in the name of Ms Mohor (the Mohor account) from 1 January 2013 to 31 January 2015 was tendered at trial.
Early dealings
Mr de Pasquale gave evidence at trial that in June 2013 he attended an introductory short seminar at an Adelaide hotel presented by a United States provider, Leading Financial, concerning investing in real estate in the United States. Ms Djunaedi, Ms Lim, Mr Wu, Mr Charlton and Mr Preston each gave evidence that they (in some cases with their partner) attended an introductory seminar by Leading Financial. Leading Financial presented the seminar at several alternative hotel venues.
Ms Djunaedi gave evidence that in July 2013 she and her husband attended a three day seminar at the Hilton Hotel presented by Leading Financial concerning investing in real estate in the United States. Ms Lim, Mr Wu, Mr Charlton and Mr Preston each gave evidence that they (in some cases with their partner) attended the same seminar. Ms Djunaedi and Mr Charlton each gave evidence that they met the others at the seminar and also that they met the appellant and his wife.
Ms Djunaedi gave evidence that in August 2013 she and her husband attended a multiple day seminar, called ‘Boots on the Ground’, at the Stamford Hotel presented by Leading Financial concerning investing in real estate in the United States. Mr de Pasquale, Ms Lim, Mr Charlton and Mr Preston each gave evidence that they also attended the seminar. Ms Djunaedi, Mr de Pasquale, Ms Lim, Mr Charlton and Mr Preston each gave evidence that they met up with the others at the seminar and also that they met up with the appellant and his wife. Mr Wu gave evidence that he did not attend the seminar as he was overseas.
Mr Charlton, Ms Djunaedi, Mr de Pasquale, Ms Lim and Mr Preston each gave evidence that subsequently Mr Charlton organised a meeting of the group (including the appellant and his wife) at the Naval and Military Club (the Military Club). Ms Lim gave evidence that this first meeting was on 23 August 2013. Each witness gave evidence that there were several meetings of the group at the Military Club.
Mr de Pasquale gave evidence that up to 19 different groups or couples attended meetings at the Military Club, but gradually they dropped off and it was whittled down ultimately to a group of six. Ms Djunaedi gave evidence that two individuals, Djonny and Cha, also attended group meetings, but ultimately neither invested monies with the appellant as part of the group.
Ms Djunaedi, Mr de Pasquale, Ms Lim, Mr Wu, Mr Charlton and Mr Preston, prosecution and defence counsel and the Judge at trial referred to the group of six as “the investors”. For ease of reference I refer to them collectively as the investors.
Ms Djunaedi gave evidence that in November 2013 she and her husband attended a multiple day summit in Brisbane presented by Leading Financial concerning investing in real estate in the United States, at which various properties were available for purchase. Mr de Pasquale, Mr Charlton and Mr Preston each gave evidence that they also attended the summit. Ms Djunaedi, Mr de Pasquale, Mr Charlton and Mr Preston each gave evidence that they met up with the others and the appellant and his wife at the seminar. Ms Djunaedi gave evidence that there were discussions at meetings leading up to the summit about properties that members of the group would like to buy and the desirability of purchasing properties that would generate a passive income.
Ms Lim and Mr Wu gave evidence that Ms Lim invited the group members to a Christmas dinner on 7 December 2013 to meet Mr Wu and his wife.
Payment of $100,000 by Mr de Pasquale
Mr de Pasquale gave evidence that, during the summit in Brisbane, the appellant referred to an international bank that had been closed. The appellant said that he wanted to resurrect the bank and “if we can resurrect that, that will be able to do lots of things”. The appellant said that, if resurrected, the bank would be in a position to fund projects and investments. The appellant said that he knew one of the head people at Citibank by the name of Mohammad al Saud, with whom he was friends because he had helped his son out in some trouble 30 years before.
Mr de Pasquale gave evidence that he subsequently told the appellant that he was due to inherit $250,000 from his father’s estate. He told the appellant that he was interested in being involved in the resurrection of the international bank but he could not really do anything until he knew that he had the money. He told the appellant that he was interested in utilising his skills in projects involving renewable energy and affordable housing. The appellant said “you know, you need a bank for that. You don’t want to be paying banks, you want to be the bank”.
Mr de Pasquale gave evidence that the appellant subsequently mentioned the name Caribbean Bank of Credit as the bank that he was resurrecting.
Ms Djunaedi gave evidence that, during the course of one of the group meetings, the appellant said that he had been a merchant banker previously and he had a bank in America that he had let lapse and he would reinstate it. She later learnt that this was the Caribbean Bank of Credit.
Ms Lim gave evidence that at a group meeting on 6 March 2014 the appellant said that he had resurrected a bank and that they were going to use that bank. He said that the name of the bank was the Caribbean Bank of Credit.
Mr Charlton gave evidence that the appellant said that he was going to resurrect an old bank that he had control over many years ago through his merchant banking system called the Caribbean Banking Company of New York (Mr Charlton was not sure of the precise name), which the appellant and a lawyer that he knew in New York were going to manage as a private bank.
Mr Preston gave evidence that the appellant said that the Caribbean Bank of Credit was his and an associate’s bank, they were going to reopen it, it was based in New York, and it was going to be staffed by members of Citibank.
Mr Wu gave evidence that on 4 April 2014 the appellant gave some information about the Caribbean Bank of Credit, which he and his partner were going to resurrect, and, being members of the Hudson River Property Corporation New York, the investors were invited to become customers of the bank.
Mr de Pasquale gave evidence that he was notified that the money comprising the inheritance from his father arrived on 17 February 2014. He telephoned the appellant. He said that the money was finally coming and he was ready to invest the $100,000 to resurrect the bank. He asked the appellant what was happening. The appellant said that that was good. Mr de Pasquale asked the appellant to whom he should write out the cheque. The appellant said Fountaingate.
Mr de Pasquale gave evidence that on 18 February 2014 the appellant collected from him a cheque that he had made out to Fountaingate for $100,000. On the following day, the appellant telephoned him and said that the cheque had bounced. Mr de Pasquale made out another cheque to Fountaingate for $100,000 dated 20 February 2014 and the appellant collected the cheque on the same day.
The bank statements for the Fountaingate account show a credit of $100,000 for a cheque deposit on 18 February 2014, and a debit of the same amount referable to “A Depasquale” on 19 February 2014. They show a credit of $100,000 for a cheque deposit on 21 February 2014.
Mr de Pasquale gave evidence that he subsequently received an email dated 18 February 2014 from [email protected] purporting to be from Alexandra Meitzer. The email was tendered at trial. It included an acknowledgement of receipt of $100,000 “for our esteem client Fountaingate International Corporation Pty Ltd”; a statement that on clearance of the funds Credit Suisse would issue a bankers guarantee for $200,000 “cashable four months or a date soonest”; and “the funds are to be used at your instruction for the purpose of a shareholding in a USA Private bank to be set up or any other project”. The email also referred to Fountaingate offering Mr de Pasquale “a position as a consultant at the time of all matter released by the PNG government”.
Mr de Pasquale gave evidence that on 16 March 2014 he and his wife attended a dinner at a restaurant at Marion in company with the appellant and his wife. The appellant told him that the resurrected international bank was going to be funding an infrastructure project in Papua New Guinea. The appellant gave him a Consulting Agreement and a Non Disclosure and No Circumvention Agreement. The agreements were tendered at trial. The Consulting Agreement was between Fountaingate and Mr de Pasquale. It was signed by Mr Collins and Mr de Pasquale at the restaurant. The Non Disclosure and No Circumvention Agreement was between Fountaingate, the United States Department of State and Mr de Pasquale. It had purportedly already been signed by John Kerry in the presence of John McCain on behalf of the United States Department of State. It was signed by Mr Collins and Mr de Pasquale at the restaurant. It referred to the relocation of a military base from Japan to Papua New Guinea.
Ms Djunaedi gave evidence that on 3 April 2014 she received an email from the appellant addressed to the investors. The email was tendered at trial. The email commenced:
Hi fellow Adelaide Property Investors
I have just received the good news from New York 0700 hours over there.
The Bank Caribbean Bank of Credit Ltd has been approved and accepted as private bank in the USA by Federal Deposit Insurance Corporation, the Federal Reserve Board, and the Office of the Comptroller of the Currency. This is great news for me and us This mean (sic) we can release the account opening forms by the end of next week for LLC account and personal accounts.
…
In various subsequent emails from the appellant and minutes of meeting, which were tendered at trial, there were references to accounts for each investor’s LLC with the Caribbean Bank of Credit.
Disposition of $100,000
The bank statements for the Fountaingate account show that, immediately before the credit of $100,000 on 21 February 2014, the balance of the account was only $1,610.13. There were relatively minor debits and credits on the rest of 21 February, 24 February and part way through 25 February 2014, leaving a balance of the account of $101,752.77.

Fiona Panagis gave evidence that she is employed by South Australia Police as a forensic accountant. She was provided with bank statements for the four bank accounts referred to above, together with certain vouchers obtained from the NAB in respect of debits to those accounts. She gave evidence that she undertook a tracing exercise to determine how the funds comprising $100,000 were disbursed. She prepared a spreadsheet showing that disbursements between the rest of 25 February and 7 March 2014 included the following:
·25 February               $20,000     transfer to the Fountaingate no 2 account
·25 February               $1,000      transfer to the Mohor account
·25 February               $60,035     transfer to Simpson Shipping Agencies
·26 February               $4,000      transfer to the Collins account
·26 February               $10,000     transfer to the Fountaingate no 2 account
·28 February               $200         ATM withdrawal
·4 March  $500         ATM withdrawal
·7 March                      $200         ATM withdrawal
The bank statements for the Fountaingate no 2 account show that, immediately before the transfers totalling $30,000 made on 25 and 26 February 2014, the balance of the account was only $20. The bank statements show the following transfers were then made out of the account:
·4 March             $1,000               rc
·10 March          $3,000               roof
·14 March          $10,000             roof
·17 March          $1,000               trs
The bank statements for the Collins account show that the transfer of $1,000 on 4 March 2014 from the Fountaingate no 2 account was transferred into the Collins account.
Payment of $286,750 by group members
Mr de Pasquale gave evidence that, at a meeting of the group at the Military Club in February 2014, Mr Charlton said that he had been looking at apartment blocks containing between four and eight apartments and suggested that it would be simpler if the group combined to purchase an apartment block or blocks which would have more income for them all. Mr de Pasquale said that it was a good suggestion and said to the appellant, “Rob, you were saying that you knew some properties in New York”. The appellant said that he did have a property that he was interested in: it was in New York, it was one of the properties that Citibank needed to get bought because so many properties were being repossessed, Citibank just wanted to on-sell them and divert the responsibility to somebody else and he had an offer of it from Citibank.
Mr de Pasquale gave evidence that the appellant said that the building was a multi-storey apartment building. The appellant said that the group would need to set up a corporation or trust to purchase the property. The appellant said that Citibank would finance the purchase by an interest only loan. The appellant said that Citibank was already maintaining the property through its own agencies. The appellant said that he had a lawyer in New York by the name of Alex Bohler, who could help the group set up the Corporation to purchase the property.
Mr Preston gave evidence largely to the same effect as Mr de Pasquale, although, as to be expected, his recollection of the detail of what the appellant said varied in minor respects from the recollection of Mr de Pasquale. He said that the appellant said that he had a personal relationship for 30 years with a sheik, who was the head of Citibank, and whose son’s life the appellant had saved. Mr Charlton, Mr Wu, Ms Lim and Ms Djunaedi gave evidence largely to the same effect as Mr Preston (although Ms Lim and Ms Djunaedi thought the meeting was in March 2014 and Ms Djunaedi did not say that the appellant referred to the sheik on this occasion).
An email dated 18 March 2014 from the appellant’s email address [email protected] to Mr Charlton was tendered at trial. It included the following passages:
I have a little information on the large apartment block
In short, the setting up of a C Corp (same as a public company here in Aust the cost is $USD435,000
I have had a close association with Citi Bank I befriended the owners of this bank in the 1980’s and we have been close in business since
The cost of this building in New York is $USD4,000,000 and the valuation is $USD11,500,000
The net return after tax is $USD127,000 and if ten were involved $112,700 each and after tax $USD99739
This return is after all the loan interest fees have been paid and all taxes and fees plus a 1% holding amount for repays (sic) when needed all which is included
The building was completely refurbished in November 2013 an (sic) the occupancy is 100% with a waiting list because this is in the middle of New York
The building has a property manager on site
All of due diligence has been completed and title is guaranteed
…
Mr de Pasquale, Mr Preston, Mr Charlton, Mr Wu, Ms Lim and Ms Djunaedi gave evidence that there was another meeting of the group at the Military Club on 21 March 2014. Ms Djunaedi gave evidence that Gemma Girke (Mr Preston’s partner) prepared minutes of the meeting, which were tendered at trial.
Mr Wu, Ms Lim and Ms Djunaedi gave evidence that on 23 March 2014 they received, from the appellant’s email address, two emails to members of the group (which included Djonny at that stage) referring to discussions at the 21 March 2014 meeting. The emails were tendered at trial.
The first email was sent at 3.32 am. It included the following passages:
Hi fellow corporate partners
…
Following our meeting on Friday the 21th March 2014 when an agreement was reached to go forward with the C Corp possible an S Corp The reason an investigation has to be made for the rest for each partners taxation liability being C Corp public unlisted company is the Tax benefit as the company is taxed at the much less personal tax rate. The agreement was to fund the cost as a group. It was stated that the work would commence with an injection of $USD150,000 and I would put in $USD50,000 then it was decided that each party would put in $AUD15,000. I took this word as being what was going to happen and I have committed myself to the Attorney to proceed.
…
I advised all the set up costs would be Max $USD430,000.00 and possibly under that amount, this figure would be fully negotiated and tabled as we move forward.
…
… the due diligence is guaranteed by the bank and nothing will be forwarded until the c corp is set as was told at the meeting. I personally have not seen inside and I do not want to I will take the word of the bank. I will proceed with the setting up of the c corp which is the first step.
…
The banking detail FOR THE $AUD100,000 ($AUD15,000) EACH IS
NATIONAL AUSTRALIA BANK
ACCOUNT: FOUNTAINGATE INTERNATIONAL CORPORATION PTY LTD
BSB: 085741
ACCOUNT NUMBER: 152583954
PLEASE MAKE THE TRANSMISSION: US HOUSING CORPORATION AND YOUR NAME
The second email was sent at 11.06 pm and included the following passages:
Fellow partners
The owners of the trust that hold all the shares in Citi Bank have recommended this firm of accountants to handle all of our tax matters (including all personal matter) I will call them tonight
I have also been advised to file a Delaware Compay (sic) with a bank account for the corporation and separate accounts for each of us (there are no taxes in a Delaware company) the attorney is investigation (sic) tonight US time
The name we must decide on the 4thI thought this was up to the girls they are better with names (I do not care much the “one corporation” will do ha ha)
On the 4th I need also all the names address (sic) and birthdates of all the partners and the LLC names to put into the documents,
…
This venture will be profitable and exciting.
Ms Djunaedi, Mr de Pasquale, Mr Charlton, Mr Wu, Ms Lim and Mr Preston gave evidence of the discussions at the meeting consistent with the appellant’s two emails. They said that the appellant said that, if they wanted to proceed, they needed to pay to him $15,000 each by 4 April 2014. They said that, if they wanted to proceed, each member of the group would need to nominate a name for their LLC to hold shares in the C or S Corp. They said that the appellant said that there were another five properties which could also be purchased by the Corporation.
Ms Lim and Ms Djunaedi gave evidence that on 26 and 27 March 2014 and 1 and 3 April 2014 they received from the appellant further emails. Each email was tendered at trial.
The 26 March 2014 email included the following passages:
2. Task two each person to nominate a name for their New Your (sic) LLC
…
The main Corporation now a S corp partnership corporation as the new tax laws are better this way.
Instruction have been given (sic) for all LLC’s and names to be joint directors and joint CEO’S this means that the LLC get an operation card (similar to a green card) and the person get (sic) the green card.
…
I have committed to pay all the fees because I did not want to sit around any longer with these buildings. Please do not drop out as I do not want to cover all the fees.
Next question
Citi Bank directors have been request (sic), seeing we are doing the one building why don’t we put the other five in the corporation (the cost would be covered with the initial fees and no extra) I do not want to scare anyone but the income of the other five and (sic) similar to the first one.
Property management
They have a caretaker/property in each building and then they have a section of Citi Bank that runs to complete property management and they distribute the funds to us weekly …
…
The six buildings have a net turn over after tax of $USD997,390 that would be $USD99,739 for 10 is (sic) we only have 8 then it would be $USD124,673.75 after tax for each building.
….
The 27 March 2014 email included the following passages:
The loans against these buildings is a business corporate loan of 0.5% pa interest only fixed with no time limit and good business would be it is never paid off until we perhaps sell one of the buildings (which would stop the passive income) The loan is never paid off, the income that was advised is net after tax. The interest payments have been taken from the gross income. And the net received weekly is, after all fees and tax has been deducted.
…
Djonny will not be involved because he has overextended himself …
…
The 1 April 2014 email included the following passages:
The total fees have been negotiated and fixed and they are $AUD350,000.00 about $US325.000.00
The figure is for the total set up and all the LLC’s for the corporation and two each for each of us. If there is six then it would be AUD$43333.33 say $43,000 each which is a lot better for all. It would be better to have the seventh person.
As soon as we agree on a name on Friday it will be submitted Friday 4^th and approval will be on that day in the US then we have to put in all the total fees. The attorney and accounting firm as going forward on my promise and first commitment of $AUD150,000 which has been paid into trust.
…
The 3 April 2014 email included the following passages:
The next set (sic) is to get all the fees in as quickly as possible…
What we need is for the remainder of the fees to come in so we can pay the necessary registration fee. The maximum guaranteed amount is equal to $350,000 less what has already been paid (i.e. the $15,000) each. I have guaranteed this but the need the funds in (sic) and I have used most of mine for the bank as I do not have time to redeem some of the cash on call. We need to get this in place.
…
The bank statements for the Fountaingate account show transfers of $15,000 by each of Ms Lim, Mr de Pasquale, Mr Wu, Ms Djunaedi and Mr Charlton as follows:
·Ms Lim  24 March 2014;
·Mr de Pasquale          24 March 2014;
·Mr Wu  25 March 2014;
·Ms Djunaedi              28 March 2014;
·Mr Charlton               31 March 2014.
Ms Lim, Mr de Pasquale, Mr Wu, Ms Djunaedi and Mr Charlton each gave evidence that they made those transfers. Mr Preston gave evidence that due to financial difficulty the appellant permitted him and his partner to pay a reduced deposit of $8,000. This payment is reflected in the Fountaingate bank statements as paid on 24 April 2014.
Mr Wu, Ms Lim and Ms Djunaedi gave evidence that there was another meeting of the group at the Military Club on 4 April 2014. Ms Djunaedi gave evidence that minutes of the meeting were prepared, which were tendered at trial. They recorded Ms Djunaedi as Minute Secretary.
The minutes recorded that Cha was an apology. It was agreed that Cha would be included as a partner if her money was received by the end of that day. It was agreed that the name of the corporation was to be Hudson River Property Corporation New York. Everyone would give to the appellant the names of the personal LLCs and LLPs by 9 April 2014. The appellant handed out documents, including a copy of an email from the Al Saud Family Trust agreeing to sale of the six properties and guaranteeing the rent for the first 10 years. The appellant confirmed that the interest rate on the loan was 0.5 per cent per annum. The appellant said that one of the group’s buildings was next to the Donald Trump Building.
The email purportedly from the Al Saud Family Trust was tendered at trial. The prosecution case is that this email was fabricated by the appellant. The sender’s email address was [email protected]. It included the following passages:
Good day to our friend Rob (known as Capt Kangaroo to us) and all the partners in the New York Corporation for all the buildings
I as chairperson (sic) for the Al Saud family trust owners and controllers of Citi bank worldwide
…
The email then set out the rental returns for each of the six buildings and said that they were guaranteed for 10 years. It said that each property was controlled by the property management of “Citi bank” and all properties had been renovated or refurbished.
The bank statements for the Fountaingate account show transfers or deposits of the following amounts by Ms Lim, Mr Wu, Mr de Pasquale, Ms Djunaedi, Mr Charlton and Mr Preston as follows:

Ms Lim

Mr Wu

Mr de Pasquale

Ms Djunaedi

Mr Charlton

Mr Preston

March 14[3]

$15,000

$15,000

$15,000

$15,000

$15,000

4 April 14

$20,000

7 April 14

$28,750

$63,750

$28,750[4]

9 April 14

$15,000[5]

11 April 14

$35,000

22 April 14

$6,250

$6,250

24 April 14

$8,000

Total

$50,000

$50,000

$78,750

$50,000

$50,000

$8,000

[3] See [55] above.
[4] Transfers of $8,750 and $20,000.
[5] Transfers of $5,000 and $10,000.

Ms Djunaedi and Mr de Pasquale each gave evidence that after the meeting on 4 April 2014 they expected that, if there were eight investors (including the appellant), each investor would contribute $43,750 and, if there were seven investors (including the appellant), each investor would contribute $50,000. Ms Djunaedi gave evidence that she paid $28,750 on 7 April 2014 in the hope that there would be eight investors and then paid the additional $6,250 on 22 April 2014 when it became apparent that there were only seven investors.
Mr de Pasquale and Mr Preston gave evidence that they agreed that Mr de Pasquale would pay $35,000 to the appellant as a contribution on behalf of Mr Preston and on 4 April 2014 they signed a loan contract, which was tendered. The loan contract provided that Mr de Pasquale would lend to Mr Preston $35,000 on 4 April 2014 for one year.
Mr de Pasquale gave evidence that the payment he made on 7 April 2014 of $63,750 comprised $28,750 paid on his own behalf and $35,000 paid on behalf of Mr Preston. He said that the appellant told him not to worry about paying the balance of $6,250 at that stage because Mr de Pasquale was a member of the international bank and the bank was looking after it.
Mr Wu, Ms Lim and Ms Djunaedi gave evidence that on 16 April 2014 they attended a meeting styled as a meeting of Hudson River Property Corporation New York. Ms Djunaedi gave evidence that she prepared minutes of the meeting, which were tendered at trial. The minutes recorded, amongst other things, that the appellant presented Corporation certificates for everyone. A purported certificate of incorporation of Hudson River Property Corporation New York purportedly filed by Alex Bohler was tendered.
Mr Preston and Ms Djunaedi gave evidence that they received an email from the appellant on 18 May 2014. The email stated, amongst other things, that the final buildings would be transferred to their Corporation on the following day. It attached details of the six condominiums acquired by Hudson River Property Corporation New York, including addresses and photos. The addresses were:
·9-17 Central Park West, New York;
·41-50 Central Park West, New York;
·21-25 Central Park West, New York;
·65 Central Park West, New York;
·115 Central Park West, New York; and
·9-27 West 57th Street, New York.
Mr Preston, Mr Wu, Ms Lim and Ms Djunaedi gave evidence that after 18 May 2014 the appellant continued to send emails to the investors and they continued to have meetings (purportedly meetings of Hudson River Property Corporation New York). Emails and minutes of meeting were tendered at trial.
Mr de Pasquale, Mr Preston, Mr Charlton, Mr Wu, Ms Lim and Ms Djunaedi gave evidence that they never received any rent or other payments as a result of their purported investment in and via Hudson River Property Corporation New York.
Ms Djunaedi gave evidence that she went to see a police detective at the beginning of 2015 to report the conduct of the appellant and Ms Mohor.
Detective Tester gave evidence that he became involved in the police investigation on 17 January 2015. On that day, he undertook a search of the house at 3 Tasman Court, Hackham pursuant to a general search warrant. The appellant and Ms Mohor were both present. He seized various documents and a HP desktop computer. He printed off emails and other documents contained on the computer. They included emails in October to December 2014 from GoDaddy or Domains by Proxy to [email protected], which were tendered at trial, confirming the receipt and filling of orders for the following domain names:
·creditsuisseprivate.com;
·credit-suisse-private.com;
·credit-suisse-private.net;
·credit-suisse-private.org;
·credit-suisse-private.info;
·citibank-private.com;
·cbc-ny.com; and
·usstatedeptgov.com;
and the following email addresses:
·[email protected]; and
·[email protected].
Detective Tester gave evidence that he found a manila folder entitled “Corporation”, which was tendered at trial. It contained an uncompleted New York State Department of State certificate of incorporation together with a completed certificate for Hudson River Property Corporation New York, which matched the laminated certificate the investors said they were given by the appellant.
Farith Conguta gave evidence that he is employed by Citigroup in the United States and is based in Tampa, Florida. He is a Vice President and senior investigator with responsibility for fraud and other investigations in the United States. He has been employed by Citigroup for 24 years. Citigroup operates numerous businesses in the United States and worldwide, including Citibank.
Mr Conguta gave evidence that Citigroup maintains computer systems recording, amongst other things, its customers and properties in which it has an interest or over which it holds a mortgage. In 2017 he interrogated those computer systems to ascertain whether there was any record of Citigroup in the United States referring to Hudson River Property Corporation New York, the appellant, Ms Djunaedi, Mr Preston, Mr Wu, Mr de Pasquale, Ms Lim or Mr Charlton (or their partners). There was no record. He did not know what records might be kept by Citicorp in other countries such as Australia.

Mr Conguta gave evidence that he interrogated those computer systems to ascertain whether there was any record in respect of 9-17 Central Park West, New York; 41-50 Central Park, New York; 21-25 Central Park, New York; 65 Central Park West, New York; 115 Central Park West, New York; or 9-27 West 57th Street, New York. There was no record.
Disposition of $286,750
Todd Hughes gave evidence that in 2014 he was employed by the Mercedes Benz dealership at Mile End as a new car sales consultant. On 29 March 2014 the appellant and Ms Mohor came into the dealership and negotiated to purchase two Mercedes cars and discussed the purchase of a third in the near future. Mr Hughes prepared a contract for the purchase of each car, and the contracts were tendered at trial.
The first contract was for the purchase by Thunda of a second hand 2012 C63 Sedan for $141,900, to be paid as to $19,000 by a trade-in of a 2005 Mercedes Benz Coupe and the balance of $122,900 to be paid on or before delivery.
The second contract was for the purchase by Thunda of a new A250 Hatch for $61,000, to be paid as to $14,000 by a trade-in of a 2007 Volvo, $5,000 paid as a deposit and the balance of $42,000 to be paid on or before delivery.
Mr Hughes gave evidence that on 9 April 2014 the dealership received into its bank account a transfer of $164,900 from Fountaingate being the balance for the two vehicles required to be paid on or before delivery. The bank transfer was tendered at trial.
Mr Hughes gave evidence that on 11 April 2014 the appellant and Ms Mohor came into the dealership to collect the two vehicles. The appellant signed for the C63 Sedan and Ms Mohor signed for the A250 Hatch.
The bank statements tendered at trial showed that on 24 March 2014, immediately before the transfers by Ms Lim and Mr de Pasquale of $15,000 each, there was a balance of only $2,159.37 in the Fountaingate account. After the transfers, $21,000 was transferred to the Fountaingate no 2 account and $2,000 to the Collins account.
The bank statements tendered at trial showed that after receipt of $15,000 from each of Mr Wu and Ms Djunaedi on 25 and 28 March 2014 respectively, $15,000 was transferred to the Fountaingate no 2 account on each day. After receipt of $15,000 from Mr Charlton on 31 March 2014, $10,000 was transferred to the Fountaingate no 2 account and $5,000 to the Collins account.
The bank statements tendered at trial showed that after receipt of $20,000 from Ms Lim on 4 April 2014, $20,000 was transferred to the Fountaingate no 2 account. After receipt of $63,750 from Mr de Pasquale and $28,750 from each of Mr Wu and Ms Djunaedi on 7 April 2014, $58,000 was transferred to the Fountaingate no 2 account on that day and $4,000 to the Collins account on the next day.
The bank statements tendered at trial showed that on 9 April 2014 $100,000 was transferred back from the Fountaingate no 2 account to the Fountaingate account. The source of the $100,000 was transfers from the Fountaingate account, which in turn had been sourced from funds deposited by the investors. Also on 9 April 2014 a transfer of $5,000 was made by Ms Lim.
The bank statements tendered at trial showed that on 9 April 2014 $164,935 was debited to the Fountaingate account. A NAB teletransfer authority showed that this comprised $164,900 transferred from the Fountaingate account and $35 charges. The source of the $164,935 was funds deposited by the investors and the transfer of $100,000 from the Fountaingate no 2 account, which in turn had been sourced from funds deposited by the investors.
The bank statements tendered at trial showed that, after receipt of $10,000 from Ms Lim on 7 April 2014 and $35,000 from Mr Charlton on 11 April 2014, $40,000 was transferred to the Fountaingate no 2 account and $5,000 to the Collins account. Upon receipt of $8,000 from Mr Preston on 24 April 2014, $8,000 was transferred to the Fountaingate no 2 account.
Ms Panagis gave evidence that the bank statements for the Fountaingate accounts did not show any international transfer of funds to the United States or otherwise, which is apparent from the bank statements themselves.
The trial
At the commencement of the trial, before the jury was empanelled, the appellant made a no case submission on the ground that the element of the offence in respect of each count that the appellant obtained a benefit by way of financial advantage upon deposit of monies into the Fountaingate account could not, on the evidence taken at its highest, be made out. The trial Judge rejected that submission.
At the trial, the prosecution called the witnesses referred to above.
At the conclusion of the prosecution case, the appellant foreshadowed an intention to adduce evidence from a forensic accountant, Hugh McPharlin. Mr McPharlin gave evidence on the voir dire being the evidence that the appellant sought to adduce at trial. The trial Judge ruled that the evidence was irrelevant.
The appellant adduced evidence from Irimo Kelly and Dominic Sengi about communications with the appellant in 2011 about possible projects in Papua New Guinea. The appellant did not give evidence.
After retiring for three hours, the jury returned unanimous guilty verdicts on all seven counts.
No case to answer on obtaining financial advantage
Ground 1 of appeal is:
1.The learned trial judge erred at law by not ruling that the appellant had no case to answer in relation to counts 1 to 7 of the Information and by not directing the jury to acquit him of those counts (Trial Judge’s Ruling on 8 November 2019).
Particulars
1.1. The evidence was incapable of proving that the accused himself obtained a financial advantage, in the nature of money in the particular sums alleged in count 1 to 7, at the time the investors’ funds were first credited to the NAB bank account of Fountaingate International Corporation Pty Ltd.
1.2 The increases in the credit balance of the NAB bank account of Fountaingate, as a result of the deposits by the investors of their funds into that account, did not of themselves result in a financial advantage to the accused within the meaning of sections 130 and 139 of the Criminal Law Consolidation Act 1935.
Section 139 of the Criminal Law Consolidation Act 1935 (SA) (the Act) provides:
139—Deception
A person who deceives another and, by doing so—
(a) dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
…
Section 130 defines “benefit” to mean:
(a) a benefit of a proprietary nature; or
(b) a financial advantage; or
(c)a benefit of a kind that might be conferred by the exercise of a public duty in a particular way;
Section 130 defines “deception” to mean:
a misrepresentation by words or conduct and includes—
(a) a misrepresentation about a past, present or future fact or state of affairs; or
(b)a misrepresentation about the intentions of the person making the misrepresentation or another person; or
(c) a misrepresentation of law;
It is common ground that the relevant limb of the definition of benefit is limb (b), being a financial advantage.
The particulars of the benefit for each count were in common form, namely money in the sum of the amount deposited into the Fountaingate account.
It is common ground that the test on a no case to answer submission is as stated by King CJ (with whom Mohr J agreed) in R v Bilick and Starke:[6]
… The question of law is, whether on the evidence as it stands, the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt.[7]
[6] (1984) 36 SASR 321.
[7] At 335. (Emphasis in original).
In Taylor v The Queen,[8] Taylor had been charged with contraventions of section 82 of the Crimes Act 1958 (Vic), which provided that “A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence”. Priest and Beach JJA said of the concept of financial advantage:
We consider that some guidance as to the import of the term may be derived from the observations of Miles CJ in Fisher v Bennett, when his Honour said:
I do not think that it is necessary to resort to dictionary definitions of the word ‘financial’ or the word ‘advantage’. I think that it is inescapable that an 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 than 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.
Noting, as we do, the reluctance of Gray J to succumb to the temptation to elaborate upon the meaning of ‘financial advantage’, and acknowledging the dangers inherent in any attempt to reformulate the statutory language, we consider that a financial advantage occurs where a person is put in a favourable or superior economic, monetary or commercial position — a situation where the financial aspect is more beneficial than another — and would include a situation where a person is given the opportunity to earn remuneration in employment.[9]
[8] [2019] VSCA 162, (2019) 59 VR 163.
[9] At [98]-[99]. (Footnotes omitted).
The first (and highest) contention by the appellant is that he obtained no financial advantage because, if the funds were paid into the Fountaingate account by virtue of an operative misrepresentation, Fountaingate held the funds on a resulting trust for the investors and the investors remained beneficial owners of the funds.
It may be observed, as the appellant concedes, that, if this contention is good, it would apply equally if the investors’ funds had been deposited into a bank account in the name of the appellant.
I reject the appellant’s contention. The financial advantage required to be obtained by the defendant does not have to be a lawful advantage. The appellant contends that the word “lawful” should be read into the definition of benefit, but there is no warrant for such a reading in and it would be truly ironic in the context of an offence involving financial benefit being, by definition, unlawfully obtained. The question is not whether the defendant is entitled legally to take or retain the advantage, but whether factually the defendant has obtained a financial advantage. If the appellant’s contention were correct, it would largely emasculate section 139.
The second contention by the appellant is that he obtained no financial advantage upon the mere deposit of the funds into the Fountaingate account because something more was required before he obtained a financial advantage, namely withdrawal of the funds out of the account for use by him.
The appellant refers to the decision in R v Saba,[10] in which Saba had been charged with contravening section 408C(1)(d) of the Criminal Code 1995 (Qld), which made it an offence to dishonestly gain a benefit or advantage, pecuniary or otherwise, for any person. The charge was that Saba dishonestly gained a benefit for himself, namely control of two companies, by lodging with ASIC ‘484’ Forms falsely showing himself to be the sole director and shareholder of the companies. The Queensland Court of Appeal held that the mere appearance of control of a company was not a benefit within the meaning of the section. Jackson J (with whom Fraser JA and Applegarth J agreed) said:
Reduced to its core, the case submitted to the jury as to the “benefit or advantage” was that by submitting or causing the relevant forms to be electronically submitted …, the appellant gained the benefit or advantage comprising the opportunity that people might make the assumption in relation to dealings with each company that he had been duly appointed and had authority to exercise the powers and perform the duties customarily exercised or performed by a director.
But it was not contended that at the time when the appellant so acted there was any particular transaction in view which the change would directly affect, or any person in view who might make the assumption. No benefit or advantage of that kind was relied upon.
In my view, the potential that some person might make the assumption in the future is not a benefit or advantage for the purpose of s 408C(1)(d)…
…
... The submission of each electronic Form 484 may have formed part of some scheme whereby the appellant planned to defraud each company. But it was not itself a benefit under s 408C. It did not confer an advantage on the appellant by itself. It was at most a step along the way towards gaining some unidentified advantage.[11]
[10] [2013] QCA 275, [2014] 2 Qd R 408.
[11] At [47]-[50].
I reject the appellant’s contention. The prosecution case in the present case was that he procured payment of the funds by the investors into the Fountaingate account for the purpose of using those funds for his own benefit and the offence was complete upon deposit of the funds into the account. The appellant had immediate control of the funds upon their deposit into the account because he was a signatory who could disburse the funds at will. He also had ultimate control of the funds because he was the sole shareholder of the company and thereby able to terminate Ms Mohor’s position as a director and signatory, leaving himself in sole control of the account. Provided that the prosecution proved the requisite plan by the appellant, by reason of the appellant’s control over the account, the deposit of funds into the account was a financial advantage to him.
The third contention by the appellant is that he obtained no financial advantage upon the deposit of the funds into the Fountaingate account as a signatory, because a signatory to a company bank account must not exercise powers on their own behalf, but only on behalf of the company principal, and hence any lawful advantage belonged to the principal company and not the agent signatory.
I reject the appellant’s contention. It relies on the same contention about a lawful financial advantage as his first contention. The focus of the section is upon a financial advantage in fact, rather than a lawful financial advantage. In addition, the appellant was not only a signatory, but also the sole shareholder of the company. As the sole shareholder, he had lawful control over the transactions of the company.
The fourth contention by the appellant is that he obtained no financial advantage upon the deposit of the funds into the Fountaingate account as a director of the company because he owed fiduciary and statutory duties as a director to act in the best interests of the company. I reject the appellant’s contention for the same reasons as in respect of his previous contention.
The appellant contends in the alternative to the above contentions that, even if he obtained a financial advantage in a qualitative sense, the prosecution did not prove that he obtained a financial advantage to the value of the amount alleged in the Information, for example $100,000 in respect of count 1.
The appellant cites the following passage from the judgment of Badgery-Parker J in Coelho v Durbin:[12]
… it does seem to me to be the essence of the concept of financial advantage that the person alleged to have obtained such has obtained a benefit which can be valued in terms of money and a benefit which can be seen to be financial as distinct from benefits of another kind.
[12] Unreported Supreme Court of New South Wales, 29 March 1993.
The formulation of the concept of financial advantage by the Victorian Court of Appeal in Taylor v The Queen[13] extracted above does not contain, and is inconsistent with there being, an element that the advantage must be capable of being valued in money, let alone that the value in money must be proved in a specific amount.
[13] (2019) 59 VR 163.
While the fact that an advantage is capable of being valued in money may be an indicium that the advantage is “financial” in a borderline case, it is not an essential element. In the present case, the advantage obtained by the appellant (if an advantage was proved) was clearly financial and no resort to indicia was required.
The appellant contends that the prosecution did not prove that the value to him, for example in respect of count 1, of $100,000 in the Fountaingate account was $100,000 (or any other specific value). That was not an element of the offence charged. Even if it had been, it would have been open to the jury to find beyond reasonable doubt that the value to the appellant was $100,000 because he had immediate and ultimate control of the Fountaingate account and the only other signatory and director was his wife.
The first ground of appeal is not established.
Verdict on count 2 unreasonable
Ground 6 of appeal is:
6.The conviction of the appellant on count 2 was unreasonable and was not supported by the evidence:
6.1    To convict the appellant on count 2, the jury had to be satisfied that between 1 February 2014 and 7 April 2014 he obtained a financial advantage of money in the sum of $78,750 from De Pasquale as a result of misrepresentations he made to De Pasquale.
6.2    De Pasquale’s evidence was that $35,000 of the $78,750 he paid into the Fountaingate bank account between 1 February 2014 and 7 April 2014 was paid as a loan to Preston and Girke. De Pasquale paid $35,000 into the Fountaingate bank account because Preston and Girke requested he paid it for them.
6.3    It was not open for the jury to be satisfied that the appellant’s misrepresentations to De Pasquale were a substantial cause of his payment of that $35,000 into the Fountaingate bank account.
6.4    It was therefore not open for the jury to be satisfied that money in the sum of $78,750 was paid by De Pasquale into the Fountaingate bank account as a result of the appellant’s misrepresentations to him.
In R v Donjerkovic[14] Doyle CJ (with whom Vanstone J and I agreed) addressed the legal test for causation in the context of the section 139 offence (in that case involving a detriment rather than a benefit) in the following terms:
There is no need to cite authority for the proposition that it was not necessary for the prosecution to prove that the deceit was the sole or only cause of the detriment, or even that it was the main cause.[15]
and adopted the following passage from the judgment of McHugh J in Royall v The Queen:[16]
Causation is a question of fact. To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused’s act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence.[17]
[14] [2012] SASCFC 2.
[15] At [22].
[16] (1991) 172 CLR 378.
[17] R v Donjerkovic [2012] SASCFC 2 at [25]. (Citations omitted).
In Royall v The Queen,[18] in the context of a murder charge, Deane and Dawson JJ identified the question of causation as whether the defendant’s conduct is “a substantial or significant cause of death”[19] and Toohey and Gaudron JJ identified the question of causation as whether the defendant’s conduct “substantially contributed to the death”.[20]
[18] (1991) 172 CLR 378.
[19] At 411.
[20] At 423.

The appellant contends that, in respect of count 2, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant’s (assumed) deception of Mr de Pasquale caused or was a substantial cause of the payment of the $35,000 component of the payment of $63,750 by Mr de Pasquale on 7 April 2014. This is because Mr de Pasquale paid the $35,000 component on behalf of Mr Preston, at his request, and the jury could not negate the reasonable possibility that the only substantial cause of the payment by Mr de Pasquale was Mr Preston’s request.
Mr de Pasquale gave evidence of the representations made by the appellant about the need for the investor group in combination to contribute $350,000 to establish the Corporation in the United States and acquire the six properties (the purchase price being fully funded by the Citibank loan). He gave evidence that, if there were fewer investors, each would have to contribute more. It is not suggested by the appellant that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant’s deception of Mr de Pasquale caused the payment of the $15,000 on 24 March 2014 or the $28,750 component of the payment of on 7 April 2014.
Mr de Pasquale did not give explicit evidence that, but for the representations by the appellant about the Corporation and the investment in six New York properties, he would not have paid the $35,000 component on behalf of Mr Preston. However, it is well established that, in civil and criminal cases alike, if it is proved that the defendant engaged in deceit calculated to cause the victim to pay money, depending on all of the circumstances, causation may be able to be proved by inference in the absence of direct evidence from the victim.[21]
[21] Smith v Chadwick (1884) 9 AC 187 at 196 per Lord Blackburn (with whom the Earl of Selbourne LC and Lord Watson agreed); R v Lambie [1982] AC 449 at 460 per Lord Roskill (with whom Lord Diplock, Lord Fraser of Killowen and Lord Keith of Kinkel agreed); National Commercial Banking Corporation of Australia Limited v Batty (1986) 160 CLR 251 at 258 per Gibbs CJ (with whom Wilson J agreed) and 273 per Brennan J; Flack v The Queen [2011] NSWCCA 167 at [40]-[45] per Johnson J (with whom McClellan CJ at CL and Hidden J agreed).
It would be absurd to suppose that the appellant’s deception of Mr de Pasquale was not a substantial cause of his paying the $35,000 component on behalf of Mr Preston. The mere fact that a concurrent cause was Mr Preston’s request, or indeed the appellant’s deception of Mr Preston, does not negate this. There can be no doubt that, but for the appellant’s deception, Mr de Pasquale would have paid nothing to Fountaingate. The evidence was capable of proving beyond reasonable doubt—and I am satisfied that it proved beyond reasonable doubt—that the appellant’s deception of Mr de Pasquale was a substantial cause of the payment of the $35,000 component of, and the entirety of, the payment of $63,750 by Mr de Pasquale.
The sixth ground of appeal is not established.
Judge’s refusal to admit Mr McPharlin’s evidence
Ground 3 of appeal is:
3.The learned trial judge erred in refusing to admit evidence from a forensic accountant, Mr Hugh McPharlin (as given on the voir dire at T1387-90), about whether the deposit of money by investors into the Fountaingate’s bank account of itself resulted in the appellant obtaining a financial advantage in the sums alleged in counts 1 to 7 and whether a financial advantage to the appellant could be valued at that time. (Trial Judge’s Ruling on 11 November 2019).
At the conclusion of the prosecution case, the appellant foreshadowed an intention to adduce evidence from Mr McPharlin whether the appellant obtained a benefit upon deposit of monies into the Fountaingate account.
Mr McPharlin, during his evidence on the voir dire, expressed the opinion that the deposit in and of itself of monies into the Fountaingate account did not give rise to any benefit to the appellant as a shareholder or signatory in and of itself (although it had the potential to do so). The expression of that opinion necessarily involved Mr McPharlin determining the meaning of “obtaining a benefit” and then applying that meaning to the facts of the case. The former was the role of the Judge and the latter was the role of the jury. The evidence by Mr McPharlin was inadmissible.
Mr McPharlin said that there were more questions to be asked about who had access to the funds and the circumstances, including the circumstances surrounding the matters that led to the funds being deposited, to determine what benefit, if any, there was to appellant of the deposits in those circumstances. This reflects the fact that the determination of benefit (or financial advantage) depended on all of the evidence before the jury and was the province of the jury and not Mr McPharlin. Mr McPharlin was not privy to that evidence but, even if he had been, it was not admissible for him to make that determination.
Mr McPharlin said that the next stage was critical, that is the movement of funds after that moment of receipt, to assessing the value of the benefit derived by the appellant through that transaction. Again, this was a matter for the jury and not Mr McPharlin to determine.
The Judge was correct in refusing to admit Mr McPharlin’s evidence at the trial.
The third ground of appeal is not established.
Judge’s directions on financial advantage
Ground 2 of appeal is:
2.The learned trial judge erred at law in respect of her directions in relation to financial advantage as follows:
2.1    By directing the jury that, “The defence says to you the prosecution cannot prove that the deposit into that account was to benefit the accused.”
2.2    By directing the jury that, “However, if you are satisfied there is evidence of him spending the money afterwards, that may well assist you in being satisfied that he did, in fact, obtain the financial advantage on the day the money was credited to the company bank account rather than the company or anybody else.”
2.3    By failing to direct the jury that satisfaction that the appellant withdrew money from the Fountaingate bank account, after investors had deposited money into that account, could not of itself prove that he obtained a financial advantage at the time the investors’ deposits were first credited to that account.
2.4    By failing to direct the jury that in order to convict the appellant on each count, it was required to be satisfied that he had himself received a financial advantage, in the nature of money in the particular sums alleged in counts 1 to 7, at the time the investors’ funds were first credited to Fountaingate’s bank account.
The Judge gave directions to the jury on financial advantage including the following:
The second element that the prosecution must prove is that the deception benefited the accused. A benefit means a financial advantage. The concept of a financial advantage is a simple one. It is expressed by the use of two commonly used words, each of clear meaning. The words should be given their plain meaning and no narrow construction should be given to them. The benefit alleged by the prosecution or the financial advantage is the deposit of money into the Fountaingate Pty Ltd bank account.
…
Now, members of the jury, each alleged count of deception is completed upon the receipt of the money into the bank account.
…
… The end date in each count is the date that the last payment was made by the individual investor into the Fountaingate bank account.
In relation to count 1, the dates are between 1 November 2013 and 22 February and 14. By 22 February 2014 Mr de Pasqulae had paid his cheque of $100,000 and the money had been credited into the Fountaingate bank account.
…
… And, similarly for counts 2-7, between 1 February 2014 and the final date when the last payment was credited into the bank account.
That means that the conduct of the accused which is the subject of each charge is the conduct that occurred between those dates set out in each charge.
You have heard evidence about events after that last date. In other words, you have heard a lot of evidence in this trial about what happened to the money in the bank account after he was first credited to that bank account, about events with Mercedes Benz, about emails to the investor group, about the attendance of Mr Collins at Mercedes Benz and the like.
The evidence you have heard about those events after the last date of payment into the account may be used by you in your assessment of Mr Collins’ conduct during that charged period of time in a way that I will identify with you as I walk you through the issues.
…
Can I turn to the second element which is on the second page of that aide. As I have said, the prosecution must prove the deception benefited the accused. A benefit means ‘a financial advantage’. The concept of financial advantage should be given its plain meaning. The benefit alleged by the prosecution is the deposit of money into the Fountaingate Pty Ltd bank account…
So members of the jury, the issues for you in this case, in relation to this element, are these: first, are you satisfied the deposit into the Fountaingate account was a benefit to the accused? As I have said, the prosecution case is that Mr Collins obtained a financial advantage on the date of that credit because the money was credited to a bank account to which he had access and control as one of the two signatories.
In order to obtain a financial advantage he does not need to have exclusive access or control of that money. The prosecution says that was the bank account which, in a group email, he directed the investors to deposit the funds.
The defence says to you, the prosecution cannot prove that the deposit into that account was to benefit the accused. The defence says the bank account was in the name of a separate legal entity, being the corporation.
In order to prove this offence, the prosecution does not have to prove that Mr Collins was, in fact, the one who spent the money after it went into the bank account. However, if you are satisfied there is evidence of him spending the money afterwards, that may well assist you in being satisfied that he did, in fact, obtain the financial advantage on the day the money was credited to the company bank account rather than the company or anybody else.
…
The directions to the jury must of course be considered as a whole and in context. When so considered, the Judge made it abundantly clear to the jury that each alleged offence was completed upon receipt of the money into the Fountaingate account; the requisite financial advantage must have been obtained by the appellant at that time; and the subsequent use of the money was only evidence relevant to determining whether the appellant had obtained a financial advantage upon receipt of the money into the Fountaingate account.
The appellant contends that the last paragraph extracted above was liable to mislead the jury into considering that the issue was whether the appellant obtained a financial advantage when he withdrew money from the Fountaingate account. On a plain reading of that paragraph, and especially taking the paragraph in context, the jury could not have obtained that understanding. I observe that there is no challenge on appeal to the admission of evidence of the subsequent withdrawals from the Fountaingate account, or to the fact that it was probative of the question whether the appellant had obtained a financial advantage upon receipt of the monies into the account.
The appellant contends in the alternative that the jury needed to be directed that it had to be satisfied that subsequent spending to the appellant’s benefit related to particular deposits and counts before it could use that to infer that a financial advantage was obtained at the time those deposits were made. I reject that contention. In respect of count 1, both the receipt and disbursement of the funds of $100,000 from Mr de Pasquale predated the receipt of the funds the subject of counts 2 to 7 and such a direction would have been otiose. In respect of counts 2 to 7, the funds from the investors’ contributions were mixed together in the account and used collectively. The absence of a direction to the effect suggested by the appellant did not lead to any miscarriage of justice.
As to particular 2.1, the appellant contends that the reference in the second to last paragraph extracted above to the defence case being that “the prosecution cannot prove that the deposit into that account was to benefit the accused” was liable to mislead the jury into considering that, if the deposit benefited the appellant in the future, that was enough to prove the offences. I reject that contention. In that paragraph, the Judge was directing attention to the object of the benefit and to the differentiation on the defence case between Fountaingate as the object and the appellant as the object. In context, it was clear that the reference to the deposit being to benefit the appellant was a reference to the effect of the deposit when it was made and not to any future matter.
As to particular 2.3, the appellant contends that it was necessary for the Judge to direct the jury that its satisfaction that he later withdrew money from the Fountaingate account could not of itself prove that he obtained a financial advantage when the deposits were first credited to that account. I reject this contention. The Judge had made this clear by the passages in the summing up extracted at [130] above and in particular the last paragraph in those passages. Anything further would have been otiose.
As to particular 2.4, the appellant contends that it was necessary for the Judge to direct the jury that, in order to convict the appellant on each count, it was required to be satisfied that he had himself received a financial advantage, in the nature of money in the particular sums alleged in counts 1 to 7, when the investors’ funds were first credited to the Fountaingate bank account. I reject that contention. It was clear to the jury from the Information and from the summing up as a whole that, for example in respect of count 1, it had to be satisfied that the appellant received a financial advantage in the sum of $100,000 by reason of the deposit of that amount into the Fountaingate account. The balance of the appellant’s contention in this respect is based on the misconception, addressed in respect of ground 1 above, that it is necessary for the prosecution to prove the monetary value of a financial advantage in a nominated money amount.
The second ground of appeal is not established.
Judge’s directions on discreditable conduct
Grounds 4 and 5 of appeal are:
4.     The learned trial Judge erred at law by failing to direct the jury:
4.1     That it must not use the evidence relating to count 1 to reason that the appellant was more likely to have committed counts 2 to 7; and
4.2     That it must not use the evidence relating to count 1 to reason that the appellant had a propensity or disposition to engage in deception and must not apply such reasoning in deciding whether the appellant was guilty of counts 2 to 7.
5.     The learned trial Judge erred at law by failing to direct the jury:
5.1    That it must not use the evidence relating to each of counts 2 to 7 when it decided if the appellant was guilty of count 1; or in the alternative, by directing the jury of the permissible uses of the evidence relating to each of counts 2 to 7 when it decided if the appellant was guilty of count 1.
5.2    That it must not use the evidence relating to each of counts 2 to 7 to reason that the appellant was more likely to have committed count 1.
5.3    That it must not use the evidence relating to each of counts 2 to 7 to reason that the appellant had a propensity or disposition to engage in deception and must not apply such reasoning in deciding whether the appellant was guilty of count 1.
The Judge gave directions on separate consideration of counts and discreditable conduct evidence, including the following:
As you know, you will be asked for your verdict in relation to each of the seven counts that are before you. You must consider each count separately. You may find the accused guilty of all seven counts. You may find him not guilty of all seven counts. Or you may find him guilty of some and not guilty of others.
If you find him guilty of one count you must not reason that, simply because of that, he must therefore be guilty of the rest. Similarly, if you find him not guilty of one count, you must not reason that, simply because of that, he must therefore be not guilty of the rest.
I say that to stress that you must give each count your separate consideration.
…
So, members of the jury that is a summary in regard to count 1. Count 1 stands differently you would appreciate from counts 2 to 7. The evidence led in relation to count 1 is largely relevant only to count 1. It may be used by you in a limited way as I will explain to you in regard to the proof of counts 2 to 7.
The prosecution says there are similarities between the deception of Mr De Pasquale in count 1 and the deception of the group, the subject of counts 2 to 7. In each case the accused targeted people who were keen to make investments overseas in property. In each case the accused created a fiction of an international bank. In each case the accused used the Fountaingate account to receive the funds. In each case the accused created email addresses to try and perpetuate the scam after he received the funds. If you are satisfied there was a similar system and if you find there was a dishonest intent proved in relation to count 1, that may be used by you as one piece of evidence to support the prosecution case of dishonest intent, that is element 3, in regard to each of counts 2 to 7. I stress, however, that you must not reason that because or if you have found the accused guilty of count 1 that he must simply therefore been guilty of counts 2 to 7. The use of a finding of a dishonest intent, if you make such a finding in relation to count 1, is very limited when you come to consider counts 2 to 7 as I have explained.
…
Subsections 34P(1) and (2) and 34R(1) of the Evidence Act 1929 (SA) provide:
34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
…
34R—Trial directions
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
…
Subsection 34P(1) defines “impermissible use” to be confined to the single impermissible use referred to in paragraph (a); notwithstanding that paragraph (c) renders all other uses, apart from the permissible use under subsection (2), impermissible. For ease of reference, I refer to uses other than that identified in paragraph (a) that are impermissible as inadmissible uses.

Subsection 34R(1) renders it mandatory for a trial judge sitting with a jury to identify and explain the purpose for which discreditable conduct evidence admitted for a use under subsection 34P(2) may be used. That use will necessarily be the “permissible use”, being the use for which the evidence is admitted as discreditable conduct evidence. That use will be case and fact dependent.
Subsection 34R(1) renders it mandatory for a trial judge sitting with a jury to identify and explain the purpose for which discreditable conduct evidence admitted for a use under subsection 34P(2) may not be used. That use will necessarily include the “impermissible use” under section 34P(1)(a) and (b), namely a use to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct. Section 34P(1)(c) proscribes any other use apart from a permissible use under subsection (2). In some cases, it will be sufficient to direct the jury that the evidence can only be used for the permissible use (which must be identified and explained) and cannot be used for the impermissible use (which must be identified and explained) or for any other use. In other cases, where there is a substantial risk that the jury will use the evidence for another inadmissible use or uses, it will be necessary to identify and explain the other specific inadmissible use or uses (in addition to the impermissible use in section 34P(1)(a)). Such an inadmissible use may include a use that relies on a particular propensity or disposition of the defendant such as is referred to in section 34P(2)(b) when the evidence is not admitted under that provision. The directions required will be case and fact dependent.
Sections 34P and 34R apply, not only to discreditable conduct evidence extraneous to the charges, but also when evidence of conduct the subject of one count is admitted as relevant to another conduct (often called “cross-admissible evidence”). In that case, the evidence directly relevant to the first count can obviously be used in relation to that count and such primary use is not addressed or governed by sections 34P and 34R. However, such evidence will also have a secondary use in relation to the second count and in practice it will be necessary for directions under section 34R to distinguish the primary use from the secondary use.
In the second to last paragraph of the directions extracted at [139] above, the Judge made it clear to the jury that the primary use of the evidence of the conduct of the appellant the subject of count 1 was to decide whether the appellant had been proved guilty of count 1.
In that paragraph and the last paragraph extracted above, the Judge identified the permissible use of evidence of the appellant’s conduct the subject of count 1 for the purpose of considering counts 2 to 7. That identified permissible use was confined to the issue of dishonesty. That identified permissible use was that, if the jury found a dishonest intent proved in relation to count 1, that may be used by it as one piece of evidence on the issue of dishonest intent in relation to each of counts 2 to 7. The Judge did not refer to using the evidence of the appellant’s conduct the subject of counts 2 to 7 for the purpose of determining whether the appellant was guilty of count 1.
Ground 4
The appellant makes no complaint on appeal about the Judge’s directions on the permissible use of the appellant’s conduct the subject of count 1 when considering counts 2 to 7. However, he contends that the Judge failed to direct the jury adequately on inadmissible uses.
The impermissible use defined by section 34P(1) is that the evidence of the appellant’s conduct the subject of count 1 could not be used to suggest that the appellant was more likely to have committed the offences the subject of counts 2 to 7 because he engaged in that conduct. The Judge did not give a direction to the jury in those terms. The Judge directed the jury not to engage in the more primitive reasoning that, if the appellant committed the offence the subject of count 1, he must simply therefore be guilty of counts 2 to 7. In the circumstances, this was not adequate to preclude the more sophisticated reasoning that is the defined impermissible use.
It would have been preferable if the Judge had also directed the jury that it should not engage in “propensity reasoning”, namely that, if it found count 1 proved, the appellant had a propensity to engage in deception, and this was relevant to whether he engaged in deception the subject of counts 2 to 7. It is not necessary to decide whether such a direction would have been required if the Judge had given the impermissible use direction referred to in the previous paragraph.
Subject to consideration of the proviso, the fourth ground of appeal is established.
Ground 5
The appellant complains that the Judge gave no direction on the permissible use of the appellant’s conduct the subject of counts 2 to 7 when considering count 1.
The Director concedes this, but contends that the overall effect of the Judge’s direction was that there was no permissible use of the appellant’s conduct the subject of counts 2 to 7 when considering count 1, and the prosecution never invited the jury to reason in such a way.
The mere fact that evidence was admitted at trial of the appellant’s conduct the subject of counts 2 to 7 does not entail that it was admitted for a permissible use under section 34P in respect of count 1. It was obviously admissible in its own right as relevant to counts 2 to 7.
Before the empanelment of the jury, the appellant applied for severance of count 1 from counts 2 to 7. The Judge declined the application and for that purpose ruled that evidence in respect of count 1 would be admissible for the purposes of consideration of counts 2 to 7. The Judge did not rule that evidence in respect of counts 2 to 7 would be admissible for the purposes of consideration of count 1. However, this ruling was unknown to the jury and, when evidence of the appellant’s conduct the subject of count 1 was admitted, no reference was made to it being or not being admitted in respect of counts 2 to 7 or vice versa.
When the trial is before a jury, the question is whether the jury would or may have considered that the evidence of the appellant’s conduct the subject of counts 2 to 7 could be used by it in relation to count 1.
On the one hand, the Judge gave a standard separate consideration warning, and later referred to use of evidence of the appellant’s conduct the subject of count 1 in a limited way explained to the jury in regard to the proof of counts 2 to 7. The jury is likely to have inferred from this that this was the only exception to the separate consideration direction.
On the other hand, the natural human instinct to engage in base propensity reasoning is the rationale for the requirement in section 34R that the jury be directed as to inadmissible uses of discreditable conduct evidence. It is not possible to conclude to the requisite level of satisfaction that the jury understood that it could not use the evidence of the appellant’s conduct the subject of counts 2 to 7 in any way when considering count 1. Accordingly, it was incumbent on the Judge either to direct the jury that there was no permissible use of evidence of the appellant’s conduct the subject of counts 2 to 7 when considering count 1 or, if a permissible use was identified, identify and explain that permissible use and inadmissible uses. The Judge did not do this.
Subject to consideration of the proviso, the fifth ground of appeal is established.
The proviso
Subsection 158(2) of the Criminal Procedure Act 1921 (SA) provides:
The Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In OKS v Western Australia[22] Bell, Keane, Nettle and Gordon JJ said:
It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied “unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict”.[23]
[22] [2019] HCA 10, (2019) 265 CLR 268.
[23] At [31]. (Footnotes omitted).
The errors the subject of grounds 4 and 5 do not comprise a fundamental defect and the appellant does not suggest otherwise.
The appellant did not give evidence. The evidence of the investors was not seriously challenged in cross-examination. It was in large part corroborated by contemporaneous documents.
The elements of the offence under section 139(a) of the Act, as applied to the particular charges in this case, are:
1The defendant makes a representation to another.
2The representation is false (or misleading).
3The defendant obtains a financial advantage.
4The making of the misrepresentation causes the obtaining of the financial advantage.
5The obtaining of the benefit is dishonest.
I have reviewed the evidence adduced at trial in relation to count 1 without regard to the evidence in respect of counts 2 to 7. I am persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant’s guilt of count 1. The evidence adduced at trial is summarised in the Background section above and speaks for itself. Each element of the offence the subject of count 1 was proved beyond reasonable doubt.
I have reviewed the evidence adduced at trial in relation to each of counts 2 to 7 without regard to the evidence in respect of count 1. I am persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant’s guilt of each of counts 2 to 7. The evidence adduced at trial is summarised in the Background section above and speaks for itself. Each element of the offence the subject of each count was proved beyond reasonable doubt.
This is a case in which the proviso can and should be applied. There was no miscarriage of justice.
Conclusion
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Blue J.

Ms Lim	Mr Wu	Mr de Pasquale	Ms Djunaedi	Mr Charlton	Mr Preston
March 14[3]	$15,000	$15,000	$15,000	$15,000	$15,000
4 April 14	$20,000
7 April 14	$28,750	$63,750	$28,750[4]
9 April 14	$15,000[5]
11 April 14	$35,000
22 April 14	$6,250	$6,250
24 April 14	$8,000
Total	$50,000	$50,000	$78,750	$50,000	$50,000	$8,000