Giurina v McIlroy

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0064
ERMANNO GIURINA	Applicant
v
ANNA LOUISE MCILROY	First Respondent
AND
THE COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	NIALL and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2024
DATE OF JUDGMENT:	19 June 2024 (published on 21 June 2024)
MEDIUM NEUTRAL CITATION:	[2024] VSCA 139
JUDGMENT APPEALED FROM:	[2023] VSC 236 (Tsalamandris J)

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ADMINISTRATIVE LAW – Judicial review – Applicant sought judicial review of decision of County Court on appeal from Magistrates’ Court – Applicant convicted of 63 charges of theft – Where judicial review application dismissed – Whether judge erred in misstating or applying law regarding intention to permanently deprive of property – No error established – Whether judge erred in identifying standard of proof applicable to evidence of incriminating conduct – Only elements of offence required to be proved beyond reasonable doubt – Whether judge erred in assessment of evidence relating to incriminating conduct – No error shown – Whether judge erred in failing to admit evidence not before County Court judge on appeal – No error in refusal to admit evidence – Leave to appeal refused.

Jury Directions Act 2015, ss 4A, 20, 61, 62.

DPP v Roder (2024) 98 ALJR 644, applied.

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Counsel
Applicant:		In person
First Respondent:		Mr L McAuliffe
Solicitors
Applicant:	--
First Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
LYONS JA:

Following an appeal from the Magistrates’ Court,[1] the applicant was convicted of 63 charges of theft by Judge Hannebery in the County Court after an 11‑day trial and sentenced to a community correction order. No appeal lay from the decision of the County Court. The applicant sought in the Trial Division of this Court an order in the nature of certiorari directed to the orders made in the County Court alleging errors of law on the face of the record. He failed. A judge of the Trial Division dismissed the proceeding. From that order, the applicant seeks leave to appeal on seven proposed grounds, which largely rehash some of the arguments rejected by the trial judge. At their heart, they seek to cavil with factual findings by Judge Hannebery in his ruling setting out his reasons for convicting the applicant.
[1]Criminal Procedure Act2009, s 254.

The prosecution case

The applicant was the manager of an owners corporation (‘OC’) relating to a small residential block of units in Coburg North. There were five members of the OC including the applicant, who held a unit as the executor of the estate of his late grandmother. As manager, the applicant had control of a bank account held by the OC.
Between 6 December 2010 and 25 December 2011, using ATMs, the applicant made 63 cash withdrawals from the OC bank account. The withdrawals were in relatively small sums of different amounts and totalled $13,416. The applicant did not dispute he made the withdrawals.
The applicant said that the payments were made in repayment of two debts owed by the OC to him. He said that the amounts covered by charges 119 to 144 related to repayment of a loan, and the withdrawals made in respect of charges 145 to 176 and 178 to 182 related to the fees for legal services provided by the applicant to the OC. He also suggested that some of the money was withdrawn to meet other liabilities of the OC to Johns Lyng Group (‘JLG’), a contractor that had provided plumbing services to the OC.

The reasons for conviction

Judge Hannebery found each of the 63 charges proven.
Judge Hannebery set out the elements of the offence of theft. He said that the prosecution had to prove beyond reasonable doubt the following elements in relation to each charge:
… first, it was the [applicant] who took the money belonging to the [OC] from the ATM. Second, that at the time he took that money, he intended to permanently deprive the [OC] of the money. And third, that at the time he took that money, he did so dishonestly, in that the [applicant] did not believe that he had a legal right to obtain the property.[2]
[2]DPP v Giurina (County Court of Victoria, Judge Hannebery, 30 June 2022), 768–9 (‘Appeal Reasons’).
In respect of the first element, Judge Hannebery held that there was uncontested evidence that the money was in the OC bank account prior to its withdrawal by the applicant. His Honour then outlined the applicant’s contention that the money was his:
… because he was owed a debt, either for monies previously owed or for legal services provided, this created a kind of lien that, in fact, altered the legal status of the money in the account such that it could no longer be considered other than his. I reject this proposition. This element of the offence is made out.[3]
[3]Ibid 769–70.
In respect of the second element, Judge Hannebery said:
… the [applicant] contended that, because, on his own evidence he was taking [the monies] out with an intention to pay other [OC] fees as they arose later, the prosecution could not contend that at the time, he took the cash in the account that he was intending to deprive the [OC] of the money.
Whilst to some extent this is a matter for a conclusion on the evidence, as a matter of law, I consider that the removal of the cash from the ATM could be considered to be usurping the right to [sic] the owner and, as such, constituting an intention to permanently deprive, if it was concluded that it was not withdrawn for a purpose legitimately related to the administration of the corporation.[4]
[4]Ibid 770.
At the hearing before Judge Hannebery, the applicant accepted that he withdrew the monies from the ATMs, but denied that he did so with dishonest intent, and denied that he intended to permanently deprive the OC of the monies. The charges were defended by the applicant on the basis that he was entitled to access the monies, as he contended that the OC owed him money for both the purported loan debt and the legal fees debt.
The applicant contended, both in his record of interview and in giving evidence, that on each occasion he withdrew the money he believed that he had a lawful right to do so (by reason of the purported loan debt and the legal fees debt).
As to the alleged loan, the applicant said that he had paid contributions to the OC on behalf of a lot holder who had died and was entitled to be repaid those amounts. Judge Hannebery did not accept the applicant’s evidence. He noted that, even if the applicant paid contributions on behalf of a lot holder, that would not be a debt owed by the OC and the alleged terms on which this debt arrangement were made were so favourable to the applicant as to defy belief. The debt was unknown to the unit holders and, having regard to its size compared to the required contributions, Judge Hannebery said ‘the concept that a debt of this nature and this amount, that permitted the [applicant] to withdraw money from the account as he pleased, was in existence and approved of by the members of the [OC] is fanciful’.[5] The judge said he found it highly improbable that this debt existed at all.
[5]Ibid 773–4.
Judge Hannebery rejected the applicant’s evidence that he believed that he had a legal right to take the money on account of the alleged loan.
As to the purported legal fees debt, in short, the applicant, who was legally qualified, said that he had been engaged by the OC to provide legal services and that some of the withdrawals were in payment of legal fees. Judge Hannebery rejected this evidence on two bases: first, he did not accept the existence of the retainer. Second, even if there was a retainer, he did not accept that it would have been on terms that allowed him to withdraw money in payment from time to time.
Having rejected the applicant’s evidence that sought to explain the withdrawals, Judge Hannebery turned to the question whether the prosecution had proved beyond reasonable doubt that the withdrawals by the applicant were made dishonestly. Judge Hannebery concluded that the withdrawals were dishonest and, in so finding, his Honour took into account: the timing of the transactions; that the withdrawals were made on weekends, on public holidays, around Christmas and New Year’s Eve; the amount and frequency of the transactions; and the location of the transactions being at or near the same hotel, making the withdrawals more consistent with withdrawals for personal purposes, rather than for the legitimate business of the OC. Judge Hannebery considered that, together, these matters demonstrated that the withdrawals were for personal, recreational purposes, rather than being to cover legitimate expenditure of the OC.

Evidence of incriminating conduct

Before Judge Hannebery, the prosecution relied upon a number of the applicant’s actions as incriminating conduct to prove the element of dishonesty. Judge Hannebery was satisfied beyond reasonable doubt that the following three matters could be relied upon by the prosecution as incriminating conduct (collectively the ‘three incriminating actions’):
(a)First, that the applicant lied about the amount of money in the OC bank account;
(b)Second, that the applicant falsely represented that he had told people about the loan debt, and that he intended to use the money deposited by the unit holders into the account for purposes other than the repayment of the JLG debt; and
(c)Third, that the applicant falsely represented that he was unaware of the JLG letter of demand, sent by JLG’s lawyers to the OC.
Upon making these findings, Judge Hannebery said:
I use the [applicant’s] lies and false representations in two ways. Firstly, I use them to assess the [applicant’s] credibility. The assertions made by the [applicant] as to the existence of a loan or solicitor’s lien are made less probable when he is the only witness who has given evidence of their existence. I also find that the [applicant] is not a credible witness when he asserted that he had an honest belief that he was allowed to withdraw money from ATMs in the manner in which he did.
Second, I use them as evidence of an admission that he did in fact withdraw the money dishonestly. I am satisfied that the only reasonable explanation for those three aspects of incriminating conduct that I have found is that he knew that his dishonesty would be uncovered but for those actions.[6]
[6]Ibid 778–9.

The trial judge’s reasons as relevant to the proposed grounds of appeal

In the Trial Division, the applicant propounded 20 grounds of review. The trial judge gave detailed reasons for her decision to reject each of the judicial review grounds. Because the applicant, in effect, seeks to rerun some of the arguments he made at first instance, with some elaboration, rather than set out a summary of the reasons it is convenient to address the judge’s reasons in the context of considering each of the proposed grounds of appeal.

Proposed grounds 1 and 2

Proposed grounds 1 and 2 are interrelated and will be considered together. They reflect grounds 1 and 2 before the judge.
Proposed ground 1 is expressed as follows:
[The judge] erred at law in rejecting ground 1 of the judicial review application as [Judge Hannebery] had made a misstatement of law which appeared on the record of the second respondent when [Judge Hannebery] stated that an intention to permanently deprive could be made out if the respective property was not withdrawn for a purpose legitimately related to the administration of the corporation …
Proposed ground 2 is as follows:
[The judge] erred at law in rejecting ground 2 of the … [judicial] review application as it was unreasonable for [Judge Hannebery] to be satisfied beyond reasonable doubt on the evidence before him that the [a]pplicant intended to permanently deprive the OC of the relevant monies.
Proposed grounds 1 and 2 fasten on the observation made by Judge Hannebery that ‘I consider that the removal of the cash from the ATM could be considered to be usurping the right to [sic] the owner and, as such, constituting an intention to permanently deprive, if it was concluded that it was not withdrawn for a purpose legitimately related to the administration of the [OC]’.[7]

Applicant’s submissions

[7]Ibid 770.

As he did before the judge, the applicant submits that this misstates the law because, when considering the element of an intention to permanently deprive in relation to the law of theft, he says the only issue to be decided is whether the cash was withdrawn with an intention on his part at the time of each withdrawal to permanently deprive the OC of the money. He says whether it was or was not withdrawn for a purpose legitimately related to the administration of the OC is totally irrelevant for the purpose of this element.
The applicant referred to R v Lloyd (‘Lloyd’)[8] to support his submission that a finding of dishonesty does not address the element concerning an intention to permanently deprive the owner of property. Lloyd involved the temporary taking of films for the purpose of making illegal copies and then returning the original. The venture was dishonest but there was no intention to permanently deprive the film’s owner of the film and therefore no theft.

The judge’s reasons

[8][1985] QB 829 (‘Lloyd’).

The trial judge commenced her analysis of ground 1 by noting that Judge Hannebery was correct to identify that an intention to permanently deprive was an element for each of the 63 charged offences.[9] The judge then noted that it was open to Judge Hannebery to use the evidence, including as to the times, frequency, amounts and locations of withdrawals of the monies from ATMs, to be satisfied that the applicant had an intention to permanently deprive the OC of the monies.
[9]Giurina v McIlroy & Anor [2023] VSC 236, [76] (Tsalamandris J).
Given that Judge Hannebery had rejected the evidence of the applicant in respect of the purported loan debt and the legal fees debt, the judge noted that it ‘logically follows that his Honour was entitled to use evidence of the surrounding circumstances to find that the [applicant] withdrew the monies with an intention to permanently deprive the [OC] of the property.’[10]
[10]Ibid.
The judge observed that the decision of Lloyd was of no relevance to the facts of the case (particularly in light of the findings made by Judge Hannebery in respect of the purported loan debt and legal fees debt).[11] Further, the judge noted that, given that Judge Hannebery had found the applicant to be dishonest and dismissed his evidence that he held an honest belief that he was entitled to withdraw the money as claimed, it was therefore logical, rational and open to Judge Hannebery to reason that his finding of dishonest intent was inconsistent with the applicant’s claim that the monies were only being taken on a temporary basis.[12]

Decision

[11]Ibid [77].

[12]Ibid.

There was no error of law by Judge Hannebery. The judge was correct to reject grounds 1 and 2 for the reasons she gave.
Judge Hannebery correctly referred to the element. Whether in a given case there was an intention to permanently deprive the owner of the property is a question of fact. In this case, it is difficult to see how it arose as a contentious issue given there was no denial by the applicant that the applicant took the money by withdrawing it and that, on his version, he was entitled to do so in repayment of debts. In other words, he could keep the money as his own. The judge’s finding, however, that the money was not withdrawn for the purposes of the OC was not irrelevant because it rebutted any possibility that it was being kept by the applicant in cash to later pay OC liabilities. It was directly relevant to the applicant’s argument that he was keeping money only until there was a settlement of a dispute between the OC and JLG concerning the cost of plumbing work. The judge referred to the purpose of the unit holders depositing an amount to meet the liability of JLG concerning plumbing works. It was well open to Judge Hannebery to reject as entirely fanciful that the applicant withdrew small amounts of money to hold until the settlement of the dispute was resolved. There would be no reason for him to do so.
The judge did not conflate an intention to deprive the owner of property with dishonesty. These grounds are rejected.

Proposed ground 6

Proposed ground 6 is related. It is expressed as follows:
[The judge] erred at law in failing to admit the notices of pre‑hearing conference because they were relevant to the issues of whether the [a]pplicant had intended to permanently deprive the OC of the relevant monies and to the issue of whether the [a]pplicant had falsely represented that he had told people about the relevant loan and that he intended to use monies for purposes other than repayment of the [JLG] debt.
Before the judge, the applicant sought to adduce evidence that was not before Judge Hannebery. The evidence took the form of a notice of hearing issued from the Magistrates’ Court giving notice of a hearing issued by JLG against the OC.
The existence of a dispute between those parties did not provide any explanation for the applicant to withdraw small amounts of cash and keep them himself even on a temporary basis. It was unsurprising that Judge Hannebery rejected the evidence of the applicant on this aspect.
The trial judge refused to admit the evidence.[13] Her Honour was correct to do so. The document showing the existence of a dispute in the Magistrates’ Court does nothing to establish legal unreasonableness or other legal error on the part of Judge Hannebery who was tasked with the determination of the prosecution for theft on the evidence before him.
[13]Ibid [157]–[163].
The hearing notice provides no reason to think that the convictions recorded by Judge Hannebery are infected by legal error. They do not suggest, let alone give any reason for thinking, that the applicant was not guilty of the theft charges or that the hearing was unfair in any respect.
Proposed ground 6 must be rejected.

Proposed grounds 3, 4 and 5

These three grounds concern the admission and use by Judge Hannebery of the three incriminating actions: first, that the applicant lied in a Victorian Civil and Administrative Tribunal (‘VCAT’) hearing about the amount of money in the OC account; second, that the applicant falsely represented that he had told other people about his alleged loan with the OC and that he intended to use money deposited by unit holders into the account for purposes other than the repayment of the JLG debt; and third, that the applicant falsely represented that he was unaware of a JLG letter of demand, sent by JLG’s lawyers to the OC.
Proposed grounds 3, 4 and 5 are in the following terms:
3.[The judge] erred at law when she stated that [Judge Hannebery] did not have to be satisfied beyond reasonable doubt of the occurrence of each of the three matters of incriminating conduct that [Judge Hannebery] used as an implied admission that the [a]pplicant had withdrawn the monies dishonestly.
4.[The judge] failed to properly assess the evidence before [Judge Hannebery] which indicated that it was unreasonable for [Judge Hannebery] to have been satisfied beyond reasonable doubt of the occurrence of the three matters he used as an implied admission of the [a]pplicant’s dishonesty as the evidence did not support his findings to the criminal standard and therefore [the judge] consequently erred at law in dismissing grounds 15, 16 and 17 of the judicial review application.
5.Consequent to the errors of [the judge] as referred to above under grounds 3 and 4 of this leave application her Honour erred at law in rejecting ground 18 of the ground[s] of judicial review as it was unreasonable at law for [Judge Hannebery] to use the [a]pplicant’s alleged lies and false representations as an implied admission that the [a]pplicant had withdrawn the relevant monies dishonestly.

The judge’s reasons

The judge commenced her analysis of grounds 15, 16 and 17 before her (which pertained to the applicant’s complaints as to the findings made by Judge Hannebery of the incriminating conduct) by noting that each of the three grounds was an impermissible attempt to invite merits review.[14]
[14]Ibid [103].
Notwithstanding, the judge then noted that Judge Hannebery was the finder of fact and it was therefore open for his Honour to reject the applicant’s evidence and submissions in respect of these matters. The judge observed that there was no error in Judge Hannebery’s path of reasoning in relation to the applicant’s incriminating conduct and that, contrary to the applicant’s submissions, Judge Hannebery did not need to be satisfied beyond reasonable doubt as to the three matters relied upon by the prosecution as incriminating conduct. The judge observed that ‘it was only the three elements of the offence which needed to meet that criminal standard’.[15]
[15]Ibid [135].
Ultimately, in dismissing these grounds, the judge was not persuaded by the applicant that the findings made by Judge Hannebery in relation to the three incriminating actions were ‘illogical, irrational, or so unreasonable that it could be said that [Judge Hannebery] acted beyond the limits of the valid exercise of his power’.[16]

The applicant’s submissions

[16]Ibid [139].

The applicant submits, in substance, that before Judge Hannebery could use the three incriminating actions as an implied admission that he had withdrawn the monies dishonestly, his Honour needed to be satisfied beyond reasonable doubt that each of the three incriminating actions had occurred. The applicant contends that if one or more of the three incriminating actions could not be proved beyond reasonable doubt, then the ‘chain of evidence’ would be broken and he was required to be acquitted of all of the 63 charges. In support of this submission, the applicant relies upon Edwards v The Queen.[17]
[17](1993) 178 CLR 193, 210–11 (Deane, Dawson and Gaudron JJ); [1993] HCA 63.
The applicant further contends that the judge erred at law in concluding that Judge Hannebery did not need to be satisfied beyond reasonable doubt as to the occurrence of the three incriminating actions.

The first respondent’s submissions

The first respondent refutes the applicant’s submission that the judge erred at law in concluding that Judge Hannebery did not need to be satisfied beyond reasonable doubt as to the occurrence of the three incriminating actions. The first respondent submits that s 61 of the Jury Directions Act 2015 (‘JDA’) is applicable in that it provides that the only matters which need to be proved beyond reasonable doubt are the elements of the criminal offence.
Contrary to the applicant’s submission that Judge Hannebery used the three incriminating actions as a ‘chain of evidence’ amounting to an implied admission of the applicant’s dishonesty, the first respondent submits that each of the three incriminating actions was a ‘stand‑alone piece of evidence in addition to other pieces of conduct such as the timing and nature of the transactions’, which together provided ample evidence to support the applicant’s conviction.

Decision

The applicant’s arguments are built upon the following propositions: the incriminating conduct was the only evidence relied on by the prosecution and found by Judge Hannebery to establish dishonesty; as an ‘indispensable link in the chain’, the judge could only find dishonesty if he found that each item of incriminating conduct was proved beyond reasonable doubt; the judge approached the items of incriminating conduct on the basis that he could only use them if they were established to the criminal standard; and the facts could not establish the three items to that standard.
The first and second propositions cannot be accepted. In his reasons, Judge Hannebery made it plain that the timing, frequency, amount and location all showed that the withdrawals were for personal use rather than for the legitimate purposes of the OC.[18] Once the judge had rejected the loan and legal fee explanations, the inference of dishonesty was overwhelming even before any reliance was placed on the incriminating conduct.
[18]Appeal Reasons, 776–8.
The facts that prove incriminating conduct do not have to be proved beyond reasonable doubt. Section 20 of the JDA, which applied to the hearing in the County Court,[19] is applicable to this proposed ground and it relevantly provides:
[19]JDA, s 4A.
20 Evidence of incriminating conduct
(1)The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
…
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
…
Section 61 of the JDA is also applicable and it relevantly provides:
61 What must be proved beyond reasonable doubt
Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a)the elements of the offence charged or an alternative offence; and
…
Crucially, s 62 of the JDA provides:
62 Abolition of common law obligation to give certain directions
Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.
Notes
1 This provision abolishes—
•the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and
•the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and
•any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.
2Section 4 applies generally to override any rule of law or practice to the contrary of this Act.
The High Court has recently affirmed in DPP v Roder that it is only the ‘elements of the offence’ that must be proved beyond reasonable doubt, and not the evidence that supports the proof of such elements.[20] This distinction, as the High Court states, is at the heart of ss 61 and 62 of the JDA.[21]
[20](2024) 98 ALJR 644, 649 [19]; [2024] HCA 15.
[21]Ibid.
In light of the above, it therefore follows that the judge was correct to conclude that Judge Hannebery was not required to be satisfied beyond reasonable doubt as to the occurrence of the three incriminating actions. Judge Hannebery was only required to be satisfied beyond a reasonable doubt as to the elements of the crime of theft.
As noted, the third proposition relied on by the applicant is that Judge Hannebery applied the criminal standard of proof to the incriminating conduct. The applicant is perhaps somewhat inconsistent in making this submission in that other arguments appear to be predicated on Judge Hannebery failing to apply the criminal standard. Putting that to one side, it appears from his reasons that Judge Hannebery found that the three incriminating actions had occurred beyond a reasonable doubt. That is to say, he was satisfied beyond reasonable doubt that the applicant had lied about the amount of money in the OC account, that he had told other people about the loan and that he was unaware of the JLG letter of demand. For this reason, the applicant’s third proposition, namely that the judge approached the items of incriminating conduct on the basis that they could only be used if they were established to the criminal standard, may be accepted.
The applicant next submits that the judge was wrong to find the facts proved beyond reasonable doubt. There are several answers to this proposition. First, there is no error of law in merely making a wrong finding of fact. The judge was correct in seeing this aspect of the applicant’s judicial review proceeding as impermissible merits review.
Second, there was a basis for Judge Hannebery to be satisfied to the criminal standard that the applicant had lied in each of the three respects. The first alleged lie was made at VCAT when, in the course of a hearing, the applicant was asked in cross‑examination about how much money the OC had in its account. To that question, the applicant answered ‘roughly about four and a half thousand’. In the County Court, the applicant said that he had understood the question as asking him how much cash he held on behalf of the OC rather than how much was in the bank account. That is, he sought to defend his answer not on the basis that it was true but that it arose from a misunderstanding of the question. The applicant was directly challenged on that topic in cross-examination, the judge had the benefit of seeing and hearing the witness give evidence in the context of the evidence as a whole, and it was well open to Judge Hannebery to reject that account and to find that the applicant was telling a deliberate untruth.
The second alleged lie concerned the applicant’s evidence that he had told other people, namely fellow lot holders Russell Ward and Maria Picone about the existence of the alleged loan with the OC and that the money would be used to repay the loan but would be available to later pay any amount owing to JLG for work done by it. Acceptance of the applicant’s account of telling those people those things depended on believing the applicant. His account was unsupported by any corroborating evidence and was inconsistent with the evidence given by a number of witnesses called by the prosecution. It was well open to Judge Hannebery to entirely reject the applicant’s evidence on this matter. No error of law is apparent.
The third piece of incriminating conduct concerned the applicant’s representation that he was unaware that JLG had sent a letter of demand to the OC seeking payment of its account, being a letter from Pasha Legal dated 4 March 2011. Judge Hannebery, having heard the trial including the evidence of the applicant, as well as the evidence of Ms Picone and Gabrielle New, was well placed to assess the veracity of the applicant’s account. A clear inference that arose from the evidence was that the letter was placed in the OC’s letterbox and, even if it had been first read, it remained there and therefore was available to the applicant to read. Judge Hannebery also had the evidence of Ms Picone which suggests that the applicant had repeated conversations with a lawyer on behalf of JLG. Judge Hannebery adverted to the standard of proof that he intended to apply in relation to incriminating conduct, which, as it happens, was favourable to the applicant. Judge Hannebery did not believe the applicant and, on that basis, found that he had lied in order to cover up the offending. Judge Hannebery found, as we have said, that the applicant lied about how much money was in the account, about telling other people about the loan and about knowledge of a letter of demand.
In considering whether the applicant’s account on these three topics was truthful, Judge Hannebery had the benefit of seeing the applicant give his evidence. He found the existence of the loan and a debt for legal services to be fanciful. It was well open to find that the applicant had engaged in a charade of having a legal entitlement to be paid the money or keeping the money temporarily to use for some OC purpose related to JLG, and that he had lied to cover up some of the loose ends in his account. It was open to Judge Hannebery to reject the applicant’s evidence.
It is important at this juncture to return to the nature of the proceeding before the judge in the Trial Division and in this Court. The applicant sought to establish errors of law on the face of the record. No appeal lay from the decision of Judge Hannebery, nor was it enough for the applicant to point to errors of fact. No error of law has been demonstrated in relation to Judge Hannebery’s rejection of his account and in his factual findings in relation to the three incriminating actions.
The applicant attempted to clothe his arguments with the language of judicial review by contending that the findings of Judge Hannebery were unreasonable in the sense of having no intelligible justification. We do not agree. The findings of Judge Hannebery, including in relation to the incriminating conduct, were entangled with the applicant’s arguments as to the existence of a loan and a liability for legal fees. As his Honour observed, that account could not sit with the nature, frequency, location and amount of the withdrawals and could not sit comfortably with what might be expected in relation to the management and operation of an OC account. The inference that the applicant was treating the OC’s money as his own and, after the event, sought to falsely explain his retention of the money away as the discharge of a liability was overwhelming. Certainly, there was no legal error in Judge Hannebery rejecting that account to the criminal standard. The pieces of incriminating conduct were minor in the scheme of the prosecution case, they bolstered the case on dishonesty and treating them as the judge did was entirely consistent with the rejection of the applicant’s evidence on the critical issues. There was, therefore, no legal error in Judge Hannebery’s conclusion that the only reasonable explanation for the three incriminating actions was to avoid the applicant’s dishonesty being uncovered.
For these reasons, proposed grounds 3, 4 and 5 have no real prospects of success.

Proposed ground 7

Proposed ground 7 is expressed in the following terms:
Without prejudice to the [a]pplicant, even if the evidence which formed the basis of grounds 15, 16, 17 and 18 of the judicial review application were considered as a whole rather than requiring each of the three matters of incriminating conduct to be proved beyond reasonable doubt, it was still unreasonable for [Judge Hannebery] to have concluded that the three relevant matters had occurred and then to use them as an implied admission of the [a]pplicant’s dishonesty which required [the judge] to allow the [judicial] review application. This was because there was an insufficient evidentiary basis for [Judge Hannebery] to have come to the conclusion that the [a]pplicant had impliedly admitted to his dishonesty when withdrawing the relevant monies by such incriminating conduct to satisfy the required criminal standard of proof.
This proposed ground appears to reagitate the same issues reflected in proposed grounds 3, 4 and 5.
Giving our conclusion in relation to those grounds, it is unnecessary for us to consider this ground. In any event, there was more than sufficient evidence for Judge Hannebery to conclude beyond reasonable doubt that the applicant acted dishonestly when withdrawing the monies for the reasons set out when addressing proposed grounds 1 and 2.
As a result, proposed ground 7 has no real prospects of success and must therefore fail.

Conclusion

Leave to appeal on each proposed ground must therefore be refused.

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[2024] VSCA 139

19 June 2024 (published on 21 June 2024)