Harwood v The State of Western Australia
[2016] WASCA 8
•13 JANUARY 2016
HARWOOD -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 8 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:64/2015 | 11 SEPTEMBER 2015 | |
| Coram: | BUSS JA MAZZA JA CORBOY J | 13/01/16 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAWN HARWOOD THE STATE OF WESTERN AUSTRALIA GRAEME ROBERT HARWOOD |
Catchwords: | Criminal law Appeal against conviction Stealing as a servant Honest claim of right |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3) Criminal Code 1913 (WA), s 1, s 22, s 143, s 371, s 378, s 409(1), s 473, s 552 Criminal Law Consolidation Act 1935 (SA), s 234 |
Case References: | Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314 Hunter v The State of Western Australia [2014] WASCA 184 Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 R v Jeffrey [2002] QCA 429; (2002) 136 A Crim R 7 R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28 R v Waine [2006] 1 Qd R 458; (2006) 157 A Crim R 490 Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 Walden v Hensler [1987] HCA 54; (1987) 165 CLR 561 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HARWOOD -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 8 CORAM : BUSS JA
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 1159 of 2013
Catchwords:
Criminal law - Appeal against conviction - Stealing as a servant - Honest claim of right
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code 1913 (WA), s 1, s 22, s 143, s 371, s 378, s 409(1), s 473, s 552
Criminal Law Consolidation Act 1935 (SA), s 234
Result:
Appeals dismissed
Category: B
Representation:
CACR 64 of 2015
Counsel:
Appellant : Mr S B Watters
Respondent : Mr R G Wilson
Solicitors:
Appellant : Naumovski Legal
Respondent : Director of Public Prosecutions (WA)
CACR 65 of 2015
Counsel:
Appellant : Mr S B Watters
Respondent : Mr R G Wilson
Solicitors:
Appellant : Gabrielle Clarke Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Hunter v The State of Western Australia [2014] WASCA 184
Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
R v Jeffrey [2002] QCA 429; (2002) 136 A Crim R 7
R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28
R v Waine [2006] 1 Qd R 458; (2006) 157 A Crim R 490
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234
Walden v Hensler [1987] HCA 54; (1987) 165 CLR 561
1 BUSS JA: Each of the appellants appeals against conviction.
2 The appellants, who at all material times were husband and wife, were charged jointly on indictment with numerous stealing and fraud offences.
3 On 14 January 2015, after a trial in the District Court before Scott DCJ and a jury, the appellants were convicted of some but not all of the charges against them.
4 Each of the appellants was separately represented by defence counsel at the trial.
5 The appellant in CACR 65 of 2015 (Mr Harwood) was convicted of:
(a) five counts of fraud, contrary to s 409(1) of the Criminal Code (WA) (the Code), being counts 1, 13, 14, 15 and 35;
(b) one count of attempting to pervert the course of justice, contrary to s 143 of the Code, being count 34; and
(c) 28 counts of stealing as a servant, contrary to s 378(7) of the Code, being counts 2, 17, 18, 19, 20 to 33 inclusive and 36 to 45 inclusive.
6 The appellant in CACR 64 of 2015 (Mrs Harwood) was convicted of 24 counts of stealing as a servant, contrary to s 378(7) of the Code, being counts 20 to 33 inclusive and 36 to 45 inclusive.
7 Mr Harwood's appeal relates only to his convictions on counts 17, 18, 19, 20 to 32 inclusive and 36 to 45 inclusive, being counts of stealing as a servant.
8 Mrs Harwood's appeal relates only to her convictions on counts 20 to 32 inclusive and 36 to 45 inclusive, being counts of stealing as a servant.
9 I agree with Mazza JA that the appeals should be dismissed. My reasons are as follows.
The background facts and circumstances, the State's case at trial and the appellants' cases at trial
10 The background facts and circumstances, the State's case at trial and the appellants' cases at trial are set out in Mazza JA's reasons. I will not reproduce those details except to the extent necessary to explain my reasons.
11 At all material times, Alwyn Duke was the managing director and sole shareholder of Finn Kayaks Pty Ltd (Finn Kayaks). The company's main business involved the manufacture of kayaks at its factory in O'Connor. Generally, Finn Kayaks sold its products by wholesale. It did, however, operate a small retail shop at its O'Connor factory. Also, on the State's case, after about mid-2010 Finn Kayaks operated a retail shop in Palmyra known as Ocean Paddler.
12 At all material times, Basil Cooks carried on a business under the name Ranger Outdoors Mandurah. Finn Kayaks sold products from time to time to Ranger Outdoors Mandurah.
13 Jeffrey Harwood was Mr Harwood's younger brother. At all material times, Jeffrey Harwood carried on a business under the name Coral Bay Caravan and Camper Hire. Jeffrey Harwood entered into an agreement with Finn Kayaks to sell its products on consignment.
14 At all material times, Geoffrey Rayner carried on a business either under the name Ranger Camping Joondalup or under the name Getaway Outdoors. Finn Kayaks sold products from time to time to Ranger Camping Joondalup/Getaway Outdoors.
The relevant counts on which Mr Harwood and Mrs Harwood were convicted
15 Counts 17 to 19 alleged:
(17) Between 23 February 2010 and 19 October 2011 at Perth [Mr Harwood], being a servant of Finn Kayaks Pty Ltd, stole life vests the property of Finn Kayaks Pty Ltd and being the amount of a general deficiency.
(18) On 23 April 2010 at Perth [Mr Harwood], being a servant of Finn Kayaks Pty Ltd, stole kayaks and accessories, the property of Finn Kayaks Pty Ltd.
(19) On 21 May 2010 at Perth [Mr Harwood], being a servant of Finn Kayaks Pty Ltd, stole a kayak and accessories, the property of Finn Kayaks Pty Ltd.
16 Each of counts 20 to 32 inclusive and 36 to 45 inclusive alleged that on a specified day, at Perth, Mr Harwood and Mrs Harwood, being servants of Finn Kayaks, stole a specified sum of money, the property of Finn Kayaks.
The relevant provisions of the Code
17 Section 371(1) of the Code provides:
A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.
18 Section 371(2) of the Code provides, relevantly:
A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say -
(a) An intent to permanently deprive the owner of the thing or property of it or any part of it.
19 By s 378 of the Code, relevantly, any person who steals anything capable of being stolen is guilty of a crime. By s 378(7), if the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.
20 Section 22 of the Code provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
21 The term 'property' is defined in s 1(1) of the Code to include 'real and personal property and everything, animate or inanimate, capable of being the subject of ownership'. The term 'property' is also defined in s 371(7) of the Code, for the purposes of s 371, to include, amongst other things, 'any description of real and personal property, money, debts, bank credits, and legacies'.
The legal principles governing the defence of honest claim of right
22 In Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [74] - [80], I summarised (Miller JA & Newnes AJA agreeing) the general legal principles governing the defence of honest claim of right under s 22 of the Code. See also Hunter v The State of Western Australia [2014] WASCA 184.
23 I merely note, for present purposes, that a person can have an honest claim of right even if he or she uses dishonest means to gain access to or obtain the property or money in respect of which the claim is asserted. See R v Kastratovic (1985) 42 SASR 59, 65 (King CJ); Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [30] (Toohey & Gaudron JJ); Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 [140] (McLure JA).
The material issues of fact in dispute at the trial
24 The material issues of fact in dispute at the trial in relation to the counts the subject of Mr Harwood's appeal were these:
(a) As to count 17, whether the State had proved beyond reasonable doubt that there was no agreement between Mr Duke and Mr Harwood, as alleged by Mr Harwood, for Mr Harwood to purchase the life vests.
(b) As to counts 18 and 19, whether the State had proved beyond reasonable doubt that there was no agreement between Mr Duke and Mr Harwood, as alleged by Mr Harwood, for Mr Harwood to sell kayaks and accessories belonging to Finn Kayaks to Mr Cooks on behalf of Ranger Outdoors Mandurah.
(c) As to counts 20 to 32 inclusive and 36 to 45 inclusive, whether the State had proved beyond reasonable doubt that Mr Harwood had no entitlement to moneys received for products sold to the businesses operated by Jeffrey Harwood and Mr Rayner; in particular, whether the State had proved beyond reasonable doubt that Mr Harwood was not the owner of the Ocean Paddler business, as alleged by Mr Harwood.
25 So, the material issues of fact in dispute in relation to the counts the subject of Mr Harwood's appeal were, in essence, whether agreements were made between Mr Duke and Mr Harwood, as alleged by Mr Harwood, and who (Mr Harwood or Finn Kayaks) was the owner of the Ocean Paddler business.
26 Mr Harwood gave sworn evidence in his defence at the trial. He asserted that he had acted honestly and had obtained the property and moneys the subject of the charges against him either with the agreement of Mr Duke or because he was the owner of the Ocean Paddler business. Mr Harwood did not give evidence that, apart from the alleged agreements with Mr Duke and apart from his alleged ownership of the Ocean Paddler business, he believed he had a right to the property and moneys in question.
27 Mr Duke gave sworn evidence as a State witness to the effect that he did not make agreements with Mr Harwood, as alleged by Mr Harwood, and that Finn Kayaks was the owner of the Ocean Paddler business.
28 The material issue of fact in dispute at the trial in relation to the counts the subject of Mrs Harwood's appeal was, if the State had proved beyond reasonable doubt that Mr Harwood was guilty of counts 20 to 32 inclusive and 36 to 45 inclusive, whether the State had also proved beyond reasonable doubt that Mrs Harwood was engaged in a joint criminal enterprise with her husband in relation to those counts.
29 Mrs Harwood gave sworn evidence in her defence at the trial. She said in evidence that she had acted honestly in respect of the moneys the subject of the charges against her. She denied any knowledge of the offending alleged in counts 20 to 32 inclusive and 36 to 45 inclusive and, in particular, denied that she had knowingly participated in a joint criminal enterprise with Mr Harwood in relation to that offending, as alleged by the State.
The grounds of appeal
30 Each of Mr Harwood and Mrs Harwood relies on one ground of appeal which is, in substance, identical.
31 The ground, as amended at the hearing, reads:
There was a miscarriage of justice in relation to s 22 of the Criminal Code as it related to [the counts challenged by the appellants], [in that the trial judge] failed to direct the jury that a person can have an honest belief with respect to property even if dishonest means were used to access the property.
32 On 1 May 2015, Mazza JA granted leave to appeal.
The trial judge's directions to the jury
33 At the trial, neither defence counsel for Mr Harwood nor defence counsel for Mrs Harwood referred to an alleged honest claim of right in his opening or closing address. The prosecutor raised s 22 of the Code with the trial judge before the commencement of his Honour's summing up. His Honour decided, without objection by defence counsel, to direct the jury on the defence of honest claim of right.
34 The trial judge gave the jury some written handouts, before the commencement of his summing up, on the elements of the counts in the indictment and the defence of honest claim of right. His Honour had previously given drafts of the handouts to the prosecutor and defence counsel. His Honour received submissions on the drafts. The final form of the handouts was agreed by the prosecutor and defence counsel (ts 3420).
35 The jury handout for count 17 stated that, for the State to prove the count against Mr Harwood, the State had to prove beyond reasonable doubt, relevantly and in effect, that:
(a) between 23 February 2010 and 19 October 2011 Mr Harwood was a servant of Finn Kayaks;
(b) Mr Harwood stole a number of life vests, namely 520 vests or a lesser number being the amount of a general deficiency; and
(c) the life vests for which Mr Harwood failed to account, namely the shortfall, belonged to Finn Kayaks.
36 The handout explained the concept of stealing and the concept of the amount of a general deficiency:
A person steals something when they take it or convert it to their own use, fraudulently. A person takes something fraudulently if he does so intending to permanently deprive the owner of it.
A person has not stolen something unless he has actually moved it or otherwise dealt with it by some physical act.
For the State to prove that what Mr Harwood stole was property amounting to a general deficiency, the State must prove:
(a) The number of life vests, that Mr Harwood had under his control, and for which he had a duty to account to Finn Kayaks Pty Ltd within the period alleged; and
(b) That within that period he failed to account for that number, either wholly or in part. This means that you will need to be satisfied of the number of life vests for which Mr Harwood failed to account - that is, the amount of the short-fall.
The law is that a person who is employed by another owes a duty to his employer to faithfully account for any property which comes under his control on behalf of or for the benefit of his employer.
37 Next, the handout dealt with the defence of honest claim of right:
If you are satisfied beyond reasonable doubt that the State has with respect to Mr Harwood proved each of these elements, there is another matter for you to consider and that is whether the State has satisfied you beyond reasonable doubt that Mr Harwood did not act in the exercise of an honest claim of right without an intention to defraud. You have a document in which that matter is explained.
In respect to this count, the claim of right relates to the belief of Mr Harwood that he was entitled to purchase some of the life vests in respect to which Finn Kayaks was indebted to Sea to Summit and then sell them.
38 The jury handout for counts 18 and 19 was, relevantly, identical to the handout for count 17 in respect of the elements of the offence of stealing. It was, of course, unnecessary for the handout in relation to counts 18 and 19 to deal with the concept of the amount of a general deficiency.
39 After dealing with the elements of the offence of stealing, the handout referred to the defence of honest claim of right:
If you are satisfied beyond reasonable doubt that the State has proved each of these elements, there is another matter for you to consider and that is whether the State has satisfied you beyond reasonable doubt that Mr Harwood did not act in the exercise of an honest claim of right without an intention to defraud. You have a document in which that matter is explained.
In respect to this count, the claim of right relates to the belief of Mr Harwood that he was entitled to sell the products to Mr Cooks having agreed with Mr Duke to take responsibility for the price payable to Finn Kayaks for those products.
40 The jury handout for counts 20 - 32 inclusive and 36 - 45 inclusive stated that, for the State to prove the count against each accused whose case the jury was considering the State must prove beyond reasonable doubt, relevantly, the following elements:
2. That at the time of the alleged offence, that accused was employed by Finn Kayaks Pty Ltd.
3. That the accused stole money.
A person steals something when they take it fraudulently or they convert it to their own use fraudulently. A person takes something or converts something to their own use fraudulently if they do so with an intent to permanently deprive the owner of it.
In the case of money, if the person does so intending to use it at his/her will, although he/she may intend afterwards to repay it. To use money at your will is to use money as your own.
A person has not stolen something unless that person has actually moved it [or] otherwise dealt with it by some physical act.
4. That the money belonged to Finn Kayaks Pty Ltd.
To this end the State must satisfy you beyond reasonable doubt that Finn Kayaks Pty Ltd was entitled to all of the monies from the sale of product received from the operation of the Ocean Paddler business.
If you are satisfied beyond reasonable doubt that the State has proved each of these elements, there is another matter for you to consider and that is whether the State has satisfied you beyond reasonable doubt that that accused did not act in the exercise of an honest claim of right without an intention to defraud. You have a document in which that matter is explained.
In respect to this count, the claim of right relates to the belief of that accused that he/she was entitled to use at his/her will the monies received from the sale of product from the operation at the Ocean Paddler business.
42 The jury handout on the defence of honest claim of right read:
The law is that a person is not criminally responsible for an offence relating to property for an act done with respect to any property in the exercise of an honest claim of right and without intention to defraud. Like all issues the onus on this issue is on the State.
There is no onus on an accused person to prove he/she acted in the exercise of an honest claim of right.
The burden lies on the State to satisfy you beyond reasonable doubt that that accused did not act in the exercise of an honest claim of right and without intention to defraud.
Ignorance of the criminal law is no defence to a charge. However if a person honestly believes that they have the right to do an act in relation to property that person is not responsible for an act done with respect to that property in the exercise of that honest claim of right and without intention to defraud.
The claim has to be honest, but it does not have to be reasonable. So if a person honestly believes that the person has the right to do the act then the person is not liable for the act even if the honest claim of right is unreasonably held.
The claim of right must be one that if correct would entitle the person to do the act.
The act must be done without an intention to defraud. This means it must be done in the exercise of an honest claim and the act must have been done honestly in the exercise of that honest claim.
Honesty is to be determined by you according to the standards of ordinary, decent people. (original emphasis)
43 Each of the jury handouts stated that the handout was not a substitute for the trial judge's oral directions, but was a document intended to assist the jury in its understanding of those directions.
44 The oral directions given by his Honour in his summing up were consistent with the matters stated in each of the handouts.
No relevant request for a redirection or an additional direction
45 The experienced defence counsel who appeared for Mr Harwood and Mrs Harwood at the trial did not request the trial judge to give the jury a redirection or an additional direction in relation to the defence of honest claim of right.
46 In particular, neither of the defence counsel requested his Honour to direct the jury to the effect that a person can have an honest belief with respect to property even if dishonest means were used to access the property, being the essence of the complaint now made on behalf of each of Mr Harwood and Mrs Harwood in the ground of appeal.
47 The trial judge did not make a 'wrong decision on a question of law', within s 30(3)(b) of the Criminal Appeals Act 2004 (WA), by failing to give a direction that was not sought by defence counsel at the trial. It is therefore necessary for Mr Harwood and Mrs Harwood to establish that the absence of the direction occasioned a 'miscarriage of justice', within s 30(3)(c) of the Criminal Appeals Act.
The merits of the grounds of appeal
48 A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).
49 In the present case, there is no merit in counsel for the appellants' argument that a miscarriage of justice occurred at the trial because of the trial judge's omission to direct the jury that a person can have an honest belief with respect to property even if dishonest means were used to access the property. I am of that opinion for two reasons. Each reason is sufficient to require that the appeals be dismissed.
50 First, the material issues of fact in dispute at the trial were those I have recounted at [24] - [29] above. The critical matters, for present purposes, concerned whether Mr Harwood had any right, title or interest in the property the subject of counts 17, 18 and 19 and whether he had any entitlement to the moneys the subject of counts 20 to 32 inclusive and 36 to 45 inclusive. It was not part of the State's case or the appellants' cases at the trial that Mr Harwood or Mrs Harwood had used any 'dishonest means to access' any of the property or moneys in question, at or before the time when the offences were allegedly committed, apart from the alleged fraudulent taking or the alleged fraudulent conversion by intending permanently to deprive the owner (on the State's case, Finn Kayaks) of the property or moneys. In particular, neither the State nor the appellants asserted that Mr Harwood or Mrs Harwood had used any 'dishonest means of access' in connection with the alleged acts of taking of the property or moneys or the alleged acts of conversion of the property or moneys to his or her own use, fraudulently, by intending permanently to deprive the owner (on the State's case, Finn Kayaks) of the property or moneys.
51 This point was highlighted at the hearing of the appeals when the court asked counsel for the appellants to identify the dishonest means which the jury might have concluded were used by Mr Harwood or Mrs Harwood to access the relevant property or moneys (appeal ts 4, 7 - 8). The dishonest means of access were not identified in counsel for the appellants' written submissions. Counsel was unable to identify at the hearing any dishonest means which the jury might have concluded were used by Mr Harwood or Mrs Harwood to access any of the property or moneys in question, at or before the time when the offences were allegedly committed, apart from the alleged acts of fraudulent taking or the alleged acts of fraudulent conversion by intending permanently to deprive the owner (on the State's case, Finn Kayaks) of the property or moneys.
52 If the trial judge had given the direction now contended for on behalf of the appellants there would have been a real (as distinct from a fanciful) risk that the direction may have operated to their material disadvantage. The appellants' cases at the trial relied, to a significant extent, upon the jury concluding, on the basis of Mr Harwood's evidence, that it was reasonably possible that there had been agreements between Mr Duke and Mr Harwood of the kind alleged by Mr Harwood and that it was reasonably possible that Mr Harwood was the owner of the Ocean Paddler business. In the circumstances, any reference by his Honour to the possible use by Mr Harwood or Mrs Harwood of dishonest means to access any of the relevant property or moneys would have had the potential to undermine the appellants' cases, because that issue was not part of the State's case or the appellants' cases, and the trial record did not reveal any dishonest means used to access that property or those moneys, at or before the time when the offences were allegedly committed, apart from the alleged acts of fraudulent taking or the alleged acts of fraudulent conversion by intending permanently to deprive the owner (on the State's case, Finn Kayaks) of the property or moneys. It is of significance that the experienced defence counsel who appeared for Mr Harwood and Mrs Harwood at the trial did not request his Honour to direct the jury in the manner now contended for on appeal.
53 The present case is to be contrasted with such cases as Roberts and Hunter where there was cogent evidence that the accused had used dishonest means to access the property or money to which the accused alleged that she or he had an honest claim of right. The dishonest means in Roberts involved the accused forging cheques and uttering those cheques. The dishonest means in Hunter involved the accused substituting his personal bank accounts details, as the place for payment, in invoices sent on behalf of his employer to its customers.
54 Secondly, the instructions given by the trial judge in the jury handouts (and reiterated by his Honour in his summing up) required the jury to conclude that the State had proved beyond reasonable doubt each of the elements of counts 17, 18, 19, 20 to 32 inclusive and 36 to 45 inclusive before the jury turned its attention to the defence of honest claim of right.
55 The elements of each of those counts which the State had to prove beyond reasonable doubt included, relevantly, that Mr Harwood or Mrs Harwood (as the case may be) had stolen the property or moneys in question by taking the property or moneys or converting the property or moneys to his or her own use, fraudulently, by intending permanently to deprive the owner (Finn Kayaks) of the property or moneys.
56 The jury, by its verdicts of guilty on the relevant counts, must have been satisfied that the State had proved that element beyond reasonable doubt. The proof of that element was necessarily inconsistent with the existence of a reasonable possibility that Mr Harwood or Mrs Harwood (as the case may be) had an honest claim of right to the property or moneys.
Conclusion
57 The appeals should be dismissed.
58 MAZZA JA: These are appeals against conviction.
59 The appellants, at all material times, were a married couple and charged together on an indictment in the District Court with 44 counts (the counts on the indictment are numbered 1 to 45, but count 16 was omitted) alleging various acts of dishonesty, some of which were said to have been committed jointly; and the remainder by Graeme Harwood alone.
60 On 14 January 2015, after a trial spanning approximately five sitting weeks, the jury delivered guilty verdicts as follows.1
61 As against Mr Harwood:
(a) five counts of fraud, contrary to s 409(1)(a), s 409(1)(c) or s 409(1)(d) of the Criminal Code 1913 (WA), being counts 1, 13, 14, 15 and 35;
(b) one count of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (count 34);
(c) 28 counts of stealing as a servant, contrary to s 378(7) of the Criminal Code (counts 2, 17, 18, 19, 20 to 33 inclusive, and 36 to 45 inclusive).
62 As against Dawn Harwood, 24 counts of stealing as a servant (counts 20 to 33 inclusive, and counts 36 to 45 inclusive).
63 On 2 April 2015, Mr Harwood was sentenced to a total effective sentence of 5 years 6 months' imprisonment with parole eligibility and Ms Harwood was sentenced to a total effective sentence of 2 years 6 months' imprisonment with parole eligibility.
64 Not all of the convictions are the subject of appeal. In Mr Harwood's case, his appeal relates only to his convictions on counts 17 to 19, 20 to 32 and 36 to 45 inclusive. All of these are counts of stealing as a servant. In Ms Harwood's case, her appeal relates only to her convictions on counts 20 to 32 and 36 to 45 inclusive.
65 The most serious individual offence for which the appellants were convicted, count 33 - which involved the theft of a general deficiency of some $211,988.81 (ts 3620) - is not the subject of appeal.
66 Each of the appellants relies on what is in substance an identical ground of appeal for which leave to appeal has been granted. As amended at the hearing of the appeal (appeal ts 3), it is alleged that there was a miscarriage of justice by reason of the learned trial judge's 'failure' to direct the jury that a person can have an honest belief with respect to property even if dishonest means were used to access the property.
67 For the reasons which follow, the alleged miscarriage of justice has not been made out and each appeal must be dismissed.
Background
68 In order to deal with this appeal, it is unnecessary to refer to all of the evidence. The salient facts and circumstances are these.
69 At all relevant times, Alwyn Duke was the managing director and sole shareholder of Finn Kayaks Pty Ltd (Finn Kayaks). The company's primary business was the manufacture of moulded plastic kayaks at its factory in O'Connor (ts 3672). In general, Finn Kayaks did not sell its products directly to the public preferring to wholesale them, along with kayaking accessories, to retailers. However, Finn Kayaks did operate a small retail shop selling kayaks and accessories at its factory and, according to the State's case, from around mid-2010, at a shop on Canning Highway in Palmyra (ts 3673). At trial, this shop was referred to as the Palmyra shop or Ocean Paddler. For the sake of consistency, I will refer to it as Ocean Paddler.
70 Mr Harwood had extensive experience in the outdoor leisure industry and had worked as a business development manager for the Ranger Camping group. He also operated a consultancy business called Harwood Strategic Management Services. In either December 2007 or January 2008, Mr Harwood ceased employment with the Ranger Camping group. On 20 January 2008, Mr Duke, on behalf of Finn Kayaks, retained Mr Harwood as, in effect, the business development manager (ts 2297, 3672). His duties included attracting new business and dealing with retailers. Mr Harwood's retainer was renewed when it expired in April 2008 and thereafter until his position was terminated in March 2011 (ts 563). In or about mid-2008, Mr Harwood was given the role of operations manager. Mr Harwood had access to the master key to all Finn Kayaks' premises and to its EFTPOS machines. It is clear that Mr Duke gave Mr Harwood a significant degree of autonomy and trust. As Mr Duke put it, by June 2010 Mr Harwood 'was in control of my business … mostly' (ts 646). Around this time, for various personal reasons, Mr Duke was not completely focused on the day-to-day management of his business.
71 In April 2009, Dawn Harwood was employed by Finn Kayaks on a part-time basis (ts 3672). The State described her duties as that of a bookkeeper (ts 369, 3684), although she was given the title of accounts administrator. Those duties were undertaken at the O'Connor premises. Ms Harwood had access to and entered data into Finn Kayaks' MYOB accounting software at those premises. She also had access to the key to the business's floor safe (ts 375, 3684). Ms Harwood was not authorised to make payments on behalf of Finn Kayaks. Payments could only be authorised by Mr Duke or his wife, Andrea Acalinovich (ts 375).
72 According to Mr Duke, Mr Harwood discussed with him 'on lots of occasions' (ts 563) the possibility of having a financial interest in Finn Kayaks. Mr Duke testified that he told Mr Harwood that he did not want a partner and that Mr Harwood 'fully understood' this (ts 563).
73 As I mentioned, in mid-2010, Ocean Paddler opened. Mr Duke testified that Mr Harwood suggested the idea of setting up a 'pop up' shop in premises on Canning Highway, Palmyra, which were vacant and marked for demolition (ts 645). Mr Duke said, in effect, that he acquiesced to the suggestion. Mr Duke said that he regarded the shop as temporary and 'unlikely to last through to Christmas' (ts 656). Mr Duke testified that he helped with the fit-out of the shop and its signage. Mr Duke testified that he signed an application form presented to him by Ms Harwood for a dedicated EFTPOS machine for the shop which, unbeknown to him, directed payments, not to Finn Kayaks' bank account, but to a Bankwest account ending in the numerals 838 and styled in the name of ‘Graeme Harwood trading as Ocean Paddler’. Dawn Harwood was also a signatory to this account.
74 The ownership of the business, Ocean Paddler, was disputed at trial and was a key factual issue for the jury to determine (ts 3528 - 3530). The State's case was that Ocean Paddler was Finn Kayaks'. Mr Harwood claimed the business was his.
75 According to the State, Mr Harwood was not the proprietor of Ocean Paddler and he had no right to the income derived by the business or to deal with its stock, other than as authorised by Mr Duke. The State alleged that the appellants engaged in a joint criminal enterprise in their capacities as servants of Finn Kayaks to steal from it kayaks, accessories and money (ts 373, 377). The State's case was that Ms Harwood aided in the commission of the offences. The State alleged that Ms Harwood:
(a) concealed from Mr Duke, and failed to inform him of, her husband's offending;
(b) played an important role in obtaining the dedicated EFTPOS machine for Ocean Paddler by falsely informing the relevant bank that the machine was for Finn Kayaks and by procuring Mr Duke's signature on the application form without telling him that payments would not be directed to Finn Kayaks.
76 It was accepted that, if the State's case against Mr Harwood failed, so did the case against Ms Harwood.
77 The appellants testified in their defence.
78 Mr Harwood said that he and Mr Duke agreed that he could sell on his own account the life vests the subject of count 17 and the products the subject of counts 18 and 19.
79 With respect to Ocean Paddler, Mr Harwood testified that he saw the vacant premises on Canning Highway, Palmyra, and approached the owner, a Mr Marchese, about their use as a retail shop. Mr Harwood said that he discussed opening a shop with Mr Duke. Mr Duke did not want to be involved. Mr Harwood testified that he told Mr Duke he intended to open a shop at the premises as his own business. According to Mr Harwood, Mr Duke voiced no objection. As a result, Mr Harwood opened and operated the shop. Mr Harwood said that he did so at the same time as he worked as a consultant for Finn Kayaks. He described Ocean Paddler as 'just another customer of Finn Kayaks' (ts 2385). He did not consider the businesses to be competitors. Mr Harwood claimed that the income derived from the business and its stock was his property.
80 Mr Harwood agreed that Ocean Paddler sold kayaks and equipment which were manufactured by, or acquired through, Finn Kayaks (ts 2344). Mr Harwood's case was that this stock was legitimately acquired from Finn Kayaks for value. In short, Mr Harwood denied that Finn Kayaks had any right or entitlement to any of the income or property of Ocean Paddler. As defence counsel put it in his opening address, '… make no mistake, we say that Ocean Paddler was [Mr Harwood's]' (ts 459).
81 Ms Harwood's case was that she had not been involved in the transactions the subjects of counts 20 to 33 and 36 to 45 or in Ocean Paddler. She said Ocean Paddler had a different MYOB accounting software to the one used at the O'Connor premises and she did not have access to it (ts 2800). She (as did Mr Harwood), in substance, denied the existence of any joint criminal enterprise.
82 There was no issue at trial that the appellants, at all relevant times, were servants of Finn Kayaks.
83 Neither appellant accepted that their conduct involved any deceit or dishonesty on their part. Neither expressly testified to the effect that, even if Mr Harwood did not own Ocean Paddler, they believed they had a right to the income derived by it or its property to use as their own.
84 According to Mr Harwood, the relationship between him and Mr Duke broke down when, in early 2011, lawyers he retained wrote to Mr Duke seeking payment of allegedly outstanding consultancy fees. Later, Mr Duke retained the services of a forensic accountant and then called the police. Counsel for Mr Harwood submitted that 'things get nasty' when there is a falling out over money (ts 459).
85 I will now turn to the relevant facts and circumstances of the offences for which the appellants were convicted.
Count 17 - stealing life vests as a servant - the amount of the general deficiency
86 This charge alleged that between 23 February 2010 and 19 October 2011, Mr Harwood, being the servant of Finn Kayaks, stole life vests the property of the company and being the amount of a general deficiency (ts 3467).
87 The State’s case was that Mr Harwood, without Mr Duke's knowledge, purchased 929 life vests from a business called Sea to Summit for approximately $37,000 (ts 3470). On 24 February 2010, the life vests were delivered to Finn Kayaks (ts 455). Mr Duke told Mr Harwood that he did not want the vests and that they were to be returned (ts 3471). Mr Duke contacted an employee of Sea to Summit and told him that the life vests would be returned. However, Mr Harwood later told another Sea to Summit employee, Mr Jenour, to ignore Mr Duke's statement (ts 3471). In due course, and at Mr Harwood's direction but without Mr Duke's consent, the life vests were delivered to the Ocean Paddler store (ts 3472).
88 A subsequent stocktake conducted on behalf of Finn Kayaks revealed 572 missing life vests (ts 3471). On 7 October 2011, the police discovered, during the execution of a search warrant at Ocean Paddler, some 377 life vests in a sea container at the shop (ts 3472). More life vests were also traced to the Getaway Outdoors store in Joondalup (ts 446).
89 The State alleged that approximately 520 unaccounted life vests (or a lesser number) had been taken or converted by Mr Harwood for his own use, and that he had sold some of these life vests and retained the proceeds without the consent of Mr Duke or accounting for them to Finn Kayaks (ts 3468). Ultimately, by a special verdict, the jury found Mr Harwood stole 195 life vests (ts 3614).
90 In his evidence at trial, Mr Harwood admitted that he had ordered the life vests from Sea to Summit. He agreed that Mr Duke was not happy about the purchase (ts 2448 - 2449). Mr Harwood testified that he had a conversation with Mr Duke about the vests after Ocean Paddler opened (ts 3472). Mr Harwood said Mr Duke agreed to him purchasing the life vests that remained as stock in the Ocean Paddler business. Mr Harwood said that he paid $8,640 for 200 vests, and that he later paid $9,024.40 for another 250 vests (ts 3472). Mr Harwood testified that he further offset the liability he had to Finn Kayaks for the life vests by making a number of payments to Max Marketing, to whom Finn Kayaks was liable for promotional material in connection with the Avon Descent (ts 3472). Mr Harwood also acquired a further 55 to 60 vests for $2,700 (ts 3472).
91 Essentially, the defence case was that Mr Duke agreed to sell the life vests to Mr Harwood and that Mr Harwood paid money or gave value for them. Mr Duke denied he entered into any such agreement with Mr Harwood and maintained that at all times the life vests were the property of Finn Kayaks (ts 3473).
Counts 18 and 19 - allegations that Mr Harwood stole kayaks and accessories the property of Finn Kayaks
92 The State's case with respect to counts 18 and 19 concerned kayaks and accessories which were delivered to a business owned by Basil Cooks, known as Ranger Outdoors Mandurah. Mr Harwood knew Mr Cooks through his work with the Ranger Outdoors group. The State's case was succinctly described by the prosecutor in his opening address in these terms:
The State says that Mr Harwood took these kayaks and sundry items from Finn Kayaks or arranged for others to take them and have them delivered to Ranger Outdoors Mandurah for sale at Mandurah, intending that the payments from Mr Cooks be paid into Graeme Harwood's private account for his own benefit and then demanded Mr Cooks pay Mr Graeme Harwood as opposed to Finn Kayaks. And the State says that Finn Kayaks' records show that the statement of Mr Harwood to Mr Cooks that he had paid for this property himself was false (ts 450).
93 The evidence was that Mr Cooks was in some financial difficulty to the point where Finn Kayaks was not prepared to deal with his business, other than on a 'stop credit' or 'cash on delivery' basis (ts 447, 765, 3474). Kayaks and accessories were delivered to Ranger Outdoors in Mandurah on 23 April 2010 (count 18) and 21 May 2010 (count 19) on Mr Harwood's instructions, but without invoices and, according to the State, without Mr Duke's knowledge or consent (ts 446). Mr Duke testified that there was no record of these transactions in Finn Kayaks' books (766 - 767).
94 In due course, Mr Harwood demanded that Mr Cooks make payment for the kayaks into an account which, unbeknown to Mr Cooks (and Finn Kayaks), Mr Harwood controlled (ts 448). Mr Cooks was unable to make the payments, as a result of which Mr Harwood took legal proceedings against him (ts 449, 469).
95 The defence case was that Mr Harwood spoke to Mr Duke, and Mr Duke agreed for the kayaks and accessories to be sold to Ranger Outdoors Mandurah, saying 'Well, basically it's on you. If you want to help your mate and if you want to take on the responsibility of the debt, then that was perfectly fine' (ts 2418).
96 Mr Duke testified to the effect that there was no record on Finn Kayaks' books of kayaks and accessories being acquired by Mr Harwood and paid for by him or delivered to Ranger Outdoors Mandurah (ts 766 - 767). The State's case was that Mr Duke did not enter into the agreement described by Mr Harwood.
Counts 20 to 32
97 In each of these counts, the appellants were jointly charged that, on 13 separate occasions they, being servants of Finn Kayaks, stole a sum of money belonging to the company.
98 Jeffrey Harwood, Mr Harwood's younger brother, owned and operated a small business called Coral Bay Caravan and Camper Hire (ts 484). Jeffrey Harwood was offered the opportunity by his older brother to sell products made or distributed by Finn Kayaks. Jeffrey Harwood entered into an agreement with Finn Kayaks to sell these products on consignment (ts 485). The products and their accompanying invoices issued by Finn Kayaks were sent to his business in Coral Bay. Initially, Jeffrey Harwood paid those invoices into the Finn Kayaks account (ts 490 - 492).
99 However, after some time, he began to receive invoices issued from both Finn Kayaks and Ocean Paddler (ts 493). Jeffrey Harwood questioned this. He was told by his older brother to pay only the Ocean Paddler invoices and not the Finn Kayaks invoices (ts 493).
100 Each charge on the indictment concerned a separate payment made by Jeffrey Harwood to a bank account owned or under Mr Harwood's control, styled Fishyaks. The State's case was that this was done with Ms Harwood's knowledge and that she concealed the payments from Finn Kayaks. In essence, the State alleged that the appellant sold kayaks and equipment owned by Finn Kayaks to his brother and that, although the proceeds of sale belonged to Finn Kayaks, Mr Harwood retained them as his own.
101 The defence case was that Mr Harwood sold the products to his brother via Ocean Paddler and, as owner of the business, he had a right to the money that was paid for the kayaks and accessories sent to his brother. Ms Harwood's case was that she had no knowledge of the transactions the subject of counts 20 to 32 and did not aid in their commission.
Counts 36 to 45
102 In each of counts 36 to 45, the appellants were jointly charged that on 10 separate occasions they, being the servants of Finn Kayaks, stole a sum of money belonging to the company. Finn Kayaks dealt with a business known as Ranger Camping Joondalup which, in 2010, changed its name to Getaway Outdoors. This business was owned and operated by Geoffrey Rayner (ts 383, 1366).
103 The State's case was that Mr Rayner sold, through Getaway Outdoors, kayaks and accessories from Finn Kayaks. In about August 2010, one of Getaway Outdoors' competitors began discounting their kayak prices. As a result, Mr Rayner sought from Mr Harwood, on behalf of Finn Kayaks, a 'cheaper price' for its products (ts 1370). Mr Harwood agreed to the proposal and accordingly, Mr Rayner ordered Finn Kayaks’ products. In due course, kayaks and accessories were delivered, initially without an invoice. When an invoice was requested, it was issued on behalf of Ocean Paddler (ts 1371). According to the State, Mr Rayner made ten payments for the Finn Kayaks' products that were sent to him (ts 1380). In accordance with the invoices that had been issued to him, these payments were made to the Ocean Paddler account ending in the numbers 838 (ts 1380). No invoices for the stock sent to Ranger Outdoors Joondalup were found in Finn Kayaks' records. The State's case was that the appellant had no entitlement to these payments and that the moneys belonged to Finn Kayaks.
104 Mr Harwood's case was that he spoke to Mr Duke about Mr Rayner's proposal for a special price (ts 2519). Mr Harwood's testimony was to the effect that Mr Duke was not prepared to deal with Mr Rayner's business other than COD. Mr Harwood said that he would deal with Mr Rayner through Ocean Paddler and that is what occurred with Mr Duke's consent (ts 2519). Mr Duke denied any such arrangement or agreement. Again, Ms Harwood's case was that she had nothing to do with the transactions the subject of counts 36 to 45 and did not assist in their commission.
Factual issues for determination at trial
105 Relevant to the charges the subject of this appeal, the material factual issues for the jury were, with respect to Mr Harwood:
(a) In relation to count 17, had the State proved beyond reasonable doubt that there was no agreement between Mr Duke and Mr Harwood for Mr Harwood to purchase the life vests?
(b) In relation to counts 18 and 19, had the State proved beyond reasonable doubt that there was no agreement between Mr Duke and Mr Harwood, on the terms alleged by Mr Harwood, for Mr Harwood to sell kayaks and accessories belonging to Finn Kayaks to Mr Cooks on behalf of Ranger Outdoors Mandurah?
(c) In relation to counts 20 to 32 and 36 to 45, had the State proved beyond reasonable doubt that Mr Harwood had no entitlement to moneys received for products sold to the businesses operated by Jeffrey Harwood and Mr Rayner? Central to this question was whether the State had proved beyond reasonable doubt that Mr Harwood was not the owner of the Ocean Paddler business.
106 With respect to Ms Harwood, the material factual issue was, if Mr Harwood was guilty of counts 20 to 32 and 36 to 45, had the State proved beyond reasonable doubt that she was engaged in a joint criminal enterprise with her husband in relation to those counts?
107 Neither Mr nor Ms Harwood's trial counsel expressly referred to any alleged honest claim of right in their opening or closing addresses. The subject of s 22 of the Criminal Code was raised by the prosecutor with the learned trial judge during submissions as to the content of the summing up. It is unnecessary to set out what was said in those discussions. In the end, his Honour decided to direct the jury on honest claim of right pursuant to s 22 of the Criminal Code. Defence counsel acquiesced in that course.
The directions on honest claim of right
108 His Honour's summing up was necessarily lengthy and detailed. In order to assist the jury, his Honour provided it with a number of written handouts.
109 His Honour's principal oral direction regarding honest claim of right was given in respect of count 17. He prefaced the direction by informing the jury that he would 'abridge it later on with [the] other counts' (ts 3470). His direction was in these terms:
The law is that:
A person is not criminally responsible for an offence relating to property for an act done with respect to any property in the exercise of an honest claim of right and without intention to defraud.
Like all issues, the onus on this issue is on the State. There is no onus on an accused person to prove that he or she acted in the exercise of an honest claim of right. The burden lies on the State to satisfy you beyond reasonable doubt that Mr Harwood did not act in the exercise of an honest claim of right and without intention to defraud.
And to that end, the honest claim of right has to be a legal claim. It can't be a moral claim. It needs to be the exercise of a claim of right that is a legal claim of right and it needs to be honest and without intention to defraud.
As I say, ignorance of the criminal law is no defence to a charge. However, if a person honestly believes that they have the right to do an act in relation to property, that person is not responsible for an act done with respect to that property in the exercise of that honest claim of right and without intention to defraud.
A claim has to be honest but it does not have to be reasonable. So if a person honestly believes that the person has the right; that is, the legal right to do the act, then the person is not liable for the act even if the honest claim of right is unreasonably held.
The claim of right must be one that, if correct, would entitle the person to do the act. The act must be done without an intention to defraud. This means that it must be done in the exercise of an honest claim and the act must have been done honestly in the exercise of that honest claim. Honesty, as I've said before, is to be determined by you according to the standards of ordinary, decent people (ts 3470).
110 His Honour directed the jury as to honest claim of right on counts 18 and 19, 20 to 32 and 36 to 45 (ts 3434, 3473, 3476, 3497, 3542 - 3543, 3568 - 3569). It is unnecessary to reproduce those directions.
111 The written handouts provided to the jury reflected his Honour's oral directions.
112 No exception was taken to any of his Honour's directions on the subject of honest claim of right by either of Mr or Ms Harwood's experienced trial counsel.
Legislation
113 Section 371 of the Criminal Code provides that a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property. A person who takes or converts property is deemed to do so fraudulently if he does so with any of the intents set out in s 371(2)(a) to s371(2)(f). In this case, the relevant intent alleged by the State was 'an intent to permanently deprive the owner of the … property …': s 371(2)(a).
114 Section 378 of the Criminal Code sets out the penalty for stealing. If an offender is a clerk or servant and the thing stolen was the property of his employer or it came into the possession of the offender on account of his employer, he is liable to a higher penalty.
115 Section 22 of the Criminal Code provides:
Ignorance of law, honest claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
116 In Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 115, Gibbs CJ described the operation of s 371(2) and s 22 of the Criminal Code in these terms:
The law as enacted by this section [s 371(2)] is free from some of the complexities of the common law. Stealing, as defined, includes both fraudulent taking and fraudulent conversion. A taking or conversion is deemed to be fraudulent when done with one of the intentions described in pars (a) - (f) of s 371(2). No further state of mind is necessary. Of course there is no criminal responsibility for a taking or conversion effected in the exercise of an honest claim of right and without intent to defraud (Criminal Code (WA), s 22).
Honest claim of right - the law
117 It is sufficient for the purposes of this appeal to state the following propositions of law in connection with s 22 of the Criminal Code.
118 Once the defence is raised on the evidence, it is for the prosecution to negative it beyond reasonable doubt. To come within s 22, the claim of right must be as to entitlement 'in or with respect to property': Walden v Hensler [1987] HCA 54; (1987) 165 CLR 561, 593 (Dawson J). The claim need only be honest. It does not have to be reasonable, nor does it have to be one recognised in law: Walden v Hensler 568 - 569 (Brennan J); R v Jeffrey [2002] QCA 429; (2002) 136 A Crim R 7[23] (Jerrard JA), although the reasonableness or otherwise of the claim may inform an assessment as to whether an accused has an honest claim of right: Hunter v The State of Western Australia [2014] WASCA 184 [46] (McLure P).
119 The claim of right must be one that, if correct, would legally entitle the person to do to the property that which he or she did: R v Waine [2006] 1 Qd R 458; (2006) 157 A Crim R 490 [25] (Keane JA). The requirement in s 22 that the act or omission must be done without an intention to defraud simply means that it must be done honestly. Whether a claim is honest is to be determined according to the standards of ordinary, decent people.
120 Where an intention to defraud is an element of the charge, there is no scope for the operation of s 22. However, an honest claim of right can negate an intention to defraud and thus may be relevant to such offences. See Hunter [46] (McLure P), [114] (Mazza JA) (a case of attempted fraud (s 409(1)(c) and s 552 Criminal Code) and fraud (s 409(1)(c) Criminal Code)); Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445 [140] (McLure J) (a case of forging and uttering (s 473 Criminal Code)). In R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28, the Court of Appeal of South Australia arrived at the same conclusion in the context of an offence of forging an instrument to obtain money contrary to s 234 of the Criminal Law Consolidation Act 1935 (SA), an offence which contains the element of intent to defraud.
121 In these cases, it was held that a person can have an honest claim of right in or with respect to property even if dishonest means were used to access the property: Hunter [39] (McLure P); Roberts [140] (McLure J) and Kastratovic 65 (King J), 80 (White J). It may be accepted that this principle holds good to the application of s 22 of the Criminal Code.
122 Of course, the use of dishonest means will, in many (if not most) cases, as a matter of fact, prove dishonesty as to any claim of right. However, there will be cases where this is not necessarily so. Roberts, Hunter and Kastratovic are examples of this.
123 In Roberts, the appellant was charged with numerous offences of forging and uttering cheques. The appellant had signed her husband's name on the cheques and altered the amounts payable. She subsequently presented the cheques for payment. She denied she had done so with an intent to defraud. Her case was that her husband had authorised and consented to these acts. Further, she testified that she had drawn the cheques to pay for household and other living expenses that she needed to meet in order to maintain the standard of living her husband required.
124 In Hunter, the appellant was retained by a company that sold point-of-sale electronic equipment to supermarkets. On two occasions, the appellant altered invoices issued in the name of the company by inserting his own bank account details, with the intention of having the customer pay the amount to him and not the company. The appellant accepted that what he did was deceitful, but claimed that he did so because the company owed him commissions and it would not pay him what he was owed, thus he had no intent to defraud.
125 In Kastratovic, the appellant transferred to a company some mineral leases that he owned. As consideration for the transfer, the appellant was credited with $500,000 in a loan account in the books of the company. The appellant claimed C (a director and shareholder in the company) personally undertook to repay the $500,000 to him. Solicitors acting on behalf of the appellant sent a notice of demand to C seeking payment of $500,000, based on a document entitled 'To matter of guarantee'. The document was purportedly signed by C. In fact, the signature was forged, but there was no evidence that the appellant was the forger. The appellant's case was to the effect that he had a genuine belief that C was indebted to him personally and had no intent to defraud.
126 Cases such as Roberts, Hunter and Kastratovic are factually unusual. In these cases, the appellants asserted an honest claim to property (that is, a claim inconsistent with an intention to defraud), and sought, or arguably sought, to obtain the property by plainly deceitful means (forged documents). In such cases, a jury, having determined that there was such deceit, may, without an appropriate direction, fail to consider the possibility that, nevertheless, the offender had an honest claim to the property. It may therefore be necessary for a trial judge to give appropriate directions to ensure that the jury does not embark upon an erroneous path of reasoning, namely, that the use of such dishonest means necessarily negatives an honest claim to the property. It may also be necessary to ensure that, in an offence involving the element of intention to defraud, the jury does not conflate the elements of dishonest or deceitful means and intention to defraud.
The appellants' submissions to this court
127 The appellants' submissions in support of the ground of appeal were identical. They were expressed in their respective appellant's cases in these terms:
On the facts of the appellant's case, there was a compelling need for a direction that reflected the ground of appeal (namely, that a person can have an honest belief with respect to property even if dishonest means were used to access the property) because, as set out above, the State case relied heavily upon dishonest means both used and adopted by the appellant to obtain money and/or property in relation to which Mr Harwood raised an honest claim of right (Mr Harwood's AB 11; Ms Harwood's AB 10).
128 The dishonest means referred to in the written submissions were, in substance, no more than a summary of the State's case against the appellants.
129 The appellants do not contend that the directions actually given by the learned trial judge were incorrect. Each submits that the learned trial judge was required to go further than he did and give the direction now sought in order to avoid a perceptible risk of a miscarriage of justice.
Disposition of the ground of appeal
130 The overriding obligation of a trial judge is to ensure that there is a fair trial and to avoid a perceptible risk of a miscarriage of justice. In the context of a summing up, so far as the law is concerned, what is required is for a trial judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466 and RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]. Of course, in some cases, it is necessary to warn the jury about how not to reason: RPS [41].
131 The factual issues which were the focus of the trial related to the existence of the agreements between Mr Duke and Mr Harwood, referred to at [105] - [107] of these reasons, and the ownership of Ocean Paddler.
132 The cases put by the parties were very stark. The State's case was that no agreements had been made and that Ocean Paddler was Finn Kayaks' business. The defence case was to positively assert that the agreements had, indeed, been made and that Ocean Paddler was Mr Harwood's business. The appellants' cases were that they had acted honestly. They denied acting deceitfully.
133 Given the stark nature of the parties' cases, it is difficult to conceive how, in these circumstances, there was any evidence to support an honest claim of right. Thus, it may be said that it was fortunate for the appellants that the learned trial judge left to the jury a defence under s 22 of the Criminal Code. Nevertheless, he did and I will assume that his Honour was correct to do so.
134 In my opinion, his Honour's directions were, in the circumstances of the present case, adequate and did not give rise to a miscarriage of justice. Specifically, his Honour was not obliged to give the direction that the appellants allege should have been given. I have reached this conclusion for the following reasons.
135 First, his Honour's direction about honest claim of right was in orthodox and correct terms. It concentrated, appropriately, upon the honesty of the appellants' claim to the property the subject of the charge.
136 Second, it was not suggested that the appellants had an honest claim of right to access the property of the subject charge, but used dishonest or deceitful means to do so. To the contrary, the appellants' cases at trial were that they had acted honestly and had obtained the property the subject of the charges with the agreement of Mr Duke or because Mr Harwood was the owner of Ocean Paddler. The direction the appellants now contend for ran the risk of undermining their cases by suggesting that they may have acted dishonestly or deceitfully.
137 Third, the present case has nothing in common with the facts of the cases such as Hunter, Roberts and Kastratovic. As I have already observed, those cases were factually unusual and the present case was not of that type. The appellants' counsel, in oral argument, had difficulty identifying the deceitful conduct which required the learned trial judge to give the direction now contended for. Counsel eventually submitted that the appellants' failure to account to Finn Kayaks for the money that was received for the sale of Finn Kayaks' products necessitated such a direction (appeal ts 9). This submission cannot be accepted. If the failure to account was a dishonest act, it occurred after the property had been obtained and had no connection with the obtaining of the property the subject of the charge. Further, a failure to account is not of the same quality and nature as the deceitful means used in such cases as Hunter, Roberts and Kastratovic.
138 Finally, it is relevant that, after a lengthy trial, the appellants' experienced trial counsel, immersed in its atmosphere and intricacies, did not apparently perceive that the direction now sought was necessary. In this regard, it cannot be overlooked that his Honour engaged in extensive discussions with counsel before his summing up about the directions he proposed to give, and that neither defence counsel sought the kind of direction now contended for.
Conclusion
139 I have not been persuaded that his Honour was required to give the direction the appellants claim should have been given, or that the absence of such a direction gave rise to a perceptible risk of a miscarriage of justice. The ground of appeal has not been made out and the appeals must be dismissed.
140 CORBOY J: I agree with Buss and Mazza JJA.
1 The appellants were acquitted of various charges.
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