McRae v Dansey-Ayling

[2019] ACTMC 29

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McRae v Dansey-Ayling

Citation:

[2019] ACTMC 29

Hearing Date:

16 July 2019

DecisionDate:

15 August 2019

Before:

Magistrate Morrison

Decision:

See paragraph [66]

Catchwords:

CRIMINAL LAW – EVIDENCE – identification evidence – identification on basis of circumstantial evidence

CRIMINAL LAW – property offences – where defendant charged with two counts of obtaining property by deception and one count of attempting to obtain property by deception – property obtained through use of complainant’s bank card at merchants – where property particularised as a sum of money – application of s 330 of the Criminal Code 2002 (ACT) – whether explicit evidence of both a corresponding debit and credit required – R v Potts (No 4) [2016] ACTSC 370 – whether s 330 capable of supporting a charge of attempting to obtain property by deception

Legislation Cited:

Criminal Code 2002 (ACT) ss 44, 301, 326, 328, 330

Evidence Act 2011 (ACT) ss 65, 83

Cases Cited:

R v Capewell [1995] 2 Qd R 64

R v Hawcroft [2009] ACTSC 145

R v Potts (No 4) [2016] ACTSC 370

R v Rigney-Hopkins [2005] QCA 275

Texts Cited:

Australian Law Reform Commission, Evidence, Report No 26 (1985)

Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)

Parties:

G J McRae (Informant)

Cheyenne Dansey-Ayling (Defendant)

Representation:

Counsel

Ms C Muthurajah (Informant)

Ms E Priestly (Defendant)

Solicitors

ACT Office of the Director of Public Prosecutions (Informant)

McKenna Taylor Lawyers (Defendant)

File Numbers:

CC 10582 of 2018; CC 10583 of 2018; CC 10584 of 2018

MAGISTRATE MORRISON:

Introduction

1. The defendant faced hearing before me on 16 July 2019 in relation to two charges of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (“Code”) and one charge of attempting to obtain property by deception contrary to s 326 of the Code by virtue of s 44 of the Code.

1. The facts giving rise to these charges can be briefly stated. On 22 February 2018 at about 1:00 pm, the complainant, Ms Elisabeth Geissler, parked her car in the suburb of Cook in the Australian Capital Territory (ACT). Approximately two hours later, Ms Geissler returned to her car to discover that the driver’s side window had been smashed and that her handbag, which relevantly contained two bank cards issued by different financial institutions, was missing from the car.

1. The prosecution case was that between 1:36 pm and 2:33 pm that same day, the defendant used the two bank cards belonging to Ms Geissler to purchase, and to attempt to purchase, gift cards at a Woolworths supermarket and a post office in the suburb of Hawker in the ACT. The purchase and attempted purchase of these gift cards occurred in three separate transactions which form the basis of each charge. The total value of the transaction in each case, including administration fees, was $95.95.

1. At the hearing, the defence’s primary submission was that the evidence did not…