Collins v The Queen

Case [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…

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Collins v The Queen [2020] SASCFC 96
Case
[2020] SASCFC 96
Decision Date

CaseChat Overview and Summary

The appellant, Collins, appealed his convictions for obtaining property by deception. The dispute centred on whether the appellant had obtained a financial advantage when investors deposited funds into the bank account of Fountaingate International Corporation Pty Ltd, which the appellant controlled. The appeal was heard by Peek, Blue, and Stanley JJ of the court.

The legal issues before the court included whether the trial judge erred in ruling that a case to answer existed on each count, given the appellant's argument that deposits into the company account did not automatically confer a financial advantage on him personally. Further issues concerned the reasonableness of the verdict on one count, the admissibility of expert evidence from a forensic accountant regarding financial advantage, and the adequacy of the trial judge's directions to the jury on the concept of financial advantage and the permissible and impermissible uses of evidence relating to different counts.

The court held that the trial judge correctly refused to admit the forensic accountant's evidence, as determining whether a financial advantage was obtained was a matter for the jury, not an expert witness. The court also found that the trial judge's directions on financial advantage, while potentially capable of improvement, did not constitute a misdirection that led to a miscarriage of justice, particularly in light of the evidence of the appellant subsequently spending the funds. The court concluded that the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) could be applied, meaning that despite any potential errors, there had been no substantial miscarriage of justice.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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); and6the 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 InvestorsI 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.