DPP v Lee

[2006] NSWSC 270

CITATION:	DPP v Adam James Lee & Anor [2006] NSWSC 270
HEARING DATE(S):	07/03/2006
JUDGMENT DATE :	12 April 2006
JUDGMENT OF:	Howie J at 1
DECISION:	The appeal is allowed. The orders of the Second Defendant dismissing the information are quashed. The proceedings are remitted to the Local Court to be heard by another magistrate other than the Second Defendant. The First Defendant is to pay the Plaintiff's costs. The First Defendant is to be entitled to a certificate for costs pursuant to s 6 of the Suitors' Fund Act.
CATCHWORDS:	Criminal Law - Practice and Procedure - Prosecution appeal from orders of magistrate dismissing information - error of law in taking into account irrelevant matters - error in finding no prima facie case - matter remitted.
LEGISLATION CITED:	Crimes (Local Court Appeal and Review) Act 2001 - ss 56(1)(c), 59(1), 59(2)(a) Crimes Act 1900 - s 178BA Crimes (Sentencing Procedure) Act 1999 - s 10 Justices Act 1902 (repealed) - s 109
CASES CITED:	DPP v Lee [2003] NSWSC 612 Lee v DPP [2004] NSWCCA 172 Amalgamated Television Services v Marsden (2001) 122 A Crim R 166 Cox v Salt (1994) 12 WAR 12 R v Love (1989 17 NSWLR 608
PARTIES:	Director of Public Prosecutions v Adam James Lee & Anor
FILE NUMBER(S):	SC 13551/2005
COUNSEL:	P. Lakatos SC - Plaintiff R. Bonnici - Defendant
SOLICITORS:	S. Kavanagh - Plaintiff Allars Mottee Hannaford - Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Magistrate O'Shane

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

WEDNESDAY 12 APRIL 2006

13551/2005 DIRECTOR OF PUBLIC PROSECUTIONS v
ADAM JAMES LEE & ANOR


JUDGMENT

Introduction

1 HOWIE J: On 31 October 2001 Ms Daisy Jones died. Her family wished her to be cremated. On 1 November 2001 Mr Errol Davidson died. His family wished him to be buried. On 5 November 2001 Mr Davidson was mistakenly cremated instead of Ms Jones. On 7 November 2001 Ms Jones was placed in Mr Davidson’s coffin and buried in the plot reserved for him. In order to disguise the difference in weight between Ms Jones and Mr Davidson, pavers or bricks were placed in the coffin with Ms Jones.

2 On 12 November Mr Ebbott, who worked for a funeral business known as Caring Funerals, told a representative of the Department of Health about the burial of Ms Jones. On 14 November Caring Funerals sent an account for $3,309.50, including crematorium fees to Ms Jones’ son who paid the account. On 19 November 2001 Caring Funerals sent an account for $6.585.00 to the widow of Mr Davidson for his funeral. The account was never paid because on 23 November 2001 the body of Ms Jones was exhumed.

3 Arising from these peculiar facts the first defendant, Mr Lee, the funeral director for Caring Funerals, was charged with two offences: obtaining money by deception in relation to the burial of Ms Jones and attempting to obtain money by deception in respect of the cremation of Mr Davidson. The allegation is that in each case Mr Lee knew that payment would be requested from the relatives notwithstanding that Mr Davidson had been cremated and Ms Jones had been buried contrary to the wishes of their respective families and with the intention of deceiving them as to the funeral services carried out on their behalf.

History of the proceedings

4 The matter came before the second defendant, a magistrate, on 11 September 2002. Without hearing evidence she dismissed the informations on the basis that the prosecution could not prove either offence.

5 The Director of Public Prosecutions (the DPP) then sought to have the Magistrate’s orders quashed in this Court on the basis that she had no power to dismiss the informations without hearing evidence and deciding disputed issues of fact. The DPP succeeded and on 8 July 2003, James J quashed the orders discharging Mr Lee and remitted the matter to the Local Court: DPP v Lee [2003] NSWSC 612. His Honour ordered that the proceedings should be heard afresh by another magistrate.

6 Mr Lee appealed to the Court of Appeal against the orders made by James J. On 9 June 2004 the appeal was dismissed save in respect of the direction that a different magistrate hear the matter: Lee v DPP [2004] NSWCCA 172. The Court held that James J did not have power under the provisions in force at the time of his decision to make that order, that is s 109 of the Justices Act 1902 (now repealed). The matter had to be remitted to the magistrate who had made the orders that were quashed.

7 Accordingly the matter came before the Magistrate on 14 December 2004 and evidence was taken. The matter was not concluded on that date and it was adjourned to 14 April 2005 for further hearing of evidence. Submissions were made to the Magistrate at the close of the prosecution case. The Magistrate reserved on the matter and delivered judgment on 29 April 2005 dismissing the informations for substantially the same reasons that she originally dismissed them in September 2002.

Present proceedings

8 By Summons filed on 10 August 2005 the DPP seeks an order pursuant to s 59(1) of the Crimes (Local Court Appeal and Review) Act 2001 setting aside the orders of the Magistrate dismissing the informations. In addition the DPP seeks three declarations as follows:

2. A declaration that the Magistrate erred in law in that she failed to have regard to uncontested evidence which made out the elements of the offence.

3. A declaration that the Magistrate erred in law in that she failed to apply the applicable principles of law to the facts established by the evidence.

4. In the alternative, a declaration that the Magistrate failed to exercise her jurisdiction property in that she took irrelevant/extraneous considerations into account in arriving at her determination.

9 The DPP also seeks a remittal to the Local Court and a fresh hearing before a different magistrate.

10 On behalf of Mr Lee a Notice of Motion was filed on 4 October 2005. It sought the following orders: that the proceedings brought by the DPP be struck out; alternatively that the proceedings be permanently stayed; alternatively that the proceedings be transferred to the Court of Criminal Appeal; that costs be awarded to Mr Lee; that punitive damages be awarded to Mr Lee. At the hearing Mr Lee was represented by Mr Bonnici of counsel. He advised the Court that he did not wish to proceed on the Notice of Motion at the outset of the hearing, but rather he would ask the Court to dismiss the proceedings brought by the DPP either because they had no merit or because it would be unjust to continue the prosecution by remitting the matter for further hearing having regard to the history of the matter and the nature of the charges.

11 The DPP accepted that the proceedings were brought pursuant to s 56(1)(c) of the Crimes (Local Court Appeal and Review) Act and it was therefore necessary for it to show that there had been an error of law committed by the Magistrate in dismissing the information. It was submitted that the error, or errors, of law would be found in the reasons given by the Magistrate. It should be noted that the Magistrate reserved before giving reasons and so more rigour might be expected by her in determining the facts and issues raised at the hearing than in a case where an ex tempore judgment was given at the end of the proceedings.

12 The informations each alleged an offence under s 178BA of the Crimes Act 1900. That section is relevantly as follows:

Obtaining money etc by deception

(1) 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.

(2) In subsection (1):
“deception” means deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including:
(a) a deception as to the present intentions of the person using the deception or of any other person, and

13 The first information alleged that:

Adam James Lee on the 19th of November 2001, at Five Dock, in the State of New South Wales, did attempt to dishonestly obtaining for himself as the Managing Director of Caring Funerals money to wit, $6,595 by deception, namely billing Rose Davidson for funeral and burial services to the late Errol Davidson which were not properly rendered.

14 The second information alleged that:

Adam James Lee on the 14th day of November 2001, at Five Dock, in the State of New South Wales, did dishonestly obtaining for himself as Managing Director of Caring Funerals a valuable thing to wit, a NSW Teachers Credit Union Cheque to the amount of $3309.50, by deception, namely accepting payment from William Jones regarding funeral and cremation services for the late Daisy Jones which were not properly rendered.

15 Much of the argument that has taken place both in the Local Court and in this Court has been concerned with the nature of the charges and the particulars of what is alleged to be the deceptive conduct. Mr Lee argues that the evidence relied on by the prosecution taken at its highest cannot prove the deceptive conduct alleged or that the conduct could have induced the payment of money.

Prosecution evidence

16 The evidence in the prosecution case is relatively straightforward and in a short compass. There is no dispute between the parties that Mr Davidson was cremated in place of Ms Jones or that Ms Jones was buried in Mr Davidson’s coffin. Nor is it disputed that the relatives were billed for the amounts set out in the charges on account of funeral services performed by Mr Lee’s business on their behalf. What is in dispute is when it was that Mr Lee first learned of the fact that Mr Davidson had been cremated and Ms Jones buried in his coffin. The prosecution allege that he knew at least by 8 November when he had a conversation with Mr Ebbott. Mr Lee maintains that it was not until 12 November, when a representative of the Department of Health informed him of the fact.

17 The principal prosecution witness was Mr Ebbott who was employed as an undertaker with Caring Funerals. Mr Ebbott gave evidence that he spoke to Mrs Davidson about the funeral arrangements for her husband and she said she wanted him buried. The funeral was to be on Wednesday 7 November. On the day before, Mr Ebbott was asked by Mr Lee to help put a body into a coffin. He noticed that it was Mr Davidson’s coffin that was being used. He assisted Mr Lee to place the body, which was in a body bag, into the coffin. Mr Lee told him that there was a mistake made on the Monday and that Mr Davidson had been cremated instead of Ms Jones. Mr Lee said that they were placing the body of Ms Jones into Mr Davidson’s coffin. He said he was relieved that the Davidson family had not asked for a viewing and told Mr Ebbott to keep quiet about it.

18 Mr Ebbott gave evidence that he saw Mr Lee pickup a paver and put it into Mr Davidson’s coffin. Mr Lee also placed a bottle with water into the coffin. Mr Ebbott went home but was confused about whether he should speak to the Davidson family about what he had seen. He decided not to do so. He attended what was supposed to be the funeral of Mr Davidson the next day.

19 After the funeral, back at the workshop area of Caring Funerals, Mr Ebbott spoke to Mr Lee and expressed his concern at what had happened. He said that he had been unable to sleep because of it. He wanted Mr Lee to tell the families what had happen or, if he did not want to do so, he would tell them. Mr Lee replied that he should not say anything because “it could hurt his business”. Mr Lee pleaded with Mr Ebbott not to say anything to anyone about the matter.

20 The next day Mr Ebbott resigned. He then contacted a person in the Department of Health, as he was advised to do by a person to whom he had spoken at the Australian Funeral Directors Association. As a result of what he was told, Mr Ebbott made two statutory declarations and sent one to the Department of Health and one to the Registry of Births, Deaths and Marriages.

21 Mr Jones, the son of Ms Jones, gave evidence and his statement was tendered before the Magistrate. On 30 October fearing that his mother was seriously ill, he attended Caring Funerals and spoke to a person there named Grace. He indicated to her that he wanted his mother to be cremated. His mother died the next day. On 2 November he went to Caring Funerals to select the floral arrangement for the coffin. Later that day he received a phone call from Ms Tancred at Caring Funerals who confirmed the time and place of the funeral, being 2.30pm at Rookwood Crematorium. The funeral service took place on 5 November and Mr Lee was present. Mr Jones paid the account sent by Caring Funerals on 15 November 2001 with a credit union cheque.

22 Mr Jones received a phone call from Mr Lee on 23 November 2001 apologising for what had happened and offering to refund the monies paid. He also asked whether he should go ahead with the cremation. Later that evening Mr Lee attended at Mr Jones’ home and spoke to his wife. They refused to accept the refund. Mr Lee asked whether they still wanted a cremation and they said that they did. The statement of Mr Jones contains the following; “I paid and instructed Caring Funerals to cremate my mother on 5 November 2001”.

23 Mr Jones gave evidence and was somewhat confused about dates, but it is clear that he paid the cheque to Caring Funerals on the basis that his mother had been cremated “as per instructions”. Mr Jones was not cross-examined. There was also in evidence a “memorandum of fees” from Caring Funerals dated 14 November. The document refers to Ms Jones and states that the Funeral Services were conducted on 5 November 2001. Although the services conducted are not specified, in the disbursements “paid on your behalf” was a sum of $706 for Crematorium fees.

24 Ms Davidson, Mr Davidson’s widow, gave evidence and her statement was tendered at the hearing before the Magistrate. Mr Ebbott came to her daughter’s house on 2 November to discuss her husband’s funeral. They decided on a burial and chose the casket and flowers. She believed she signed a contract with Caring Funerals for the burial. She agreed with Mr Ebbott that the funeral was to commence at 10.30am on 7 November and the burial was to take place at the Forrest Lawn Cemetery. On 5 November she spoke to Mr Lee about the clothes in which her husband was to be buried. The next day she took the clothing to Caring Funerals. While there she asked the employee at the reception desk whether Mr Lee could drive the hearse down her street on the way to the cemetery. The employee spoke to someone on a phone and then said, “That was Adam and he said that was quite alright”.

25 The next day, the hearse was driven past her home on the way to the cemetery. Mr Lee was present at the funeral and at her request placed a photo of Mr Davidson on the coffin.

26 Ms Davidson received a bill for the funeral expenses on 19 November 2001. She later was told by a representative from the Department of Health of Mr Ebbott’s statutory declaration. On 21 November Mr Lee attended at her home and told her she would not have to pay the account. Ms Davidson signed a consent for the exhumation. Mr Lee told her, “Be prepared for the worst”.

27 Ms Davidson was asked whether she had a contract for her husband’s funeral. She said that she did not as she had mislaid it. She said that Mr Lee asked her to return to him the account she had received on 19 November. Ms Davidson was not cross-examined.

28 Mr Lee made a record of interview with police. He denied the allegations made by Mr Ebbott as to his knowledge that Ms Jones was buried in Mr Davidson’s coffin or that he refused to let the families know what had happened.

Submissions to the Magistrate

29 At the end of the prosecution case Mr Bonnici on behalf of Mr Lee made submissions to the Magistrate. These submissions comprehended both a no case submission and a submission that the Magistrate should have a reasonable doubt on the evidence adduced in the prosecution case, sometimes referred to as a “May v O’Sullivan submission”. In my opinion it is not appropriate to make submissions in this way combining two distinct and different bases upon which a magistrate may dismiss a criminal charge without the defendant giving evidence. The reason is that a determination that there is no case to answer involves a question of law whereas a determination of guilt is a question of fact. In Amalgamated Television Services v Marsden (2001) 122 A Crim R 166 at [37] –[50] the following passage in Cox v Salt (1994) 12 WAR 12 at 14 was approved:

…………..the determination of a no case to answer submission at the close of a prosecution’s case is a question of law, whereas the determination of the ultimate question of guilt beyond reasonable doubt is a question of fact. Although in the exercise of her functions the magistrate is required to determine both questions of law and fact, this cannot destroy the essential separability of these questions.

Subject to certain exceptions, when adjudicating upon the evidence whether a defendant could lawfully be convicted, the magistrate is required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution, is accurate: See R v Bilick & Starke (1984) 36 SASR 321 at 337; Myers v Claudianos (1990) 100 FLR 362 at 369. The exceptions are evidence that is inherently incredible (Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151; [1981] 3 WLR 395 at 403) or manifestly self-contradictory or the product of a disorderly mind: see R v Bilick & Starke at 337.

Where the prosecution case is based on circumstantial evidence, the magistrate is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts: (See Haw Tua Tau v Public Prosecutor (at 150); Myers v Claudianos (at 369).”

30 The prosecutor raised this issue with the Magistrate at the outset of his submissions in the following exchange:

Thomas : Your Honour, just initially I note that that appeared to be both a submission that there was no prima facie case as well as a May v O'Sullivan submission which is most unusual in my submission, to do both.

Her honour : I guess I heard those in the alternative rather than as one. Mr Bonnici made several submissions about the evidence of Mr Ebbott and basically what he was saying towards the end was that if you accept Ebbott’s case or, rather, if one accepts Ebbott’s evidence then consider the May v O'Sullivan situation.

Thomas : Yes, it seemed as though, yes, the prima facie submission was in effect subsumed ultimately by the May v O'Sullivan submission.

Her honour : That's right, absolutely.

31 Quite frankly I simply do not understand the first quoted response by the Magistrate which seems to confuse the two issues raised with her by Mr Lee's counsel. In order to determine whether there was a prima facie case the Magistrate was required to consider that question on the basis that she accepted the evidence of Mr Ebbott and every other prosecution witness taken at its highest. It was only once a prima facie case had been found that the Magistrate turned to consider whether or not to accept the evidence of any prosecution witness beyond reasonable doubt.

32 Keeping the two issues separate and distinct is no mere empty formality. And it is of crucial importance for the present proceedings. If the Magistrate determined to dismiss the informations before her on the basis that the prosecution evidence, even if accepted beyond reasonable doubt, could not prove all the elements of the charges, it is then open to the DPP to argue that her decision was erroneous in law. On the other hand if she determined to dismiss the informations because she did not accept some part of the prosecution’s evidence on a crucial issue beyond reasonable doubt, it would be difficult for the DPP to identify any question of law that would give this Court jurisdiction to intervene.

33 Unfortunately because the two issues were argued together and addressed by the Magistrate in the one judgment, much of the argument before this Court was concerned to identify the basis upon which the Magistrate determined to dismiss the charges. Nowhere does the Magistrate in her reasons make clear whether she is determining that there is no prima facie case or whether she has rejected the evidence given by Mr Ebbott, Ms Davidson or Mr Jones. This is more than regrettable given the history of this matter and the fact that the Magistrate reserved to consider the submissions. Very often this Court will be required to take into account and make allowances for looseness of expression or confusion of thought apparent in a judgment of a magistrate or judge because the reasons for a determination were given ex tempore at the conclusion of the hearing. But it is less easy to be forgiving where, as here, the magistrate reserved and apparently prepared the judgment with the aid of a transcript before giving it.

34 As the prosecutor put to the Magistrate, this was a straightforward case with a single issue: was Mr Ebbott to be believed beyond reasonable doubt? If he was, then I fail to understand how his evidence did not prove the charges. If he was not, then the prosecution had to fail on both charges. Yet the Magistrate does not appear to have addressed this question. It seems to me, with respect, that the Magistrate did not comprehend the real basis of the prosecution case or the significance of the evidence before her. And this was not the fault of the prosecutor.

The Magistrate’s reasons

35 After giving a summary of the evidence in the prosecution case, the Magistrate said the following:

The Court is required to consider all of the evidence before it, the only relevant evidence being as indicated, that of Mr Ebbott and the Court accepts his evidence as far as it goes. However there are significant deficiencies in that evidence in terms of proving the charges against the accused.

There was considerable controversy before me as to what the Magistrate was meaning to convey by this passage. The DPP submitted that it was clear that the Magistrate was undertaking the task of determining whether there was a prima facie case; that is she decided the issue by accepting the evidence of Mr Ebbott but found that it failed to prove all the elements of the offence. On the other hand Mr Bonnici submitted that the Magistrate was indicating that she did not accept the evidence of Mr Ebbott because of deficiencies in his evidence.

36 Of course this passage has to be taken in context and the next three paragraphs of her judgment might illuminate what it was that the Magistrate was deciding. She went on:

The defence cross examination of Mr Ebbott proceeded on the basis that the switching of the bodies could have been done by the witness, Mr Ebbott, but the Court takes the view that there is no evidence before the Court which in any way assists in determining how it was that the wrong body, that of Mr Davidson, was cremated on Monday 5 November 2001. In fact there is no evidence which suggests that the bodies were switched.

Even accepting without question Mr Ebbott’s evidence that on Tuesday 6 November 2001 the accused informed him that Mr Davidson had been cremated by mistake, to use Mr Ebbott’s words, on the previous day and the Court can be satisfied on the balance of probabilities that the accused had some knowledge as at that date but there is no evidence, firstly, that a person or persons deliberately took one body and replaced it with another and, secondly, that the present accused was the person who carried out such action.

Regarding the second of those propositions force is added to that view by reason of Mr Ebbott’s evidence that the accused very rarely engaged in mortuary duties and the preparation of bodies and, of course, as I have just commented, the complete lack of any evidence of the present accused having been involved in any sort of switching of bodies on Monday 5 November or, rather I should say, I beg your pardon, on Friday 2 November, the Friday prior. For that matter there is no evidence before the Court from which it might be inferred in any way that Mr Ebbott switch the bodies, as was suggested in defence submissions.

37 The second paragraph seems to indicate to me that the Magistrate is in the course of determining whether there was a prima facie case. The use of the phrase “even accepting without question Mr Ebbott’s evidence” is consistent with the approach a court is to take in determining whether there is a prima facie case by accepting the prosecution’s evidence at it’s highest, that is without questioning it’s reliability. Similarly the Magistrate’s rejection of the defence attack on Mr Ebbott, that he was responsible for the error in the cremation of Mr Davidson, seems to suggest that the Magistrate is making no adverse finding about the evidence of Mr Ebbott as the defence asked her to do.

38 I do not understand the Magistrate’s reference to “the balance of probabilities” in the second quoted paragraph above. Mr Bonnici submitted that it indicated that the Magistrate was not satisfied of the evidence of Mr Ebbott beyond reasonable doubt, but if that is what she meant she should have said so. It seems to me rather that the Magistrate was accepting the evidence of Mr Lee’s knowledge of the cremation of Mr Davidson for the purpose of considering whether the evidence could prove the charges at a prima facie level.

The act of deception

39 However the Magistrate is, in my respectful opinion, in this part of her judgment addressing a completely irrelevant question: who was responsible for switching the bodies? As the Magistrate correctly noted, there was no evidence as to how it was Mr Davidson came to be cremated. But the prosecution was not alleging that Mr Lee was responsible for that unfortunate state of affairs and certainly was not suggesting that Mr Lee or anyone else did it deliberately. True it is that the prosecutor did refer at the start of his address to “a cover up, a switching of corpses” in a completely inappropriate reference to a comic character on a television programme and, on occasions during his address referred to the switching of bodies, as a form of short hand. But it is clear beyond argument that the prosecution case was that Mr Lee, having learned of the cremation of Mr Davidson’s body, determined to place Ms Jones in Mr Davidson’s coffin and say nothing to the relatives. That was the “cover up” which the prosecutor submitted was at the crux of the prosecution case and in respect of which Mr Ebbott’s evidence was vital.

40 The only relevance of the defence suggestion that Mr Ebbott was responsible for the cremation of Mr Davidson was to raise the allegation that he was lying in his evidence about Mr Lee’s conduct in placing Ms Jones in Mr Davidson’s coffin to cover up Mr Ebbott’s own negligence. It was an attack upon his credit. The defence did not have to prove Mr Ebbott was responsible any more than the prosecution had to prove that Mr Lee was. Yet this non-issue became a substantial part of the Magistrate’s judgment. If this was one of the deficiencies that she saw in the prosecution case arising from Mr Ebbott’s evidence, then clearly she was in error.

41 Earlier in her judgment this passage occurred:

It is contended by the Crown that the switching of the bodies - to use the expression employed by Mr Thomas in submissions to the Court - constitutes a cover up, as he said, the dishonesty or deception necessary to complete the offence. Indeed, the term "switched" necessarily implies a deceit meaning, as per the Oxford English Dictionary, "to exchange items especially with intent to deceive".

As to the switching of the bodies the Crown case is predicated on the evidence of Mr Robin Ebbott. It was further submitted that the accused knowing that the bodies had been switched issued the bills the payment of the funeral services.

42 With respect, the Magistrate was placing far too much emphasis on the use by the prosecutor of the phrase “the switching” of corpses or bodies in the prosecutor’s address to convert that into an element of the prosecution’s case such that, if it were not proved that Mr Lee switched the bodies, the prosecution must fail. It was an infelicitous phrase used by the prosecutor, but it was said in the context of the term “cover up” which is what the prosecution was alleging that Mr Lee had done by placing the body of Ms Jones in the coffin of Mr Davidson and by not disclosing that fact to the relatives of both deceased. In my opinion the true nature of the prosecution case could not have been plainer.

43 Yet the Magistrate continues in her judgment to discuss the lack of evidence as to the work practices at Mr Lee’s business as if this were a deficiency in the case because the prosecution could not negative the Magistrate’s finding that “it might well be possible to unwittingly mistake one body for another absent a view or some documentary identification attached to it”. Whether that was a possibility or not was again simply irrelevant to any issue that was before the Magistrate.

44 The Magistrate then went on:

When the knowledge of the accused is relevant knowledge in terms of the prosecution proving its case beyond reasonable doubt is quite another matter (sic). The state of the evidence about that is such that no necessary or reasonable inference inconsistent with innocence can be drawn. Is not the switching of the bodies per se which is under consideration in this case, rather it is whether by such deception the accused was unjustly or unlawfully enriched or, to put it in the terms of the legislation, obtained a financial benefit therefrom. It is an essential ingredient of the offence that the cause of the payment of the money was a deception used by the accused and I note very strongly at this point that the prosecution case in fact was presented on the basis of the switching of the bodies as leading to the deception.

45 Again this passage shows that the Magistrate completely misconceived the prosecution case. The relevant issue was not whether Mr Lee knew that the bodies were switched, but whether he knew at the relevant time, that is before the accounts were sent to the families, that Mr Davidson had been cremated and that Ms Jones was buried in his place. The prosecution case based upon the evidence of Mr Ebbott was clear that he did. It was not a circumstantial case at all and the Magistrate’s reference to “a reasonable inference inconsistent with innocence” in that passage shows how far the Magistrate had wandered from the real issue in the case.

46 The Magistrate, however, was correct when she stated that “it is not the switching of the bodies per se which is under consideration in this case” but that the issue was whether by his conduct Mr Lee had deceived Ms Davidson and Mr Jones. However she misunderstood the nature of the deceptive conduct being relied upon by the prosecution. It was that Mr Lee allowed the accounts for the funeral services to be sent to those persons knowing that they would pay them unaware of the true situation, being that Mr Davidson had not been buried and that Ms Jones had not been cremated. If Mr Ebbott were believed, then it was part of Mr Lee’s cover-up that the accounts were to be sent because the families were not to know the truth. To hold back the accounts, might put the families on notice that something was amiss. The cover-up required the families to be deceived into paying the accounts on the basis that their wishes had been carried out.

47 The prosecution case was that the motive for the deception was to cover-up the fact that an error had been made rather than simply to obtain the payment of money to which Mr Lee knew he was not entitled, but the motive with which a person acts in obtaining property by deception is relevant only to the question of dishonesty. It has never been suggested that if Mr Lee did what the prosecution alleged that he acted other than dishonestly.

48 It was plain that the prosecution case was that, if Mr Ebbott were believed beyond reasonable doubt, the offence was proved insofar as the deceptive conduct on the part of Mr Lee was proved. In my opinion the prosecution was correct in that contention. Yet the Magistrate clearly did not understand that this was how the case was being run before her. The failure on the part of the Magistrate to appreciate what the case was about was not the fault of the prosecutor who made it perfectly clear in his address. The Magistrate’s fixation on the allegation of switching the bodies simply led her to misunderstand the true nature of the prosecution case.

Were Ms Davidson or Mr Jones deceived?

49 The Magistrate then turned to consider the question of whether the relatives of the deceased were induced to hand over money or the cheque by the invoices sent out by Caring Funerals. She begins this part of her judgment with the phrase “accepting for the purposes of the argument that there was a switching of the bodies”. This clearly indicates to my mind that the Magistrate was determining this next issue on a prima facie level and not on the basis of any assessment of the reliability of the evidence of Mr Ebbott or any of the other prosecution witnesses.

50 Of course this element did not have to be proved in the charge involving Ms Davidson because that charge alleged an attempt. The offence was made out once the prosecution proved deceptive conduct on the part of Mr Lee with the intention of inducing Ms Davidson to part with the money.

51 As to the element of inducement the Magistrate said:

Accepting for the purposes of the argument that there was a switching of the bodies the evidence must then be capable of satisfying the court beyond reasonable doubt that the families were somehow induced to hand over the monies claimed by way of the tax invoices issued by the accused and there is no such evidence and nor can such an inference be drawn, rather the families were concerned to attend to the funeral services of the deceased members and thus to be taken to have expected to pay costs commensurate with the funeral services being conducted. There is no suggestion in those circumstances that they were somehow defrauded, cheated, swindled of their money or otherwise imposed upon to part with it and that is the gravamen of the offence not, as the Crown erroneously put to the Court, that the Jones family expecting a burial of their deceased did not get a burial and likewise the Davidson family did not get the cremation of the deceased family member that they expected.

That submission entirely misconceives what is an issue in these proceedings, that is, as it was presented by the prosecution. However, if in fact the prosecution case relies on any contract that might have been on foot which specified particular funeral services in each case then failure to perform in accordance with the agreed terms of the contract gives rise simpliciter to civil action but if this Court would make any findings in respect of such a contract then it would be necessary that the terms of the contract be proved and in this case given that it might be suggested - and the Court is simply speculating here because this was not part of the prosecution case - that some deception attached to either the issuance of the tax invoices or to the terms of the contract or to any representations that would have been made by the present accused to either or both the families then those matters would have to be prove beyond reasonable doubt and the Court would have to be informed through the presentation of appropriate relevant and admissible evidence as to the relative importance of the terms of the contract and in respect of any such contract the only other evidence which the Court has - and my earlier comments were that the only relevant evidence was that of Mr Ebbott - is the statement of Mrs Rose Davidson who told the Court through her statement given to police at the time in para 4:

"After my husband passed away I made inquiries as to the funeral directors who organised the funeral of my friend's husband and I discovered it was done by Caring Funerals".

52 The Magistrate then quoted a number of paragraphs from Ms Davidson's statement in relation to the arrangements made for the funeral of her husband with Mr Ebbott that were summarised earlier in this judgment. The Magistrate then went on:

Now, in relation to that evidence it has to be said, firstly, that whatever were the terms of any agreement between these parties it is not clear that there was a specific term of a specific contract entered into in regard to the actual funeral arrangements.

I commented on the last occasion that this matter was before the Court that the only reference to funeral services that I could find in any legislation that I have sought to research in relation to this matter was contained in the Funeral Fund Act and funeral services relates to both cremation and burial.

53 The Magistrate then went on to comment on the account given by Ms Davidson of the arrangements made with Mr Ebbott for the burial of her husband. The Magistrate noted that there were other persons present at that time and held the use of the pronoun "we" in that part of her statement where Ms Davidson said that Mr Ebbott came to her daughter’s house and “we all sat in the dining room and discussed funeral arrangements including flowers, caskets, whether we wanted burial or cremation…” did not necessarily include Mr Ebbott. Therefore the Magistrate held that there was very little in the evidence that could assist the court as to the actual terms of any contract and in particular as to any specific representations that Mr Ebbott might have made.

54 Again it should be noted that the Magistrate is clearly dealing with this issue on the basis of whether the evidence in the prosecution case, if accepted at its highest, proved the elements of the offences charged. She was not assessing the evidence on the basis of the reliability of any witness. It will be recalled that there was no contest over the evidence of Ms Davidson or Mr Jones. They were never cross-examined.

55 With respect to the Magistrate, the passages quoted above are inconsistent with the evidence and, in my opinion, offend against both commonsense and human experience. I find it extraordinary that the Magistrate could suggest that a person would enter into a contract with a funeral company for funeral services without there being any agreement between the company and the client as to the manner in which the body was to be disposed. The success of the prosecution did not depend upon a definition of “funeral services” found in some piece of legislation that had no relevance to the proceedings. It depended upon what was agreed between Mr Lee’s company and the client regardless of whether that agreement was in writing or not. There was never any suggestion that Mr Lee was not intending to have Mr Davidson buried or Ms Jones cremated according to the familys’ wishes and in accordance with what they had agreed to pay for the funeral services. The problem arose because his intentions were thwarted by the accidental cremation of Mr Davidson.

56 It is abundantly clear from the evidence that Ms Davidson wished to have her husband buried and Mr Lee purported to act accordingly. Hence Mr Lee agreed to drive the hearse past her home on the way to the cemetery. It was because Mr Davidson had not been buried as arranged that Mr Lee apologised to her and refused to take payment for the services. The suggestion by the Magistrate that Mr Ebbott might not have been part of the conversation with Ms Davidson and the family as to the burial arrangements for her husband, even at a prima facie level, flies in the face of a sensible reading of her statement and the absence of any cross-examination of Mr Ebbott or Ms Davidson to the contrary. In my view the Magistrate’s findings in this regard are perverse.

57 Similarly there was never the slightest suggestion that Mr Jones had not entered into an agreement with Caring Funerals that his mother be cremated. The absence of a contract in writing to that effect was not fatal to the prosecution case and certainly not at a prima facie level. Again Mr Jones evidence was unchallenged. The uncontradicted evidence was that Mr Lee apologised to Mr Jones and asked whether he still wished the cremation to proceed. He also offered to return the payment made. It was clear beyond argument that it was a condition of the agreement entered into between Caring Funerals and Mr Jones that his mother was to be cremated.

58 Further, in respect of the charge relating to Ms Jones there was in evidence the account rendered to her son by Caring Funerals. In respect of that piece of evidence the Magistrate said:

The only further evidence that has been provided to the Court is a memorandum of fees under the letterhead of Caring Funerals Pty Limited and this is a document relating to the furnishing and conducting of funeral services of the late Daisy Jane Jones and I have already made my comments with respect to the meaning of those terms. Once again, it has to be said that that evidence is of very little assistance to the Court.

59 In fact the document was false on its face for two reasons. Firstly it gives the date of the funeral as 5 November when in fact the funeral of Ms Jones did not occur until 7 November when she was buried in the grave of Mr Davidson. Secondly, it contains in the disbursements a crematorium fee that was never paid in respect of Ms Jones because she was not cremated. If Mr Lee knew that document was false, it could not have been sent for any reason other than to induce Mr Jones to pay for the cremation of his mother. It was never suggested that Mr Jones did not pay with a cheque to Caring Funerals as a result of receiving that document and believing it to be true. The only issue was whether Mr Lee knew that the document would be sent and intended that it would deceive Mr Jones into believing that his mother had been cremated in accordance with the agreement reached between him and Caring Funerals. If Mr Ebbott’s evidence was believed to the effect that Mr Lee was covering up the fact that Mr Davidson had been cremated so that the relatives would not know, then a magistrate could infer that Mr Lee must have known and intended that the false accounts would be sent and, therefore, intended to deceive Mr Jones into paying for his mother’s cremation that had never taken place.

60 Similarly there was no suggestion that an account had not been sent to Ms Davidson for the burial of her husband. Although there was no evidence of what it said, it could be inferred that it was false as to the date of his funeral and as to the costs incurred, as they would have been based upon a burial on 7 November and not a cremation on 5 November. If Mr Ebbott’s evidence was believed, then it was open to a magistrate to infer that Mr Lee intended that the accounts would be sent out as part of the cover-up with the intention that Ms Davidson would be deceived into paying the account on the basis that her husband had been buried according to the agreement she had entered into with Caring Funerals.

The Magistrate erred in dismissing the informations

61 The Magistrate concluded her judgment with the following paragraph:

As I was saying, any such contracts have not been formally proved in these proceedings notwithstanding the evidence of Mr Davidson's widow as I have just referred to it and that of Mrs Jones’ son. If the prosecution were to rely on any such contracts to then prove the causal link between the switching of the bodies and the claim for monies, it would also have to prove beyond reasonable doubt what representations were made by the accused person to the respective families at the time when the tax invoices were furnished and there is no evidence whatsoever of that but in any event, as already indicated, there is no evidence of the bodies being switched in the sense of being exchanged with intention to deceive, let alone that the accused did such an act, much less that such deception was the cause of any payment to him.

62 It should be obvious by now that in my opinion this paragraph shows that the Magistrate had completely misconceived the prosecution case notwithstanding that it was relatively simple and straightforward. The prosecution did not have to prove that Mr Lee switched the bodies. That was not the deception relied upon. There was ample and uncontested evidence that there was an agreement between Mr Lee’s company and the relatives that the funeral arrangements would take a specific form, burial in the case of Mr Davidson and cremation in the case of Ms Jones. There was no dispute that the relatives were not induced to make payment by the invoice sent, or that the invoices were not false and deceptive. The only real issue was whether Mr Lee had acted to cover up the mistaken cremation of Mr Davidson by burying Ms Jones in his grave so that the relatives would not know what had happened. If he did, then it might be inferred that Mr Lee must have known and intended that the deceptive invoices would be sent as part of that cover-up and it was done with the intention of deceiving the relatives.

63 In my opinion the Magistrate made in effect the same error that she made when dismissing the informations without a hearing when the matter was first before her. This shows the wisdom of the order made by James J that the matter not be returned to her, even though that order could not be made having regard to the wording of the provision under which James J was given jurisdiction to quash the orders.

64 In my opinion the prosecution had to prove the following: (a) that Mr Lee knew that Mr Davidson had been cremated; (b) that he sought to cover up that situation by having Ms Jones buried in his stead; (c) that as part of the cover-up he knew and intended that accounts would be sent to Mr Jones and Ms Davidson that were deceptive in that they represented that the funeral arrangements had been carried out in accordance with the agreement that Ms Jones be cremated and Mr Davidson buried; (d) that he intended that the recipients of those accounts would be induced by those representations to pay the accounts; (e) that Mr Jones was induced to do so; and (f) as a result of that inducement Mr Lee received or attempted to receive payment. Although it was also necessary for the prosecution to prove that Mr Lee acted dishonestly, if the other elements were proved there was no question but that his actions were dishonest by the current standards of ordinary honest persons: see R v Love (1989) 17 NSWLR 608 at 614.

65 In my opinion the only parts of the prosecution case that were seriously in question were (a) to (d) above and, if Mr Ebbott’s evidence were believed beyond reasonable doubt, those elements could be proved by inference. This is no doubt why the prosecutor told the magistrate that the case was predicated on Mr Ebbott.

66 In my opinion the Magistrate determined that there was no prima facie case on the evidence led by the prosecution and in that finding she made a number of errors of law. The only question is what orders if any this Court should make based upon that finding.

What orders to make?

67 The Court’s powers to make orders consequent upon an appeal under s 56(1)(c) are set out in s 59 which is as follows:

59 Determination of appeals

(1) The Supreme Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.

(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c):
(a) by setting aside the order and making such other order as it thinks just, or
(b) by dismissing the appeal.

68 The DPP have asked me to set aside the orders quashing the informations and to remit the matter to the Local Court to be heard by another magistrate. It was not disputed that I had the power to make those orders under s 59(2)(a).

69 Mr Bonnici submitted that, even if I found the Magistrate erred, I should in the exercise of my discretion dismiss the appeal. He argued that the prosecution was bound to fail because it had misconceived the case and there was no evidence upon which the prosecution could prove any deceptive conduct intended to induce the relatives to hand over money. I cannot accept that submission and have gone to some pains to indicate how I understand the prosecution case and that in my view there is ample evidence, at least on a prima facie level, to prove both charges. Notwithstanding the submissions to the contrary, there is clearly no abuse of process in the prosecution seeking to continue the proceedings as against the Magistrate’s erroneous exercise of her jurisdiction on two occasions. Nor do any of the cases on res judicata or issue estoppel relied upon by Mr Bonnici have any relevance to a statutory right of appeal given to a prosecutor against a decision of a magistrate dismissing an information. As I have already indicated, Mr Bonnici in effect abandoned the relief sought under the Notice of Motion and was content to have the Court consider the exercise of its discretion under s 59.

70 In that regard Mr Bonnici noted that the matter had been before the courts for over four years and submitted that in effect there was no public interest in continuing the prosecution. He argued that, even if his client were convicted, no penalty would be imposed, as the court would, in all the circumstances, dismiss the charges under s 10 of the Crimes (Sentencing Procedure) Act. He submitted that even if the Court held that there was a prima facie case, the prosecution evidence was weak and depended upon circumstantial evidence as to Mr Lee’s knowledge and intention. It is not in my opinion a circumstantial case, and as I have attempted to show, in my opinion if Mr Ebbott’s evidence is accepted beyond reasonable doubt, then it was open to a magistrate to find both of the offences proved. If I might say so with respect, it seems to me that Mr Bonnici has also misunderstood the real nature of the prosecution case.

71 I do not believe it is oppressive to continue this prosecution by remitting the matter to the Local Court. Mr Bonnici can always make an application to the DPP, if he has not already done so, for the prosecution to be terminated in the exercise of the Director’s discretion. I am not persuaded that the only outcome of the prosecution, even if successful, is a dismissal under s 10 or that this itself would be sufficient to justify dismissing the appeal. I do not wish to make any comment on the strength of the prosecution case, but I do not believe that it is so weak that it would warrant in effect bringing the prosecution to a conclusion by dismissing the appeal notwithstanding that in my view there is a prima facie case.

72 It is clear that another magistrate should hear the matter. Much of the evidence is not in dispute and could be dealt with in large part by the use of depositions. Clearly Mr Ebbott would have to be called again. It is unfortunate in the extreme that this matter should remain unresolved after such a lengthy period of time, but to some extent it is due to the inappropriate conduct of the matter when it was first before the magistrate.

73 I can see no purpose to be served in making any declarations.

Orders

74 The Court orders:

1. The appeal is allowed.
2. The orders of the Second Defendant dismissing the informations are quashed.
3. The proceedings are remitted to the Local Court to be heard afresh by a magistrate other than the Second Defendant.
4. The First Defendant is to pay the Plaintiff’s costs.
5. The First Defendant is to be entitled to a certificate for costs pursuant to s 6 of the Suitors’ Fund Act

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