Kingdon v The State of Western Australia
[2012] WASCA 74
•28 MARCH 2012
KINGDON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 74 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:25/2011 | 9 DECEMBER 2011 | |
| Coram: | MARTIN CJ PULLIN JA MAZZA JA | 28/03/12 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TAMMY CHERIE KINGDON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Stealing Trustee transferred funds from trust bank accounts to her personal account and applied the funds to her personal use Argued that bank credits as a chose in action did not fall within the meaning of 'money' for the purposes of the Criminal Code Money construed in accordance with its common usage so as to include proprietary interests arising from the deposit of funds at a bank Criminal Code (WA), s 371 |
Legislation: | Companies (Western Australia) Code Crimes Act 1900 (ACT) Crimes Act 1900 (NSW), s 178A Criminal Code (WA), s 371, s 373, s 375, s 378 |
Case References: | Associated Alloys Pty Ltd v ACN 001452106 Pty Ltd (in liq) [2000] HCA 25; 202 CLR 588 Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326 Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110 In re Collings; Jones v Collings [1933] Ch 920 Lean as liquidator of Trison Aust Pty Ltd (in liq) v Commissioners of the Rural & Industries Bank Ltd (1991) 5 ACSR 455 Orsi v Legal Contribution Trust [1976] WAR 74 Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 Parsons v The Queen [1999] HCA 1; (1999) 195 CLR 619 Perrin v Morgan [1943] AC 399 R v Hawcroft [2009] ACTSC 145 R v Hunt (1996) 88 A Crim R 307 Re Price [1905] 2 Ch 55 Re Taylor [1923] 1 Ch 99 Saunders v Vautier (1841) 4 Beav 115; (1841) 49 ER 282 Sawiris v Scott [1978] WAR 39 Slattery v The King [1905] HCA 66; (1905) 2 CLR 546 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KINGDON -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 74 CORAM : MARTIN CJ
- PULLIN JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WISBEY J
Citation : THE STATE OF WESTERN AUSTRALIA v KINGDON
File No : IND 1127 of 2010
(Page 2)
Catchwords:
Criminal law - Stealing - Trustee transferred funds from trust bank accounts to her personal account and applied the funds to her personal use - Argued that bank credits as a chose in action did not fall within the meaning of 'money' for the purposes of the Criminal Code - Money construed in accordance with its common usage so as to include proprietary interests arising from the deposit of funds at a bank - Criminal Code (WA), s 371
Legislation:
Companies (Western Australia) Code
Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW), s 178A
Criminal Code (WA), s 371, s 373, s 375, s 378
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr R M Mitchell SC & Ms S Linton
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Associated Alloys Pty Ltd v ACN 001452106 Pty Ltd (in liq) [2000] HCA 25; 202 CLR 588
Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326
Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110
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In re Collings; Jones v Collings [1933] Ch 920
Lean as liquidator of Trison Aust Pty Ltd (in liq) v Commissioners of the Rural & Industries Bank Ltd (1991) 5 ACSR 455
Orsi v Legal Contribution Trust [1976] WAR 74
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Parsons v The Queen [1999] HCA 1; (1999) 195 CLR 619
Perrin v Morgan [1943] AC 399
R v Hawcroft [2009] ACTSC 145
R v Hunt (1996) 88 A Crim R 307
Re Price [1905] 2 Ch 55
Re Taylor [1923] 1 Ch 99
Saunders v Vautier (1841) 4 Beav 115; (1841) 49 ER 282
Sawiris v Scott [1979] WAR 39
Slattery v The King [1905] HCA 66; (1905) 2 CLR 546
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- MARTIN CJ:
Summary
1 The appellant, Ms Tammy Kingdon, appeals from her conviction after trial by jury in the District Court of Western Australia on four counts of stealing and one count of engaging in a transaction involving money that was the proceeds of stealing. Two principal lines of argument have been advanced on her behalf. The first line of argument focuses upon the fact that the stealing was said to have been effected by transferring funds standing to her credit in bank accounts held by her on trust for others into bank accounts in her name alone. It is contended that the appellant's actions in transferring the funds from one bank account to another were incapable of constituting the offence of stealing, or alternatively, were incapable of constituting the offence of stealing with which the appellant was charged, because the bank credits with which she dealt were not 'money', but choses in action, with the further consequence that the appellant could not have been guilty of engaging in a transaction that involved stolen money. Allied to this line of argument is the contention that the trial judge misdirected the jury by relying on a provision of the Criminal Code (WA) which only applies to 'money' and which does not, it is said, apply to the bank credits with which Ms Kingdon dealt. The second line of argument is to the effect that there was insufficient evidence to enable the jury to conclude beyond reasonable doubt that the appellant fraudulently converted the funds to her own use. For the reasons which follow, both lines of argument should be rejected and the appeal dismissed.
The facts
2 The parties to the appeal accept that the evidence adduced at trial was capable of satisfying the jury beyond reasonable doubt of the following facts.
3 At all material times, Ms Kingdon was the partner of Mr Troy Mercanti. Mr Mercanti was a member of the Coffin Cheaters Motorcycle Club until February 2008.
4 In 1998, Mr Mark Chabriere, who was also a member of the Coffin Cheaters, died leaving a wife, son and daughter. His daughter, Chantal Chabriere was born on 6 April 1988. After Mr Chabriere's death, money was collected at several of the Coffin Cheaters' clubhouses for the benefit of his family.
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5 In May 2000, Mr Richard Vickers, a close personal friend of Mr Mercanti, died leaving a former wife and their daughter, Claire Vickers. She was born on 23 February 1989. Funds were collected at various Coffin Cheaters' clubhouses for the benefit of his daughter. Following her father's death, Claire Vickers attended a meeting with her mother and various members of the Coffin Cheaters, including Mr Mercanti, at which the creation of a trust fund for her benefit was discussed.
6 On 26 November 2001, Ms Kingdon opened two Commonwealth Bank cash management accounts. One was styled 'Tammy Cherie Kingdon in trust for Chantal Chabriere' (the Chabriere cash account) and the other was styled 'Tammy Cherie Kingdon in trust for Claire Vickers' (the Vickers cash account). On 29 November 2001, $12,114.82 was deposited into the Chabriere cash account and $15,650.25 was deposited into the Vickers cash account. At trial it was admitted on behalf of Ms Kingdon that she held all of the funds in each account on trust for each of the girls respectively.
7 On 17 October 2006, Ms Kingdon opened two Commonwealth Bank term deposit accounts. One account was styled 'Tammy Cherie Kingdon in trust for Chantal Chabriere' (the Chabriere term deposit), and the other was styled 'Tammy Cherie Kingdon in trust for Claire Vickers' (the Vickers term deposit). On the same day, $24,010 was withdrawn from the Chabriere cash account, and deposited into the Chabriere term deposit account, and $21,068 was withdrawn from the Vickers cash account and deposited into the Vickers term deposit account. Following those transactions, some funds still remained in each of the Chabriere cash account and the Vickers cash account.
8 As I have noted, in February 2008, Mr Mercanti ceased to be a member of the Coffin Cheaters.
9 On 8 July 2008, Ms Kingdon entered into a contract to purchase land situated at 4 Olney Court, Balga for $335,000. On 14 August 2008, Ms Kingdon withdrew $2,148.21 from the Chabriere cash account and deposited the same amount into another account at the Commonwealth Bank styled 'Tammy Cherie Kingdon' (the Kingdon account). The effect of the deposit was to mix funds which had been held by Ms Kingdon on trust for Ms Chabriere with Ms Kingdon's personal funds. This transaction was the subject of count 1 on the indictment which alleged that:
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- On 14 August 2008 at Perth Tammy Cherie Kingdon stole $2,148.21 the property of Chantal Chabriere and others.
10 Also on 14 August 2008, the appellant withdrew $3,023.44 from the Vickers cash account and deposited the same amount into the Kingdon account. This transaction was the subject of count 2 on the indictment which alleged that:
On 14 August 2008 at Perth Tammy Cherie Kingdon stole $3,023.44 the property of Claire Louise Vickers.
11 On 15 August 2008, Ms Kingdon withdrew $25,867.53 from the Chabriere term deposit account and deposited the same amount into the Kingdon account. This transaction is the subject of count 3 on the indictment which alleged that:
On 15 August 2008 at Perth Tammy Cherie Kingdon stole $25,867.53 the property of Chantal Chabriere.
12 Also on 15 August 2008, Ms Kingdon withdrew $22,660.53 from the Vickers term deposit account and deposited the same amount into the Kingdon account. This transaction is the subject of count 4 on the indictment which alleged that:
On 15 August 2008 at Perth Tammy Cherie Kingdon stole $22,660.53 the property of Claire Louise Vickers.
13 On 26 August 2008, the appellant withdrew $134,785.07 from the Kingdon account. The following day, 27 August 2008, she applied those funds to the settlement of the purchase of the property in Olney Court, Balga. That transaction was the subject of count 5 on the indictment, which alleged that:
On or about 27 August 2008 at Perth Tammy Cherie Kingdon engaged, directly or indirectly, in a transaction that involved money that was the proceeds of an offence, namely stealing.
14 Subsequent to Ms Kingdon's acquisition of the property in Olney Court, Balga, building works were carried out without the approval of the relevant local government.
15 By 8 October 2008, Mr Mercanti had become a nominee member of the Finks Motorcycle Club.
16 By 12 October 2008, the Finks Motorcycle Club had taken a lease of the property in Olney Court, Balga from Ms Kingdon, and thereafter used
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- the premises that had been constructed on the land as their clubhouse. The Finks paid rent to Ms Kingdon which was received and utilised by her for her own purposes.
17 By the time of the transactions the subject of the indictment, each of Chantal Chabriere and Claire Vickers had attained their majority. Each of their mothers, and Claire Vickers gave evidence that they had had no involvement with Ms Kingdon, or any discussions with her in relation to the application of the trust funds at any time. Chantal Chabriere did not give evidence. Ms Kingdon did not give evidence, nor was any other evidence led on her behalf.
The grounds of appeal
18 It is neither necessary nor desirable to set out the grounds of appeal, as some are elliptically expressed and obscure the arguments that have been advanced in their support. It is preferable to go directly to the two lines of argument advanced on behalf of Ms Kingdon, and to which I have referred (at [1] above). The first line of argument, raised by grounds 1, 2.1 and 3, concerns the proper characterisation of the property which Ms Kingdon was said to have stolen. The second line of argument, raised by ground 2.2, raises the question of whether there was evidence capable of satisfying a jury beyond reasonable doubt that Ms Kingdon fraudulently converted the property which was said to have been stolen for her own use.
The characterisation of the property stolen - grounds 1, 2.1 and 3
19 Grounds 1 and 2.1 advance the proposition that the evidence at trial was incapable of satisfying the jury that Ms Kingdon was guilty of the offences with which she had been charged because the evidence did not establish that she had stolen money, and the related proposition to the effect that the trial judge erred by directing the jury that there was evidence upon which they could find Ms Kingdon had stolen money. There is a short answer to these grounds. Ms Kingdon was not charged with stealing money. She was charged with stealing property having a certain value. This case is therefore distinguishable from R v Hawcroft [2009] ACTSC 145, in which it was held that, under the Crimes Act1900 (ACT), the withdrawal of funds from a bank account in which they had been deposited by a trustee on behalf of beneficiaries, and the application of those funds to the personal use of the trustee in breach of trust could only constitute the theft of a chose in action, and not the theft of money, which was the charge laid.
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20 In Western Australia, the offence of stealing is created by s 378 of the Criminal Code (WA) (Code). Ms Kingdon was charged with contravention of that section. The ambit of the offence created by s 378 of the Code is found in other provisions within ch XXXVI of the Code, including s 371 which defines the acts which constitute stealing by reference to the taking or fraudulent conversion of 'property'. Section 371(7) provides:
In this section, property includes any description of real and personal property, money, debts, bank credits, and legacies and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods and also includes not only such property as has been originally in the possession or in the control of any person but also any property in which or for which it has been converted or exchanged and anything acquired by the conversion or exchange, whether immediately or otherwise.
21 Section 371 avoids some of the arcane and unjustifiable limitations of the common law of larceny. The definition of 'property' in s 371(7) includes choses in action generally, and the chose in action created by a bank deposit specifically (Sawiris v Scott [1979] WAR 39), thereby overcoming the common law rule that the chose in action constituted by a deposit in a bank could not be the subject of larceny - see Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326, 330 - 331 (Barwick CJ); Parsons v The Queen [1999] HCA 1; (1999) 195 CLR 619, [15] - [22]; Slattery v The King [1905] HCA 66; (1905) 2 CLR 546, 554. Further, the inclusion of fraudulent conversion to the use of the converter or another, read with s 375 of the Code, overcomes the common law rule that a person lawfully in possession of property could not be guilty of larceny of that property - see Slattery; Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110, 119 (Gibbs CJ), 124 (Wilson and Dawson JJ), 135 (Brennan J). Accordingly, under s 371 of the Code, unlike at common law, a trustee can be convicted of stealing trust funds - see Orsi v Legal Contribution Trust [1976] WAR 74, 78 - 79 (Wickham J), cited with approval by the plurality in Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 518.
22 The terms of the indictment enabled the prosecution case to be put on the basis that Ms Kingdon had stolen the bank credits, in which Ms Chabriere and Ms Vickers had a beneficial proprietary interest, by fraudulently converting them to her own use. The case was put on this basis by the prosecution, and was understood to have been put on that basis by the trial judge when he rejected the submission put on behalf of Ms Kingdon to the effect that there was no case to answer. Although both
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- the prosecutor and the trial judge referred from time to time to 'the money' in the bank accounts, as will be seen, that description of the property represented by the bank accounts is entirely consistent with contemporary English usage, and could not have misled or confused the jury.
23 These brief observations are sufficient to dispose of grounds 1 and 2.1. However, ground 3 cannot be so shortly resolved. That ground asserts that the trial judge misdirected the jury by relying upon s 371(2)(f) of the Code, and directing the jury that they could be satisfied that Ms Kingdon fraudulently converted the property represented by the bank credits which she held on trust for Ms Chabriere and Ms Vickers even if she intended to subsequently repay that money to the beneficiaries (ts 212 - 213, 218).
24 Relevantly, s 371(2)(a) and (f) provide:
(2) 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;
…
(f) In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.
The term money includes bank notes, bank drafts, cheques, and any other orders, warrants, authorities, or requests for the payment of money.
(Page 10)
26 The word 'money' derives from the Roman word moneta, a term which was coined because the first Roman mint was attached to a temple built in the honour of the goddess Juno Moneta. Accordingly, the expression originally derives from the coinage, and later bank notes which were used as a medium of exchange. However, in contemporary English usage, the word 'money' has come to bear a much broader meaning than merely currency in the form of coins or bank notes. A number of examples of the broader usage of the word are provided by Viscount Simon LC in Perrin v Morgan [1943] AC 399 at 406 - 408, including the very common reference to persons having 'money at the bank', and the less contemporary usage attributed to St Paul when he wrote to Timothy, that 'the love of money is the root of all evil'. Other examples of the broader usage of the term jump readily to mind, including the common description of someone in parlous financial circumstances as having 'lost all their money', referring not only to currency, but to wealth generally. Consistently with this broad usage, in Perrin, the House of Lords concluded that a bequest in a will of 'all moneys of which I die possessed' extended to and included all the personal property of the testatrix.
27 Similar conclusions have been reached in other cases involving wills - see for example, In re Collings; Jones v Collings [1933] Ch 920, where it was held that a reference to 'money' included the property of the testatrix in a term deposit account at a bank (see also Re Taylor [1923] 1 Ch 99, 108; Re Price [1905] 2 Ch 55).
28 In a somewhat different context, in Lean as liquidator of Trison Aust Pty Ltd (in liq) v Commissioners of the Rural & Industries Bank Ltd (1991) 5 ACSR 455, 459 - 460, Murray J held that the interest in funds held on term deposit was 'money' for the purposes of s 384 and s 401 of the Companies (Western Australia) Code.
29 The question arose in the context of the criminal law in R v Hunt (1996) 88 A Crim R 307. In that case, charges were brought alleging contravention of s 178A of the Crimes Act 1900 (NSW) (Crimes Act), which created the offence of fraudulently misappropriating to one's own use 'money or valuable security or the proceeds thereof'. Although the terminology of s 178A is quite different to s 371 of the Code, its effect is similar. The Crimes Act defined 'money' to include 'all coined money whether current within New South Wales or not, and all bank notes or instruments ordinarily so called, if current as such, and payable to the bearer'.
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30 The accused was a solicitor who had been charged with misappropriating funds held in his trust account on behalf of a client. The misappropriations were said to have taken place in a number of different ways, including by the transfer of funds from the solicitor's trust account to his general account, from which funds were drawn for the solicitor's own purposes.
31 The New South Wales Court of Criminal Appeal dismissed the solicitor's appeal against conviction, concluding that the evidence established the fraudulent misappropriation of 'money' within the meaning of s 178A of the Crimes Act. In considering the proper meaning to be given to the term in that section, Smart J observed:
In general speech the sum of money entered in the books of the bank standing to the credit of a customer is described as money. Mainly, only lawyers and tax accountants speak or think of choses in action (317).
32 In Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, the accused was convicted on seven counts of stealing funds which had been donated for use in an election campaign and deposited into a bank account styled for that purpose, as a result of his withdrawal of the funds which he then used for his own purposes. The case was primarily concerned with the proper construction and effect of s 373 of the Code. Although that section refers to various forms of property, the only form of property capable of applying to the facts established by the evidence was that encompassed within the term 'money'. In that context, the plurality (Dawson, Toohey and McHugh JJ) observed:
In that regard the definition of money in s 1 is inclusive and extends to the form the money received takes when deposited in an account. The money received does not cease to be 'such money' in terms of s 373 simply because it has undergone a conversion. The adjective 'such' identifies the money to which the opening words of the section refer but it is not confined to the money in the form in which it is received. To give the word or the provision in general such a restricted meaning would have odd results. It would mean that if a person received only one cheque, though subject to a direction, and paid that cheque into an account, the withdrawal of the money which the cheque represented and its misappropriation would not constitute the offence of stealing. That is a conclusion which, in the language of the Code, is unacceptable (518 - 519).
33 Kirby J referred to the argument that the term 'money' in s 373 did not extend to include the chose in action created when funds were deposited with a bank. In that context, his Honour observed:
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- Such a construction of the Code would result in its having no application to a case such as the present. It would not be an immediately attractive construction. The Code from which the applicable provisions were derived was the Queensland Code drafted by Sir Samuel Griffith at a time when banking, although not developed to its present electronic and trans-national character, was well-established in Australia. The Code was clearly intended to operate in the real world where money and cheques are deposited in banks and in accounts which mingle the funds of many, converting them into depositors' choses in action against the bank, identified by electronic signals occasionally converted to hard copy statements. The intention of the Code to operate in a context of banking is shown, clearly enough, by the definition which the Code adopts of 'money'. Once it is accepted that 'money' includes 'cheques' it is rather unpersuasive to suggest that the 'direction' provided in s 373 of the Code is attached to the 'money' so long as it remains in the form of a 'cheque' but not once the 'cheque' follows the usual course which cheques habitually take and is deposited to the credit of the payee in a bank account (534).
34 Counsel for Ms Kingdon sought to distinguish these observations because the case was concerned with s 373 of the Code, rather than s 371. However, the essence of the passages which I have set out is focused upon the proper construction to be given to the term 'money' having regard to the inclusive definition provided by s 1 of the Code. Implicit in those observations is the view that, consistently with its express terms, the definition of 'money' in s 1 of the Code should not be regarded as exclusive or exhaustive. Further, the considerations which militated against the adoption of a narrow construction of the term 'money' in s 373 in Parker are equally apt to the construction to be given to the same word in s 371. A narrow construction of the word would produce what the plurality described as 'odd results'. To take the facts of Hunt, it would produce the result that a solicitor who misappropriated trust funds to his own use by transferring them from his trust account to his general account knowing that he lacked lawful authority to do so, and intending to use those funds for his own purposes, would not be guilty of stealing if he had an intention to repay the funds in due course. It would be inconsistent with the deliberate extension of the offence of stealing to which s 371 of the Code refers, beyond the limitations imposed by the common law of larceny, to construe the section so as to produce such an odd result.
35 The various authorities to which I have referred provide strong support for the conclusion that the term 'money', when used in s 371(2)(f) should be construed in accordance with its common usage so as to include the proprietary interests arising from the deposit of funds at a bank. Parker's case precludes acceptance of the submission that s 1 of the Code supports a contrary conclusion. However, it remains to deal with the
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- argument based upon s 371(7) which refers to both 'money' and 'bank credits', and which is therefore said to sustain the conclusion that the former expression does not include the latter, at least when the term 'money' is used in s 371.
36 That submission must be rejected as it is clear that the terms used in s 371(7) are not intended to be mutually exclusive. The section specifically refers to 'any description of real and personal property' and the various forms of personal property thereafter specified clearly come within that general description and are, to that extent, repetitive. Similarly, 'bank credits' give rise to a debt due from the bank to the customer and debt is another term expressly used in the section. Further, the section specifically refers to all instruments giving a right to recover or receive any money, and would therefore include a cheque. However, a cheque falls within the inclusive definition of 'money', and is therefore included within the scope of the section by at least two, and probably three, of the specific references to property within s 371(7).
37 For these reasons, the assertion that the different species of property to which reference is made in s 371(7) should be construed as mutually exclusive must be rejected. Accordingly, the section provides no support for the appellant's argument.
38 Reliance is also placed on the decision in Hawcroft. However, as I have noted, that decision must be distinguished because it concerns different statutory provisions and an indictment which specifically referred to 'money'. It also seems that none of the cases to which I have referred, and which support a broader construction of the term 'money' were referred to the court in that case or addressed in the reasons given.
39 For these reasons, the term 'money' in s 371(2)(f) should be construed as including the proprietary interests arising from the deposit of funds in a bank, and the trial judge did not err by relying on that provision for the purposes of his address to the jury.
40 Ground 3 must therefore be dismissed.
41 The conclusion that the term 'money' is appropriately used to describe the proprietary interests arising from the deposits in the four bank accounts, the subject of counts 1 to 4 also provides an additional and complete answer to grounds 1 and 2.1 of the appeal.
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Fraudulent conversion - ground 2.2
42 On behalf of Ms Kingdon, it is submitted that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence, because it was not reasonable for the jury to conclude that Ms Kingdon had fraudulently converted the bank credits to her own use.
43 For the purposes of s 371 of the Code, conversion is established by dealing with property in a manner which is inconsistent with the rights of its true owner - see Ilich, 117 (Gibbs CJ). Further, as I have noted, the element of fraud can be established by an intention to permanently deprive the owner of the property, or an intention to use the property to the will of the converter, notwithstanding an intention to repay the money derived from the conversion of the bank credits.
44 On behalf of Ms Kingdon it is submitted that the evidence did not enable the jury to exclude the reasonable hypothesis that Ms Kingdon was not dealing with the bank credits in a manner which was inconsistent with the rights of the beneficiaries, or that she intended to permanently deprive them of their interest in those bank credits, or intended to use the property in the bank credits for her own purposes. It is submitted that the evidence left open the hypothesis that Ms Kingdon was exercising her right as trustee to invest trust property in real estate on behalf of the beneficiaries. In this context, reliance is placed on the fact that there was no apparent attempt to disguise the trail of funds, and that at the time the misappropriations were said to have occurred, in August 2008, the Finks Motorcycle Club had not made its presence known in Western Australia, or leased the Balga property - those things not occurring until the first half of October 2008.
45 There was ample evidence to enable the jury to be satisfied beyond reasonable doubt that Ms Kingdon had dealt with the bank credits in a manner which was inconsistent with the rights of the beneficiaries and with an intention to permanently deprive the beneficiaries of those rights, or to use the bank credits for her own purposes. It is significant that Ms Kingdon had kept the funds which she held on trust for the beneficiaries quite separate from her own funds for almost seven years before the events giving rise to the offences. In that context, the steps which she took to intermingle the funds with her own (which is itself a breach of trust - see Associated Alloys Pty Ltd v ACN 001452106 Pty Ltd (in liq) [2000] HCA 25; 202 CLR 588, [34]), without any reference to the beneficiaries or their mothers is quite capable of sustaining an inference adverse to Ms Kingdon both with respect to her dealing with the property
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- in the bank credits in a manner which was inconsistent with the rights of the beneficiaries, and as to her intention at the time.
46 Further, the timing of the transfers giving rise to counts 1 to 4 on the indictment, occurring as they did between the time at which Ms Kingdon signed a contract for the purchase of the land in Balga, and shortly before she settled that purchase, is capable of sustaining a conclusion that the transfer of the funds from the trust accounts into her own account was undertaken for the purpose of using those funds for the purchase of the Balga property. In that context, no attempt was made to record or reflect any interest which the beneficiaries might have in the property purchased with the use of their funds, or to inform them of the purchase, and the rent received was treated by Ms Kingdon as her own. These facts are capable of sustaining an inference that Ms Kingdon was dealing with the bank credits in a manner which was inconsistent with the rights of the beneficiaries, and with the intention of permanently depriving them of their property, or with the intention of applying it to her own use.
47 It was also open to the jury to infer that these actions were taken by Ms Kingdon at the behest of Mr Mercanti for the purpose of assisting in the establishment of a physical presence for the Finks Motorcycle Club in Western Australia, given that they occurred shortly before that club commenced its operations in this State. The jury could readily have inferred that Mr Mercanti had commenced negotiations with the Finks Motorcycle Club prior to the manifestation of their physical presence in Western Australia. It was also open to the jury to draw an inference adverse to Ms Kingdon from the fact that the Finks Motorcycle Club was to operate in competition with the motorcycle club of which Mr Mercanti and Mr Chabriere had been members.
48 Prior to the transactions which gave rise to the charges against Ms Kingdon, each of the beneficiaries had attained their majority. They had a right to call for the trust funds and the winding up of the trust - see Saunders v Vautier (1841) 4 Beav 115; (1841) 49 ER 282. That right was readily capable of exercise while the funds remained on deposit at the bank. However, once the funds were intermingled with Ms Kingdon's personal funds and used in part payment of the purchase price of the Balga property, those rights were substantially compromised. In those circumstances it was well open to the jury to conclude that Ms Kingdon had dealt with the trust funds in a manner which was inconsistent with the rights of the beneficiaries and with the intention of permanently depriving them of those rights, or with the intention of applying the property to her own use.
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49 Ground 2.2 should be dismissed.
Conclusion
50 Leave to appeal has been granted with respect to ground 1. Leave to appeal in respect of grounds 2 and 3 was referred to the hearing of the appeal. Leave should be granted in respect of those grounds, but all grounds of appeal should be dismissed for the reasons I have given.
51 PULLIN JA: I agree with Martin CJ.
52 MAZZA JA: I agree with Martin CJ.
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