Condren v Carr - [2005] WASCA 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CONDREN -v- CARR [2005] WASCA 15

CORAM: MILLER J

HEARD: 13 JANUARY 2005

DELIVERED : 13 JANUARY 2005

PUBLISHED : 7 FEBRUARY 2005

FILE NO/S: SJA 1100 of 2004

MATTER :Justices Act 1902 (WA)

BETWEEN: BRENDAN ANDREW CONDREN
Appellant
AND
CATHERINE ANNE CARR
Respondent

ON APPEAL FROM:
Jurisdiction              :  COURT OF PETTY SESSIONS
Coram  :MR R BURTON SM
File No  :AL 560 of 2004

Catchwords:

Justices - Evidence - Whether misapplication of a burden of proof - Turns on own facts

Criminal law - Fraud - Obtaining a benefit by deceit and with intent to defraud - Criminal Code, s 409(1)(c) - Whether complaint properly formulates offence

Justices - Complaint - Allegation that with intent to defraud by deceit the defendant obtained a benefit - Benefit alleged to be a machine the property of his employer - Property handed to defendant - Cost debited to employer - Whether complaint properly formulated and made out

Legislation:

Criminal Code 1913 (WA), s 409(1)

Result:

Appeal allowed
Conviction quashed

Category: B

Representation:

Counsel:

Appellant: Mr R G W Bayly
Respondent: Mr P Dixon

Solicitors:

Appellant: Bayly & O'Brien
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Harling v Hall (1997) 94 A Crim R 437
Willey v Synan (1937) 57 CLR 200

Case(s) also cited:

Latham v The Queen [2000] WASCA 57
Liberato v The Queen (1985) 159 CLR 507
Palmer v The Queen (1998) 193 CLR 1
R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48
R v O'Brien [1981] WAR 305
Trainer v The King (1906) 4 CLR 126

MILLER J: The appellant was charged in the Court of Petty Sessions at Albany that between 26 August and 19 September 2003 at Albany he, with intent to defraud by deceit, obtained a benefit, namely a cut‑off machine, the property of K & J Keays trading as Grace Removals, contrary to s 409(1)(c) of the Criminal Code 1913 (WA). He pleaded not guilty and was tried before Mr R B Burton SM on 2 September 2004. He was convicted and fined.

The complaint

Section 409 of the Criminal Code creates the offence of fraud. That offence may be committed in a number of circumstances. Section 409(1)(a) ‑ (d) is in the following terms:
"(1)Any person who, with intent to defraud, by deceit or any fraudulent means -
(a)obtains property from any person;
(b)induces any person to deliver property to another person;
(c)gains a benefit, pecuniary or otherwise, for any person;
(d)causes a detriment, pecuniary or otherwise, to any person;"
It will be seen that in the present case the appellant was charged with obtaining a benefit under s 409(1)(c), whereas the offence is actually gaining a benefit. Nothing turns particularly upon that distinction, except that it would appear that the person responsible for framing the complaint may have confused s 409(1)(a) with s 409(1)(c). Section 409(1)(a) creates the offence of with intent to defraud by deceit, obtaining property from a person, whereas s 409(1)(c) creates the offence of with intent to defraud by deceit, gaining a benefit.
There appears to have been some confusion in the formulation of the complaint, because in its original form it alleged the appellant had, with intent to defraud by deceit, obtained a benefit, namely a cut‑off machine, the property of T & C Supplies Pty Ltd, trading as T & C Supplies. T & C Supplies was the business which made available to the appellant the cut‑off machine.
The prosecution case against the appellant was that on 26 August 2003 he attended the premises of T & C Supplies in Chester Pass Road, Albany and deceitfully purchased for himself a metal cut‑off machine, debiting the cost to his employer, Grace Brothers.
In my view, the terms of the complaint were inappropriate to reflect the alleged offence. The appellant did not, with intent to defraud by deceit, obtain a cut‑off machine the property of Grace Removals. If he had acted deceitfully, what he did was obtain, with intent to defraud by deceit, a benefit, namely charging the cost of a cut‑off machine to his employer, rather than paying for it himself.
In my opinion, to reflect the prosecution case, the complaint should have been worded as follows: "Between 26 August and 19 September 2003 Brendan Andrew Condren, with intent to defraud by deceit, obtained a benefit by debiting to the account of Grace Removals without the authority of Grace Removals, the cost of a cut‑off machine supplied to him by T & C Supplies Pty Ltd."
In my view, the cut‑off machine supplied to the appellant was never the property of Grace Removals. It was at all material times his property because he had acquired it for himself and directly taken possession of it. If he had committed any offence, it would be (if proven) that he had, without lawful authority, instructed the seller to debit the cost of the machine to his employer, Grace Brothers.

The evidence

The evidence against the appellant was tenuous. The first witness called was Neil Harold Shackleton, who worked for T & C Supplies and who, on 26 August 2003, was on duty when the appellant entered the store. His evidence was:
"I'm very vague on it because it's going back such a long time but I do remember Brendan coming in, asking me about a 14‑inch metal cut‑off machine. As for the purpose of the machine I can't honestly remember whether it was for himself or whether it was for Grace Bros Removals that he was doing some work for around there.
Mm?---I went through the dos and don't of the machine - the safety application of the machine - and the correct usage of it.
Right; and how much was the machine?‑‑‑From memory about $175.
All right, and how was the purchase made?‑‑‑The purchase was booked out on the Grace Bros account due to Brendan then working at Grace Bros. He was quite welcome to come in and book things up on the Grace Bros account. There had never been a question asked about it previously."
It will be seen immediately from this testimony that Shackleton was unable to say whether the appellant had requested the machine for himself or for his employer.
There is no doubt that the appellant took the item for himself. Shackleton said:
"Right - - all right; so in relation to the delivery was it delivered to Grace Bros Removals?‑‑‑No, Brendan came personally into the shop and purchased it from the shop and took it out himself."
He therefore took possession of it and prima facie the property in the item passed to him.
Jason Colin Wilson, assistant manager at T & C Supplies, testified that Grace Removals had an account with T & C Supplies. As a rule, small items like screwdrivers and castor wheels were purchased by employers and booked up to the Grace Removals account. When cross‑examined, he agreed that he had no knowledge as to whether or not purchases made by employees of Grace Removals were for work purposes or for themselves under some private arrangement with their employer.
Kenneth Malcolm Keays conducted the business of KM & J Keays Removals Pty Ltd, trading as Grace Removals Albany. He testified that the cost of a cut‑off machine had been debited to his account at T & C Supplies and that he had paid for it. The reason why he had paid for it was to avoid "wrecking his credit rating". He had never seen the item and certainly did not want the item.
It transpired that the appellant had been employed by Keays for some years. In circumstances where he first obtained approval from Keays, he was entitled to "book up something on the Grace Brothers account". Keays testified that the appellant had not obtained authority to debit the cost of a cut‑off machine to the Grace Brothers account. He was asked specifically whether on 26 August the appellant had rung him about booking up something on the account and he said that he had not, because if he had rung he would have known that he was doing it. He said he gave no permission for the appellant to use the account to buy the cut‑off machine.
When cross‑examined, Keays made it clear that the question of the cut‑off machine had surfaced when the appellant gave notice to leave Keays' employment. Keays demanded return of all items that were in the possession of the appellant and "payment for the saw".
Keays was questioned as to whether he had received a telephone call from the appellant on 26 August 2003 at about 2.30 pm. He replied that he did not remember. It was put to him that the appellant had called him on that day at that time and said that he would like to pick up a cut‑off machine at a cost of $179 and was going down to T & C Supplies. He asked whether it would be in order to debit it to the Grace Removals account. Keays denied that he had.
Keays conceded that on 26 August there was no question of the appellant having given any notice that he was intending to leave the employment of Keays.
The appellant gave evidence. He said that he had worked for Grace Removals for at least seven years before September 2003 and on 26 August 2003, whilst having lunch at the depot, he had seen a catalogue in which a cut‑off machine was advertised. He decided to have a look at one and if he liked it, to purchase it. He said that he rang his employer, Keays, at around 2.30 pm. His evidence was:
"I rung the boss - it was sort of around 2.30‑ish - said that I had seen it and could I put it on the account. He said, 'Yes' so on me way down to the pre-pack I called in to T and Cs, seen Neil and picked it up and then continued on to my job.
What can you recall of the actual conversation with your boss? Can you recall - - can you just tell the court what you recall of it?‑‑‑Basically I just - - I had rung him and by - - you know, from my mobile to his and said, 'Boss', you know, 'Can I - - I want to get a cut‑off saw on T and C's account. Do you mind if I put it on the account?' He basically said, 'Yeah, that's not a problem' and - -
All right. There's a - -? ‑ ‑ ‑‑‑left it at that."
A telephone account was tendered in evidence which showed that at 2.27 pm on 26 August the appellant had telephoned Keays' mobile telephone number. The appellant testified that this call corresponded to the call that he made enquiring about debiting the cost of the cut‑off machine to the Grace Removals account.
The appellant said that when he went to T & C Supplies he made it clear that the machine was being purchased for himself. His evidence was:
"And when you got to T and C who - - who was the salesman you dealt with? ‑‑‑I went to Neil because I sort of used to - - I used to use Neil because sort of - - yeah. I basically asked him about the saw. He took me and showed him basically asked him about the saw. He took me and showed him …(on tape)… I said is it - - you know, 'Are they pretty, you know, hardy sort of saw because I want to be cutting up reasonable thickness steel for building race cars?' he said, 'Yes'. He said, 'They're a very good saw. Actually some of the tradesman are using them' so I thought - - well, I was quite happy with that and we proceeded with it."
The appellant gave evidence that he asked for the cost of the machine to be debited to the Grace Removals account and at the time he did so there was no intention on his part to leave the employment of Grace Removals. In fact, it was not until 5 September that he was approached by Allied Pickfords to work for them and he had to make a decision within that day. Later, Keays refused to pay him for two day's work and the appellant refused to reimburse him for the cost of the cut‑off machine, claiming it as a setoff against wages due to him.

The Magistrate's reasons

Against this background of evidence the learned Magistrate made the following observation at the close of the defence case:
"HIS WORSHIP: I'll just - - I'll just instruct myself as to the burden of proof. What I've got here, the prosecution has got to prove the matter beyond reasonable doubt. The defendant doesn't have to do anything but hopes that by cross‑examining and giving evidence has raised a doubt about a matter which hasn't been negatived beyond reasonable doubt at the end of the day. It's just a jury decision. I've got to give some reasons. The essential issue here I suppose is two things; whether there's a phone call to the Keays as to him purchasing this item and the other thing is whether he has an honest claim of right, I suppose, in relation to him being owed other money or other sums due to him which allows him to keep that in exchange for it."
I am unable to understand what the learned Magistrate meant by a defence of honest claim of right. Either the appellant had acted fraudulently or he had not.
After these preliminary observations, the learned Magistrate heard submissions from the prosecutor and counsel for the appellant. He then proceeded to determine the matter by giving more detailed reasons. After reviewing the evidence in a somewhat disjointed manner, the learned Magistrate said:
"The defendant rang Mr Keays. I've got to deal with that. The call was 34 seconds. The defendant says in relation to that that time is tied in with an entry that's produced by the - - by Mr Keays' records. Is it fraud? I would have thought if you're told you can't put something on an account unless you get consent - - I would have thought that probably was fraud, I would have thought.
There's no arrangement to make repayments and as the sergeant has put to me all it needs is $23 and the whole drama will be settled. I've got to decided if it has been proved beyond reasonable doubt that that phone call - the 34‑second one - was to inform the defendant - - inform Mr Keays that this is what he was going to do. There's two phone calls there. The defendant doesn't remember the other one. Then the question is, 'What would a properly instructed jury do with that against those background facts? I find the defendant guilty."
After the finding of guilt the learned Magistrate added, when dealing with costs:
"I believe that he - - the 34‑second phone call was about something else. That's making the finding quite clear."

Grounds of appeal

On 15 October 2004 the appellant was granted leave to appeal his conviction on the following grounds:
"(a)The learned Magistrate erred and misdirected himself in framing the question 'I have got to decide if it has been proved beyond reasonable doubt that the phone call …. was to inform … Mr Keays that this is what he (the Defendant) was going to do' which reversed the onus of proof by placing it on the Applicant (Defendant).
(b)There was no evidence upon which it could be found that the cut off machine was ever the property of Grace Removals Ltd with the result that the complaint as amended was not proved.
(c)The evidence was insufficient for the learned Magistrate to be properly directed as to the onus and standard of proof to find the charge against the Applicant (Defendant) proven, the conviction being in the circumstances against the weight of the evidence."

Ground (a)

Although the learned Magistrate prefaced his reasons with a correct statement as to where the onus of proof lay and what the standard of proof was, when it came to his concluding remarks he saw the question of the telephone call between the appellant and Keays as a critical issue. It certainly was a critical issue in the trial. Keays had testified that he had no recollection of a telephone call at 2.30 pm on 26 August 2003 and denied that the appellant had ever obtained his approval to debit the cost of the cut‑off machine to the Grace Removals account. However, there was evidence that such a call was made on that day at 2.27 pm and shortly thereafter, the appellant had attended at the premises of T & C Supplies and obtained the cut‑off machine. The appellant had testified that in the telephone call he had sought and obtained authority to debit the cost of that machine to his employer's account.
The learned Magistrate's statement that he had to decide whether it had been proven beyond reasonable doubt that the telephone call was to inform Keays of what the appellant intended to do was a clear misdirection. Although the respondent contends that it was a slip and must have been so because of the earlier statement about where the onus of proof lay, I am by no means satisfied that this was so. On the face of it, it appears to be a serious error. The onus of proof has been reversed. It was never for the appellant to prove beyond reasonable doubt that the telephone call to Keays was made and made for the purpose of obtaining his authority to debit the account.
Even the learned Magistrate's follow‑up comment that he believed the phone call was "about something else" does not help. It was not a question of what the learned Magistrate believed. It was a question of whether it was proven beyond reasonable doubt that there had been no authorisation given for the debiting of the account.
The proper application of the onus of proof in this case was set out by Anderson J in Harling v Hall (1997) 94 A Crim R 437 at 443 as follows:
"A finding of guilt is not to be reached simply by rejecting the case put forward by the defendant. There cannot be a guilty verdict unless the court of trial accepts, that is actually and positively believes to the required standard, the evidence presented by the prosecution on matters critical to proof of guilt. When a defendant gives exculpatory evidence, and it is trite to say that he or she need not do so, the question is not so much whether it is to be preferred to the prosecution evidence but whether in the light of it the prosecution has proved its case. Even if the Court does not positively believe the defendant's evidence and in that sense does not prefer it, the question remains whether on the whole of the evidence the guilt of the defendant has been proved beyond a reasonable doubt. This is not a mere exercise in semantics. There is always a real possibility that whilst the evidence of the prosecution witnesses may be generally preferred to that of the defence witnesses, the evidence as a whole still leaves a reasonable doubt as to the guilt of the defendant. For example, a defendant may give an account which sounds implausible and unlikely, yet the Court may be unable to rule it out. The defendant may not go into evidence at all, yet the prosecution evidence may fail to satisfy the Court to the required degree."
In my view, the learned Magistrate's application of the onus of proof as revealed by his reasons was fatally wrong and for that reason alone, the conviction of the appellant should be quashed.

Ground (b)

This ground contends that there was no evidence upon which it could be found that the cut‑off machine was ever the property of Grace Removals.
I have already made reference to the problem with the wording of the complaint. I agree that the cut‑off machine was not ever the property of Grace Removals. It was the property of T & C Supplies Pty Ltd until possession of it and property in it were given to the appellant when he attended at the store of T & C Supplies on 26 August 2003. Whilst he requested that the cost of the machine be debited to the account of Grace Removals, there is no suggestion that it was bought for Grace Removals. The employee of T & C Supplies who sold the machine was uncertain as to the basis upon which the appellant had obtained the machine. Keays paid for the machine to protect his credit rating. He did not want it and never requested it. All that he wanted was to be reimbursed for the cost of it.
In some circumstances an employee may take possession of property in circumstances where he has obtained it for his employer and is disentitled to claim any title for himself: Willey v Synan (1937) 57 CLR 200 per Dixon J at 219. This is not such a case. It is not suggested that the cut‑off machine was being obtained for Grace Removals and that the appellant's possession of it was, in truth, possession for his employer. That would have been the case if Keays had sent the appellant to T & C Supplies to purchase the cut‑off machine for Grace Removals, but the appellant had acquired possession of it and taken it home for his own use.

In my view, the complaint was fundamentally flawed. It did not formulate the correct case put by the prosecution against the appellant. As I have pointed out, the complaint should have been worded in an entirely different manner to reflect the way in which the case was put against the appellant. I therefore uphold this ground of appeal as there was no evidence before the learned Magistrate, nor could there have been, that the cut‑off machine was ever the property of Grace Removals.

Ground (c)

This ground contends that the evidence was insufficient for the learned Magistrate to find the charge proven against the appellant.
In my view there is substance in this ground. The evidence of Keays was that he had no recollection of receiving a telephone call on 26 August 2003 at 2.30 pm, but there was clear independent evidence that he did. It is true that he testified that he had not given the appellant any authority to debit the cost of the cut‑off machine to the Grace Removals account.
The appellant, however, testified clearly that he had called his employer at around 2.30 pm on 26 August and had sought and obtained approval to debit the Grace Removals account. There was a practice whereby the appellant was entitled to do this.
The employee at T & C Supplies who supplied the machine was unable to say whether the appellant had stated that he was obtaining the machine for himself or for his employer. The machine was not typical of the items which would have been acquired for the employer. The appellant made it clear that he had told the employee that he would be using the cut‑off machine to cut steel for building race cars.
The appellant later left the employ of Grace Removals and only then did an issue arise as to reimbursement of Grace Removals for the cost of the machine.
In these circumstances, I find it difficult to see how the learned Magistrate could have been satisfied beyond reasonable doubt that the appellant was guilty of the offence charged. In any event, this is something of an academic question, as the offence was not properly charged. To the extent that the learned Magistrate was satisfied beyond reasonable doubt that the appellant had acted fraudulently, he was, in my view, in error. Although I have not seen the witnesses and am unable to assess the question of credibility, the learned Magistrate did not profess to determine the case on an issue of credibility. The conviction was a miscarriage of justice.
I would therefore grant leave to appeal on all grounds and quash the conviction of the appellant.