Director of Public Prosecutions v Logan-Pye and 2 Ors

[2007] NSWSC 1492

CITATION:	DPP v Logan-Pye and 2 Ors [2007] NSWSC 1492 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5 November 2007
JUDGMENT DATE :	21 December 2007
JUDGMENT OF:	Smart AJ at 1
DECISION:	See paras 85-87
CATCHWORDS:	Obtain valuable thing by deception (S 178BA of Crimes Act). Make false instrument and use false instrument (SS 299(2) & 300 of Crimes Act. Correct construction and application of sections.Dismissal of some charges by Local Court due to errors of construction. Some dismissals upheld on other grounds. Need for prosecution case to be correctly framed
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Crimes (Appeals and Review Act 2001 Crimes Act 1900 (NSW) Crimes Act 1958 (Vic) Criminal Appeal Act 1912 English Theft Act Forgery and Counterfeiting Act 1981 Justices Act Supreme Court Rules 1970
CASES CITED:	Brott v The Queen (1992) 173 CLR 426 DPP v Leonard [2000] 53 NSWLR 227 R v Bozatsis & Anor (1997) 97 A Crim R 296 R v Ceylan (2002) 4 VR 208 R v Charles 1977 AC 177 R v Kovacs 1974 1 WLR 370 R v More R v O'Hare 155 A Crim R 82
PARTIES:	DPP v Adam Jon Logan-Pye, DPP v Steven John Plunkett, and DPP v Roger Bruce Tweed
FILE NUMBER(S):	SC 12529/07, 12530/07, 12532/07
COUNSEL:	(DPP) C A Webster (R) P D Rosser QC
SOLICITORS:	(DPP) S Kavanagh Logan-Pye Harris Wheeler Plunkett Nicolas Moir & Associates PtLtd Tweed Thomas Mitchell
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	Not supplied
LOWER COURT JUDICIAL OFFICER :	Magistrate Wakely

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Friday, 21 December 2007

12529/07:
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ADAM JON LOGAN-PYE

12530/07:
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROGER BRUCE TWEED

12532/07:
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v STEVEN JOHN PLUNKETT

JUDGMENT

1. In each proceeding the Director appeals under Pt 5 of the Crimes (Appeal and Review) Act 2001 against orders made by the Local Court on 15 February 2007 dismissing charges laid against each of the defendants under s 178BA(1) and s 300(2) of the Crimes Act 1900 (NSW). The Director seeks to set aside those orders, obtain declarations as to the correct construction and application of s 178BA(1) and s 299(2)(d) of that Act and orders for the proceedings to be remitted to the Local Court at Newcastle to be heard and determined according to law.

2. The Director recognised that he may not be entitled to appeal as of right so he sought further and in the alternative an order pursuant to s 57(1)(c) of the Crimes (Appeals and Review) Act 2001 granting him leave to appeal against the ruling of the Local Court of 14 February 2007 as to the charges of dishonestly obtain a valuable thing by deception, s 178BA.

3. The Director further and in the alternative sought an order pursuant to Pt 51B r 6(2)(a) of the Supreme Court Rules 1970 extending the time for instituting an application for leave to appeal against the order mentioned in the previous paragraphs.

4. Mr Rosser QC for the defendants advised the Court that they had no difficulty with the grant of the leave sought in the two preceding paragraphs, as a matter of principle. The defendants' position was that the Director should put all his arguments and that the issue of leave should abide the Court's decision. The defendants contended that the charges under s 178BA(1) were misconceived and, as framed, could not succeed. I agreed to the course suggested by the defendants.

5. Each of the defendants filed a notice of contention, submitting that the decisions of the Local Court should be affirmed on grounds other than those relied on by it.

6. Adam Jon Logan-Pye (AL-P). Steven John Plunkett (SJP) were at the material time police officers employed at the Lake Macquarie PCYC (Police Citizens Youth Club). Roger Bruce Tweed (RBT) was an employee of Rebel Sport Limited or Rebel Direct at Charlestown. The Club had an account with Rebel. From time to time the Club purchased goods from Rebel.

7. The charges against AL-P, the subject of the summons of the DPP are that:

1. Between 15 April 2003 and 27 August 2005 at Windale in the State of New South Wales he did dishonestly obtain a valuable thing namely a cheque for $609.46 of which the sum of $247.04 was for goods not received by or on behalf of the PCYC, by deception namely by falsely representing that heart rate monitors had been purchased for the Lake Macquarie PCYC when to his knowledge the said monitors had not been purchased.

(This charge was preferred under s 178BA(1) of the Crimes Act)

(Charge or Sequence 2 is not the subject of these proceedings and relates to a different set of facts)


3. On 28 April 2005 at Windale ... used a false instrument namely a Rebel invoice dated 28/4/05 (reference 33811) knowing it to be a false instrument with intent to induce staff at the Lake Macquarie PCYC to accept the said instrument as genuine and thereby to do or not do an act to the prejudice of the Lake Macquarie PCYC.

(This charge was preferred under s 300 of the Crimes Act)

8. SJP originally faced five charges but charges (or sequences) 2, 3 and 5 are not the subject of these proceedings, Charge (or sequence) 1 against Mr Plunkett is in the same terms as charge 1 against Mr Logan-Pye (dishonestly obtain a valuable thing – s 178BA(1) of the Crimes Act)

9. Charge (or sequence) 4 was preferred under s 300 of the Crimes Act and alleged that SJP:

(4) Between 25 August 2005 and 16 September 2005 at Windale … used a false instrument namely an updated Rebel invoice dated 28 April 2005, reference 33811, knowing it to be a false instrument with intent to induce staff at the Lake Macquarie PCYC to accept the said instrument as genuine and thereby to do or not do an act to the prejudice of the Lake Macquarie PCYC.

10. RBT faced five charges (or sequences) but charge (or sequence) 4 is not the subject of these proceedings. Charge (or sequence) 1 against Mr Tweed is in the same terms as charge 1 against each of Mr Logan-Pye and Mr Plunkett, the Crown relying upon there being a joint enterprise and a common purpose. Charges (or sequences) 2, 3 and 5 were preferred under s 300 of the Crimes Act and alleged that Mr Tweed:

(2) On 28 April 2005 at Charlestown … did make a false instrument namely one Rebel Sports invoice dated 28 April 2005, reference 33811, with the intention that another person would accept the instrument as genuine and because of that acceptance to do or not do some act to the prejudice of the victim or another person.


(3) Between 29 August 2005 and 16 September 2005 at Windale … did make a false instrument namely an amended invoice dated 28 April 2005, reference 33811, with the intention that another person would accept the instrument as genuine and because of that acceptance to do or not do some act to the prejudice of the victim or other person.


(5) Between 25 August 2005 and 16 September 2005 at Windale … used a false instrument namely an updated Rebel invoice dated 28 April 2005, reference 33811, knowing it to be a false instrument with intent to induce staff at the Lake Macquarie PCYC to accept the said instrument as genuine and thereby to do or not do an act to the prejudice of the Lake Macquarie PCYC.

11. There was a lengthy hearing of all charges in the Local Court. They were not committal proceedings. As to the charge against each of AL-P, SJP and RBT of obtaining a valuable thing by deception the prosecution stated that the charge was preferred "on the basis of a joint criminal enterprise between the three accused and the suggestion is that the valuable thing they obtained was a cheque for $609.46 … of which $247.04 was for goods not received by or on behalf of the PCYC … And it's the allegation … that … the goods received in relation to those were …some Nike shoes … received by [AL-P] and [SJP]. And the deception … alleged against all three accused is the false representation that heart monitors had been purchased for the Lake Macquarie PCYC when in fact those heart monitors had not been purchased or received." (T10-11 of 13/11/06). The prosecutor continued:

"That charge sequence one for all three accused relates to an initial invoice which the prosecution says was supplied by Mr Tweed and there's a back up charge in relation to that count for Mr AL-P which forms sequence three for Mr AL-P.

(T11 of 13/11/06)

The prosecution further stated in opening:

"It's also alleged that a further receipt was supplied by [RBT] to the PCYC and on that basis there's a charge in relation to [SJP] of using a false instrument which is sequence four. And there's also a charge in relation to [RBT]sequences three and four of both making and using that false instrument.
(T11 of 13/11/06)
[The reference to sequence four and using a false instrument is probably a slip as it relates to a different matter. However, sequence five relates to using a false instrument and it may well be that the prosecution meant sequence five and not sequence four. That would make sense]

and

"And there's a further charge in relation to [RBT] sequence two in relation to that incident which is a back up to sequence one, the obtaining valuable thing by deception charge and that backup charge is make a false instrument charge for the initial invoice.
… essentially in relation to that incident your Honour's being asked to look at an initial receipt provided and subsequent receipt provided in relation to those heart monitors which later become said to be pedometers."

12. After some discussion (T18-19 of 13/11/06) it was clarified that the valuable thing alleged to have been obtained was the cheque.

13. The prosecution explained that the cheque butt and the accompanying cheque were signed by Ms Karen Kennedy and AL-P and that by implication that cheque was obtained by Mr Logan-Pye. During the hearing on 14 November 2006 the prosecutor (T8) confirmed that the valuable thing being relied upon was the cheque. At T11 on that day the Crown stated that there was a joint criminal enterprise for Mr Tweed to provide shoes [for AL-P and SJP] and for those shoes to be invoiced as heart monitors and for that to be covered up in the PCYC and subsequently for a cheque to be drawn and signed for the provision of items that were never provided to the PCYC and certainly were never heart monitors.

14. At the start of the third day of hearing (14/0207) the legal representatives of AL-P and RBT complained that previously they had been told by the prosecution that the cheque was obtained because it was signed, that the prosecution case was that the signing was equivalent to obtaining and that pursuant to a common purpose the signing by one equalled not only the obtaining by that person but obtaining by the co-accused. However, the complaint continued that the prosecution had told them this was not so and they were relying on Rebel obtaining the cheque.

15. It was submitted to the Local Court that the charge as laid (S178BA(1)) charged each person as a principal dishonestly obtaining a valuable thing, that charge was understandable only as an allegation that the person against whom the allegation was made himself obtained the cheque and that it was not open to the prosecution to succeed. It was pointed out that it was open to the prosecution to charge each of these defendants with obtaining the cheque for another person, namely Rebel Sports (Rebel Sport Limited) but that was not done. It was further submitted to the Local Court that the prosecution's change in position amounted to a new charge not an amendment to the charge.

16. The prosecution's representative responded at T23 of 14/1/07:

"… it was my position on the record last time, and still is, that the Crown position is that [AL-P] obtained a cheque by signing it However, it seemed to be missed by all parties, including myself, on the last occasion that there is in fact evidence … that shows an obtaining of that cheque by Rebel. The Crown position is that obtaining as a back-up position also would satisfy the section and allow your Honour to convict each of the accused under that section."

17. The representative submitted that the Crown was entitled to rely on either event. The charge does not specify that the cheque was obtained for AL-P or anyone else. The representative submitted that the prosecution did not need to elect. The Crown, after obtaining instructions, maintained this position.

18. The legal representative of Mr Logan-Pye reiterated that the way the charge was framed "obtaining for someone else" was not available to the prosecution.

19. The argument then broadened and the legal representative for AL-P submitted (at T27 of 14/2/07) that "it is not enough for the prosecution to prove that there was a bit of paper and that ultimately it came to the hands of Rebel. It has to prove that one of these defendants obtained it in a real sense, and obtained it for Rebel" on the prosecutor's alternative basis. A further argument was advanced that the obtaining under the section is directed to the person in the dock and not some other person. The Crown disputed the interpretation.

20. The Local Court ruled (T35 of 14/2/07):

"In this case it is clearly a matter where … a valuable thing is one that is able to be physically possessed, obtained. And accordingly any argument that the construction is that an accused does not obtain but somehow … causes another person to be in possession of is contrary to my reading and construction of the Act. …
[any] presentation of the evidence that would infer that to be the case would be not relevant."

21. In this Court the Director of Public Prosecutions attacked the magistrate's ruling on the s 178BA(1) charges as erroneous and the legal representative of the three defendants did not seek to uphold it. It becomes necessary to assess the impact of the ruling and whether, nevertheless the charges under s 178BA(1) should still have been dismissed.

22. This ruling reduced the evidence which the prosecution intended to lead and the cross-examination of the accused's legal representatives.

23. On the fourth day at the conclusion of the Crown case the magistrate said at T45 of 15/2/07:

"there's no evidence that it was obtained … and … a signing is not necessarily an obtaining."

and

"… the prosecution are relying upon the valuable thing being the cheque, that the cheque was obtained and I can't be satisfied beyond reasonable doubt that that is the case … I can't be satisfied that there was ever an obtaining of the cheque."

24. The magistrate dismissed the s 178BA(1) charges. (T46 of 15/2/07).

25. Section 178BA(1) provides:

"Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years."

26. By virtue of subs(2) "deception means deception (whether deliberate or reckless) by words or conduct as to fact or as to law …".

27. An offence is committed if a person by any deception dishonestly obtains for another person any valuable thing. There was evidence that the cheque, being the valuable thing was received by Rebel Sport Limited and that by his actions at least AL-P dishonestly obtained a valuable thing, the cheque for another person, that is Rebel Sport Limited.

28. "Whosoever" at the start of s 178BA(1) refers to the person practising the deception. An offence is committed if that person dishonestly obtains for himself any valuable thing. A separate offence is committed if the person practising the deception dishonestly obtains for another person a valuable thing." "Another person" in s 178BA(1)may be a relative or a third party.

29. The magistrate tended to concentrate on the question of law which the defendants were raising and he was misdirected by their submissions. The first issue which they raised tended to become lost . That was that the Crown on the charge as framed could not succeed by relying on the alternative that the three accused, and especially AL-P by a deception dishonestly obtained for another person (Rebel Sport Limited) a valuable thing (a cheque for $609.46). The charge, as preferred, does not expressly state for whom the benefit was obtained. It is silent on that first point. The magistrate doubted whether it was correct to deal with this point before the prosecution evidence was completed and did not do so.

30. Having regard to the terms in which s 178BA(1) was cast the section creates two different offences, one of a person by deception dishonestly obtaining for himself (or herself) any valuable thing and another of a person by deception dishonestly obtaining for another person a valuable thing.

31. Based on the speech of Lawton LJ in R v Kovacs 1974 1 WLR 370 at 373 the approval of his remarks in Reg v Charles 1977 AC 177 esp per Lord Edmund Davies at 192 as to s 16(1) of the English Theft Act, the equivalent of s 178BA the essence of the offence is that the accused by deception dishonestly obtained for himself or another a valuable thing. There has to be a causal connection between the deception used and the valuable thing obtained.

32. However, while the essence of the offence is as stated this does not permit the Crown to run two alternative cases under the one count.

33. It was not argued that the application for leave to appeal under s 57(1)(c) of the Crimes (Appeal and Review) Act 2001 was not competent on the basis that the magistrate had not made an interlocutory order in the ruling which he gave on the construction of s 178BA(1). That decision restricted the evidence to be led by the Crown but probably not to a major degree and curtailed the extent of cross-examination by the defendants.

34. It has been held when considering s 5F of the Criminal Appeal Act 1912 that while ruling on the admissibility of evidence does not generally amount to an "interlocutory judgment or order" within s 5F, it will do so, where the effect of the ruling is to prevent the prosecution from putting a case: R v Bozatsis & Anor (1997) A Crim R 296. In DPP v Leonard & Anor [2000] 53 NSWLR 227 at 236 James J applied this reasoning to s 104(4) of the Justices Act. That is the predecessor of the present provisions. See ss 53 and 57.

35. The present case differs in some respects from the previous decisions but as the point was not argued it is unnecessary to consider it further.

36. The magistrate ultimately dismissed the charges under s 178BA(1) primarily upon the ground that he could not be satisfied beyond reasonable doubt that the cheque was obtained (by the defendants). That was the common enterprise charge. The evidence makes it clear that Rebel Sport Limited received the cheque for $609.46. The charge as laid could not succeed.

37. In these circumstances there is no point in remitting the matter to the magistrate. That would be adding unnecessary burdens to the three accused, both as to a lack of finality and costs.

38. The Director pressed for a declaration in these terms, even if the Court thought that there was no point in remitting the natter for further hearing, namely:

A declaration that the magistrate erred in law as to the proper construction and application of s 178BA(1) of the Crimes Act 1900 (NSW) in determining that where the defendant through deception had caused a third party to obtain a valuable thing the section requires that it be shown that the defendant first obtained physical possession of the valuable thing himself/herself.

39. I do not propose to make such a declaration for these reasons:

(a) the point was not argued; it was conceded.

(b) the section is clear

(c) the point has been beyond argument since the remarks of Lawton LJ in Reg v Kovacs 1974 1 WLR 370 at 373 and the House of Lords decision in Reg v Charles 1977 AC 177 esp at 192, a decision on the equivalent English section. It is a pity that the magistrate was not referred to these authorities.

(d) these reasons will be available, albeit they will be of limited use.

Offences Under s 300

40. There is no point in granting leave to appeal on the s 178BA(1) point when the claim for substantive relief fails.

Section 300 Offences

41. In the prosecution's opening speech (T11 of 13/11/06) the charges under s 300 of using a false instrument and that of making a false instrument were described as back-up charges. It was stated that reliance would be placed upon a later amended receipt supplied by Mr Tweed to the PCYC, the heart monitors later being stated to be pedometers.

42. The background to these charges is that on 28 April 2005 an invoice was prepared on the letterhead of Rebel Sport Limited No 33811. The Rebel Staff Name shown was "Roger 0414011238", the contact name at the PCYC was "Steve Plunkett 0407812175", and the amount of the invoice was $247.04. The goods invoiced were two "Polar F2 Heart Rate Monitor". Two quotes were issued that day by Rebel Sport Limited for other goods and on 26 April 2005 an invoice was issued by it for other goods. The two invoices and two quotes totalled $609.46. All bore the same Rebel Staff name and contact name and appeared to have the same hand printing.

43. The mobile numbers recorded on the invoice were those of Mr Roger Tweed and Mr Steve Plunkett.

44. At a later date an Amended Invoice 33811 was presented which had noted on it that the invoice had been paid and that the two "Polar F2 Heart Rate Monitor" had been "Exchanged for Pedometer 340

Reg. Price $39.99"

The quantity stated was "10" and the unit price including GST was stated as $24.70 making a total of $247.00. This was virtually identical with the price of 2 Heart Rate Monitors.

45. The prosecution case was that Mr Tweed was not authorised by Rebel to prepare invoices for goods not actually sold by Rebel. Evidence was given by more senior employees of Rebel that this was so. Mr M J Ponton, the National Operating Manager of Rebel stated that Mr R B Tweed or any other employee of Rebel Sports is not authorised to write out receipts that do not accurately reflect the stock obtained by the customer.

46. Mr Ponton detailed the computer generated receipting system of Rebel Sport and also its computer controlled stock control system. Mr Ponton stated that if the computer system is down or not functioning properly this may result in a staff member having to write out a tax invoice manually. Mr Ponton insisted that no staff member of Rebel was authorised to write a receipt (or invoice) for items that have not been supplied.

47. Mr Ponton identified the book used by Mr Tweed for occasions on which he wrote quotations and invoices by hand as an invoice and quotation book going back to earlier in 2005 ( than April 2005). Mr Tweed headed up Rebel Direct at Charlestown and reported to Mr S Duling at Rebel Head Office at Silverwater. Rebel Direct is a wholesale business of Rebel Sport and specifically targets corporate and community groups. After July 2004 Mr Tweed occupied the position of Business Development Manager. Prior to this appointment Mr Tweed was performing a similar role for Rebel Sport Limited. Mr Ponton considered Mr R Tweed to be a fairly senior member of the Charlestown team.

48. In cross-examination Mr Ponton stated that he was unaware of the problems being experienced by clubs and organisations in obtaining the correct goods on time from Rebel Direct. Mr Ponton was not aware that handwritten invoices were used to alleviate the problems that were part and parcel of the Rebel Direct system.

49. Mr Ponton thought that it would probably be the case that as time passed and to avoid complaints and the problem of non-supply clubs were coming to the Rebel shop at Charlestown and obtaining goods from the shop rather than ordering them from Rebel Direct in Sydney. Mr Ponton was not aware that there were problems with the delay in invoices arriving fro Sydney and clubs not being able to pay within the times fixed by their budgets and losing the money. He was not aware whether handwritten invoices were being used to overcome this problem.

50. Mr Ponton conceded that Mr Tweed handed him the books containing official quotes and those forms where "quote" as crossed out and "invoice" written in.

51. The magistrate found (at T46-47 of 15/2/07) that Mr Tweed had authority to make invoices and did make invoices in terms of the Rebel Sports invoice of 28 April 2005 and the amended invoice dated 28 April 2005 and was entitled to do so.

52. The prosecution case was that while Mr Tweed had authority to make invoices , he was not authorised to write out invoices or receipts which do not accurately reflect the stock obtained by the customer.

53. The prosecution relied on s 299(2) of the Crimes Act which provides that for the purposes of Division 2 – False Instruments – of Part 5 of the Crimes Act an instrument is false if it purports:

"(d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms."

54. By virtue of s 4 of the Crimes Act "Person, Master and Employer severally include any society, company or corporation."

55. To whom do the words "a person" in 299(2)(d) refer? If "a person" in s 299(2)(d) refers in the circumstances of this case to Mr Tweed, he did authorise the making of the invoice and the amended invoice in the terms in which each was made.

56. If, on the other hand, "a person" refers to Rebel Sport Limited it did not authorise the making of either the invoice 33811 of 28/4/05 or the amended invoice in the terms in which they were made.

57. It is doubtful whether the prosecution made clear to the magistrate before he gave his decision and whether he appreciated that "a person" referred to Rebel Sport Limited in the circumstances of the present case.

58. The invoice mentioned and the amended invoice were both on the letterhead of Rebel Sport Limited and purported to emanate from that company.

59. Mr Tweed was the Rebel staff member who prepared the invoice and the amended invoice ostensibly on behalf of Rebel Sport Limited. The transactions were ostensibly between Rebel Sport Limited and Lake Macquarie PCYC.

60. The magistrate relied upon the decision in Brott v The Queen (1992) 173 CLR 426 and its extensive consideration of the crime of forgery. A solicitor inserted his name as a witness to a surety's signature falsely asserting thereby that the surety's signature was affixed in his presence He was unaware that the surety was dead and that the surety's signature had been forged. Under Victorian law a guarantee was effective even though the guarantor's execution was not witnessed. It was held, by majority that the solicitor had not forged the guarantee; by Deane J on the ground that by adding his signature the witness did not impart a false character to the guarantee but merely caused an instrument which purported to be what it really was to contain a false statement, and by Toohey, Gaudron and McHugh JJ, on the ground that nothing the solicitor did made or altered the guarantee or affected its character or legal effect.

61. The argument advanced by counsel for the Director before this Court was:

1. There was a marked contrast between Brott and the present case. Mr Tweed created a false invoice and did not have authority to create invoices that did not reflect the stock obtained by the customer. There was evidence in the prosecution case that two heart rate monitors were not supplied by Rebel on the date in question.


2. The logical consequence of the magistrate's ruling would appear to be that if an employee authorised to create invoices for goods supplied creates an invoice for goods never supplied, or for a greater number of goods than were actually supplied, the employee cannot be charged with make/use false instrument under s 300(2) of the Crimes Act.


3. The magistrate appears to require something other than an admittedly genuine Rebel invoice form albeit wrongly and fraudulently completed. It is not necessary to have, for example, a forgery of a Rebel invoice form, to come within s 300 of the Crimes Act for a false instrument charge. Broth concerned a charge of forgery.


4. In R v Ceylan (2002) 4 VR 208 there was an appeal from convictions of "making a false instrument – to wit, a personal loan application – with intent to defraud Westpac" and from convictions of "using" the same false documents with the relevant intent specified in s 83 of the Crimes Act 1958 (Vic). At 209 Winneke P, with whom the other members of the Court agreed, said


" The statutory offences of 'making a false document' (s 83A(1) … using a false document (s 83A(2) were created in 1988 to replace the common law offences of 'forgery' and 'uttering'."

And at 209-210:

"The essence of the crime of 'making a false document' contrary to s 83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document 'tells a lie about itself' in the sense that it purports to be something which it is not (that is, not 'an authentic document'). Thus the gravamen of the offence is to be found in subs (6) which sets out the various ways in which a document can be 'made false' for the purposes of the offence which marks the offence out from related offences, such as false accounting (s 83) and 'obtaining financial advantage by deception.'(s 82)."
(Ceylan was a case which focussed on s 83A(6)(c) of the Victorian Crimes Act . The equivalent in New South Wales is s 292(2)(c). It was not and could not be suggested that that provision applied in the present case)


5. Section 292(2)(d) of the New South Wales Crimes Act focuses upon authorisation and that Mr Tweed lacked.

6. In R v O'Hare 155 A Crim R 82 Vincent JA with whom the other members of the Court agreed said at [34]:

"Whatever else may be encompassed by the definition documents which are found to be total fabrications but purport to be genuine and are brought into existence by an accused are clearly false within the meaning of the provision."

7. Rebel invoice number 33811 of 28/04/05 was false for the purposes of the charge under s 300 of the Crimes Act bearing in mind the definition of "false" in s 299(2)(d) of the Crimes Act NSW.

62. In R v Ceylan at [[22] Winneke P referred with approval to these comments of Lord Ackner in R v More (citation omitted) when speaking of s 9 of the Forgery and Counterfeiting Act 1981 (the equivalent of s 83A(6) of the Victorian Crimes Act and s 292(2) of the NSW Crimes Act).

"It is common ground that the consistent use of the word 'purports' in each of the paragraphs (a) to (h) inclusive of s 9(1) of the Act imports a requirement that for an instrument to be false it must tell a lie about itself in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered."

63. The invoice and the amended invoice purported to be made and issued by Rebel Sport Limited whereas they were not but were created or made by Mr Tweed but not on behalf of Rebel.

64. The defendants contended that the magistrate was entitled to hold that the documents in question were not false instruments within the meaning of s 299(2) of the NSW Crimes Act. They advanced the following arguments:

1. If an invoice or document through (genuine and honest) error contained a false statement (such as a misdescription of the stock or a mistake as to the quantity of items being sold) and Mr Tweed did not have authority to write invoices that did not reflect accurately the stock obtained by the customer and thus his authority did not extend to making erroneous documents then the consequence would be that he could be convicted of making a false instrument. He would in these circumstances have no intent to make a false instrument. (That is not this case)
2. Section 300(1) does not require that the maker of the document have any general intent in making the document that it be false. If he or she intended to make the document in the terms it was made and those terms were inadvertently inaccurate, the maker would be making a false statement. Equally, a person who knew that the document was inaccurate but used it with the necessary specific intent would be using a false instrument within the meaning of s 300. (Under s 300(2) the person who uses an instrument which is false must know the instrument to be false.
3. While such conduct on the part of the user of such a document may amount to some other variety of fraud, Parliament cannot have intended to impose criminal liability on the basis of the use of a false instrument in such circumstances. (That is not readily apparent).
4. It has been consistently held that, whilst sections such as s 299 amount to codifications of the common law relating to forgery the provisions remain directed towards documents which are false, not merely because they contain false statements but because they 'tell lies about themselves.'
5. The relevant test might be posed in the following terms: Were the documents of a type that Mr Tweed was authorised to make in the terms that he did? The answer to that formulation must be affirmative., The section is not directed to documents that are misleading in what they say but in what they purport to be.

65. I would decide this case on this basis:

a) This document purports to be made by a person who did not make it – it purports to be made by Rebel Sport Limited but it did not make it – see per Lord Ackner, supra, and


b) The relevant falsity goes to the character of the document itself in the sense that it purports to be something which it is not. To make a false document for the purpose of the offence created by s 300 requires more than simply making or altering a document so that it contains known falsehoods – see per Winneke P in Ceylan, supra, at p217. This document purports to be an invoice made or issued by Rebel Sport Limited. It was not.

66. On the basis of R v More and R v Ceylan inadvertent and honest mistakes in documents would not fall within the purview of s 299(2)(d) of the NSW Crimes Act.

67. It is now necessary to turn to the individual charges under s 300.

Charges (Sequences) 3 and 5 Against Mr Tweed and Charge (Sequence) 4 Against Mr Plunkett

68. Charge (Sequence) 3 against Mr Tweed between 29 Aug and 16 Sep 2005 of making a false instrument, Charge (Sequence) 5 against him between 25 Aug and 16 Sep 2005 of using a false instrument and Charge (Sequence) 4 against Mr Plunkett between 25 Aug and 16 Sep 2005 of using a false instrument relate to a document described variously as an updated or amended Rebel invoice dated 28 April 2005 reference 33811. Briefly, the prosecution case was that the PCYC Manager had raised with Mr Plunkett the position as to two heart monitors for $247.00 and was told that the receipt was incorrect and that it was actually 10 pedometers. The administrative officer raised with him obtaining another receipt from Rebel which showed the heart monitors being swapped for the pedometers. She received another copy of invoice 33811 from Mr Tweed showing the exchange. She took the invoice and attached it to the original payment voucher filed in April 2005.

69. The defendants submitted that putting the prosecution case at its highest the inference was available that this was done to thwart (or hinder) any investigation into the apparent disappearance of (or position as to) the heart monitors to which the original invoice appeared to refer.

70. The defendants submitted this was not the prejudice upon which the prosecution had relied and that the prosecution's case was that the making or use of false instruments had induced PCYC to act to its prejudice by parting with money. At T7 of 14/2/07 the prosecution stated that the act she relied on "related to the PCYC parting with money or property, property being money that it otherwise would not part with."

71. The defendants submitted that the amended or updated invoice did not induce the PCYC to act to its prejudice by parting with money. The PCYC had parted with the money some months earlier on payment of the initial invoice about 28 April 2005. The defendants pointed out that whilst it may have been possible for the prosecution to rely upon a different act or failure which prejudiced the PCYC the prosecution never sought to do so. The evidence in the prosecution case was that Mr Tweed delivered the amended invoice to the PCYC in late September 2005 (see para 19 of the statement of K Kennedy. Late September should probably be late August 2005.

72. Accordingly these charges were bound to fail and the magistrate's dismissal of the three charges was justified.

Charge (Sequence) 3 Against Mr Logan-Pye

73. This alleges that on 28 April 2005 he used a false instrument, namely a Rebel invoice, knowing it to be a false instrument.

74. AL-P submitted that the prosecution case was that he used the false instrument on 28 April 2005 when he signed the payment authority to which the invoice was attached and, inferentially the cheque in payment of the invoice. AL-P submitted that it was an essential proof that, at the time he so used it (the invoice) he knew it to be false and that the evidence did not support such a finding.

75. AL-P contended that the prosecution relied in its case against him upon two intercepted telephone conversations between Plunkett and Tweed on 16 and 20 April 2005. AL-P was not a party to those calls. He submitted that they could be admissible against him only if there was reasonable evidence that he was then a party to some unlawful enterprise and that there was no such evidence. AL-P submitted that the only evidence that he ever became aware that the invoice of 28 April 2005 was inaccurate was in a telephone conversation with Mr Plunkett on 29 April 2005, that is, the day after he had relevantly used the document. Mr Plunkett informed AL-P that the reference to heart monitors was not accurate. AL-P submitted that there was nothing in that evidence capable of supporting an inference that he had been privy to any arrangement between Plunkett and Tweed or that prior to that time he had been aware of any falsity in the invoice. AL-P submitted that there was nothing anywhere in the evidence to justify any inference that he must, on any other basis, have knowledge of its falsity imputed to him.

76. There is an alternative view of the telephone intercept material:

(a) In the conversation of 16 April 2005 between Messrs Plunkett and Tweed there is a reference by Mr Plunkett to Adam having gone and "picked that stuff up" and statements by Mr Plunkett that they had to try and invoice it as heart monitors or something, that when they paid the bill they would do the receipt for heart monitors or something like that and that's the golf shoes too, and that he told Adam to get the shoes.

(b) In the conversation of 20 April 2005 between Messrs Plunkett and Tweed there are statements by Mr Plunkett that they had the shoes and that they needed to write out an invoice for the heart monitors.

(c) On 29 April 2005 AL-P telephoned SJP. After some discussion about the roster AL-P remarked that "Rod" came in the office and saw the new shoes. This provoked a reaction from SJP. "Rod" may be Sergeant Rod Harrison. AL-P said that Rod asked when did they get them and that he (AL-P) replied that SJP and he "had to go and buy a pair … because they couldn't get any through State office, so if he asks you where we got 'em from just say we bought … ". SJP interjected, "… I'll say, no we just bought 'em ourselves." AL-P responded, "Yeah that's what I said to him, I said we bought 'em through Rebel for ourselves, … not for a program or anything so …". SJP said, "Yeah don't say that because they're heart monitors."

It appeared that AL-P was prepared to tell and arranged with SJP to tell lies about the acquisition of the shoes. It seems from the tenor of the conversation that the shoes had been acquired sometime previously. On 28 April 2005 the invoice had been used to obtain payment for the heart monitors.
(d) On 28 August 2005 the PCYC Manager telephoned SJP and advised him that Ed (Snr Sgt Ed Beazley) was doing an admin audit and was asking about the heart monitors. SJP replied that the kids got the heart monitors. They were just a little machine used when you are running. When the Club Manager said, "… there was two of them" SJP replied, "Nuh. Don't think so. Anyway I'll have a look."

77. A little later that day SJP telephoned AL-P and asked him to telephone him – it was important. In the telephone conversation which followed SJP advised that the Club Manager was asking where the heart monitors were they bought for this program (Healthy Mind). SJP stated, "… remember we put them down as heart monitors, they're actually shoes." AL-P replied "Yeah, yeah, yeah, yeah." SJP said, "…if he asks you about it, say what we did, we bought heart monitors but we just bought little tiny ones that the kids use for how far they've walked and that." AL-P replied, "Yeah, sure" They agreed that they should say that they "gave them to the kids". This may obviate the need to record them in any PCYC register. After some further discussion about what they should say and the cost of the heart monitors SJP said, "That's when we bought the shoes and shit …". AL-P replied "Yeah …". SJP said, "remember we put them down as heart monitors … so just to cover our arse." AL-P assented to these propositions. They agreed that there was no heart monitor and that they gave the tiny heart monitors (pedometers) away.

78. At a later stage they consoled themselves by agreeing that the authorities would not give them shoes to wear on the program and so they had to make up something to get the shoes through the program (Healthy Mind) so they could wear them on the program.

79. AL-P and SJP were referring to past events.

80. Upon a detailed study of the tapes there is material from which it could be inferred that prior to 28 April 2005 there was a joint enterprise on foot to procure shoes from Rebel to which AL-P and SJP were not lawfully entitled and to devise a way to get the shoes on the Healthy Mind Program and have PCYC pay for them and that the device chosen was to cover the cost by claiming 2 heart monitors at a cost of about $247.04 and using an invoice from Rebel to that effect. On 28 April a cheque was drawn by PCYC in favour of Rebel which included that sum.

81. It is not for me to decide whether the inference should be drawn and the magistrate is entitled to have regard to the whole of the material before him.

82. While I think the magistrate erred in his construction of s 299(2)(d) of the Crimes Act 1900 (NSW) I am not persuaded that the magistrate should have this charge dismissed on the alternative basis propounded by AL-P. The charge should be remitted to the magistrate to be further heard and determined according to law.

83. The Director sought these declarations:

"3. A declaration that, in respect of the offence of Use False Instrument, the Magistrate erred in law as to the proper construction and application of Section 299(2)(d) of the Crimes Act 1900 (NSW) in determining that the Defendant did not use a false instrument.
4. A declaration that the Magistrate erred in law in identifying the elements of the offence of Use/Make False Instrument when he said 'And in regard to what I say the prosecution would need to have shown is – and I still rely upon the input of Brock's case (sic) which shows that there is an intention, and I read that into it, even though it pre-dates that, that the case pre-dates sub-section D, that it would be necessary to show that that invoice was in fact an invoice that was not made as an invoice, by the people who make them as invoices. I tried to explain that as best I can, but that's my ruling'."

84. As neither declaration has any utility, I do not propose to make the declarations sought.

85. Consistently with the views I have expressed I propose:

(1) in respect of each proceeding
(a) to refuse the declarations sought, and

(b) to dismiss the Director's appeal against the dismissal of the charges pursuant to s 178BA(1) of the Crimes Act 1900

(2) in proceeding 12529/07 against Adam Jon Logan-Pye to set aside the order of the Local Court Newcastle, dismissing Charge (or Sequence) 3, namely that on 28 April 2005 he used a false instrument namely one Rebel invoice dated 28/04/05, reference 33811 and remit that matter to the Local Court Newcastle to be heard and determined according to law


(3) in proceedings 12532/07 against Steven John Plunkett to dismiss the Director's appeal against the order of the Local Court Newcastle dismissing Charge (or Sequence) 4, namely that Mr Plunkett between 25/8/05 and 16/9/05 used a false instrument, namely an updated Rebel invoice dated 28 April 2005 reference 33811.


(4) in proceedings 12539/07 against Roger Bruce Tweed to set aside the order of the Local Court Newcastle dismissing Charge (or Sequence) 2 namely that on 28 April 2005 he did make a false instrument, namely one Rebel Sports invoice dated 28/05/05 and remit that matter to the Local Court Newcastle to be heard and determined according to law


(5) in proceedings 12530/07 against Roger Bruce Tweed to dismiss the Director's appeal against the order of the Local Court Newcastle dismissing Charges (or Sequences) 3 and 5, namely that Mr Tweed between 29 or 25/8/05 and 16/9/05 respectively did make (Seq 3) and used 1 (Seq 5) a false instrument namely, an updated Rebel invoice dated 28 April 2005 reference 33811.

86. As there were questions raised as to the need for a grant of leave to appeal and an extension of time I direct the Director to bring in Short Minutes of Order giving effect to the terms of this judgment. There is also the question of costs to be argued. My provisional view is that there should be no order as to costs but this is very much a matter for argument. The Director should deliver his draft Short Minutes to the defendants by 18 January 2008 and the defendants should deliver their response by 25 January 2008.

87. The matter will be listed at 10am on 1 February 2008 at 10am or on such other date and at such other time as may be mutually arranged with my associate to settle the short minutes and to hear any argument as to costs. If the parties prefer I am prepared to deal with the matter by way of written submissions provided the above timetable is kept.

09/09/2008 - Incorrect judgment entered - Paragraph(s) N/A