McRae v Dansey-Ayling
[2019] ACTMC 29
•15 August 2019
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
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.
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.
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.
At the hearing, the defence’s primary submission was that the evidence did not establish beyond reasonable doubt that the defendant was the user of the card for the transactions which are the subject of the charges. I refer to this as the identification argument. The second arm of the defence related to the description in the charge of the property said to have been obtained. I deal first with the identification argument.
The identification argument
I heard evidence on the voir dire from Senior Constable Badman. Senior Constable Badman had an unrelated interaction with the defendant on 9 March 2018 – that is, approximately three weeks after the commission of the offences with which the defendant has been charged. Following this interaction, a lookout notice was circulated within the AFP in connection with these offences. The lookout notice contained still images captured from CCTV footage which form part of Exhibit P10. Senior Constable Badman identified the defendant on the basis of these still images. The question of admissibility of this opinion evidence of Senior Constable Badman to the effect that the person shown in the still images was the defendant was resolved by the admission of the photograph he took at the time of his interaction with the defendant in March 2018. That photograph is marked Exhibit P11.
It is not in contest that Exhibit P11 depicts the image of the defendant as she appeared at that time in March 2018. I am able to compare that image with what is shown in the CCTV footage and the still images captured which form part of the lookout notice.
The CCTV footage is not very clear. Despite that, I can and do conclude that the person depicted in the footage in relation to all three transactions is the same person. That conclusion is in part aided by what can be seen of the clothing worn on the occasion of each transaction.
My conclusion upon comparison with the photograph marked as Exhibit P11 is that the person shown on the CCTV bears a strong resemblance to the image of the defendant in the photograph. However, if that was the extent of the evidence, I could not conclude beyond reasonable doubt that the defendant is the person depicted in the CCTV footage.
That evidence, however, is not the only evidence on which the prosecution relies.
There is unchallenged evidence that the defendant was at the time of the alleged offences in a relationship with a Mr Byron Hancock. Mr Hancock gave evidence. The still images attached to the lookout notice included images of Mr Hancock taken from CCTV footage of other unlawful transactions using cards also stolen from Ms Geissler, used in the same vicinity and at about the same time as the transactions the subject of the current charges. Mr Hancock can be easily identified in the still images.
Mr Hancock was charged with offences of obtaining property by deception relating to those unlawful transactions. He pleaded guilty to those offences and has been sentenced. The statement of facts and a pre-sentence report tendered for sentencing purposes are in evidence before me as Exhibits P12 and P13 respectively. The statement of facts refers to the defendant as a co-offender, although she is charged with what are separate offences.
Mr Hancock says that he has no memory of committing the offences referred to in the statement of facts. He attributes this lack of memory to his use of ice at the time. He said that he did not know whether the defendant was with him at the time of committing the offences. As I understood his testimony, Mr Hancock had entered pleas of not guilty to other charges in the past where he could not remember what had occurred, but that on those occasions either DNA or fingerprint evidence had been admitted which resulted in him being found guilty. He said that influenced him to plead guilty on the latest occasion despite what he said was his lack of memory. In addition, there would have been, of course, also the persuasive evidence of the CCTV footage from which the still images were taken which formed part of the lookout notice.
The prosecution says that the acceptance by Mr Hancock of the statement of facts on which he was sentenced is evidence of acceptance by him that the defendant is properly described as a co-accused – that is, that the conduct alleged in the statement of facts against her is correctly described in it.
No objection was raised to the admission of the statement of facts or the pre-sentence report. The admission of that evidence requires consideration of the interaction of several sections of the Evidence Act2011 (ACT), including ss 65 and 83. Some of the complexities involved in the use of admissions by one co-accused against another are the subject of comments in Australian Law Reform Commission Reports 26 and 102.
In the circumstances before me, however, I am not persuaded that any ruling on admissibility is necessary. I say that for two reasons. The first is that it is unrealistic to treat Mr Hancock’s agreement to a statement of facts for sentencing purposes as constituting an admission by him contrary to the interests of the defendant. He and the defendant were charged with separate offences. Realistically, what is said in the statement of facts about the separate offending by the defendant was of no concern to Mr Hancock in his sentencing. To infer that his conduct amounted to an admission against the interests of the defendant in those circumstances is simply drawing too long a bow.
The second reason is due to what Mr Hancock said in his testimony about the basis upon which he pleaded guilty. He says that he was using methylamphetamine extensively and has no recollection of the offending. There is no basis to question his plea of guilt, but again, in the circumstances, there is no basis for attaching any weight to what is said in the statement of facts about the defendant.
For the reasons given, I disregard the contents of the statement of facts and pre-sentence report insofar as they are said to amount to, or contain admissions contrary to, the interests of the defendant.
Certain aspects of the statement of facts do, however, comprise other very persuasive circumstantial evidence. In particular:
(a)evidence that Mr Hancock was present at the same place and at about the same time that the transactions the subject of the present charges took place; and
(b)evidence that the unlawful transactions undertaken by Mr Hancock used the same stolen cards which were used for the transactions the subject of the present charges.
What supplements that evidence is the unchallenged testimony of Mr Hancock about his relationship with the defendant at the time the offences were committed, and what I have concluded is the strong resemblance between the image of the defendant shown in the photograph comprising Exhibit P11 and the person shown in the CCTV footage.
The combined effect of that evidence satisfies me beyond reasonable doubt that it was the defendant who undertook each of the transactions which are the subject of the charges before the Court.
The property argument
I turn to consider the second of the defence’s arguments.
As noted at the outset of these reasons, the defendant is charged with two counts of obtaining property by deception and one count of attempting to obtain property by deception. In each case, the offence is charged as obtaining an amount of money – $95.95 – belonging to the cardholder, Ms Geissler. Again, as noted earlier, the defendant had allegedly used the bank cards to buy gift cards at a Woolworths supermarket and a post office.
The defence argument is that whatever might have been obtained, it was not an amount of $95.95 belonging to the cardholder. I was referred to several authorities which draw the distinction between notions of property and a chose in action. They are not useful for present purposes other than to confirm that the starting point for analysis is this – absent other considerations, an ordinary credit card transaction involving the acquisition of goods or services does not, as a matter of legal principle, result in the user of the card obtaining an amount equal to the cost of the goods or services: see R v Hawcroft [2009] ACTSC 145, citing R v Capewell [1995] 2 Qd R 64 and R v Rigney-Hopkins [2005] QCA 275.
The Code applies to the offences charged. In the circumstances, the application of the Code renders the authorities referred to above of limited utility.
At the outset, I comment that the prosecution submissions have been framed in terms of an argument about the particulars of the charge. I accept that the starting point of the analysis in this case is what is particularised in the charges as the property alleged to have been deceptively obtained. The issue, however, is really one about what is required by way of evidence to satisfy any statutory requirements permitting the subject of the charge to be expressed as the monetary value of the transactions.
Some provisions of the Code give expanded meaning to “obtains” and “property”. I refer particularly to ss 301 and 328, which provide as follows:
301 Person to whom property belongs for ch 3
(1)Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).
(2)This section is subject to section 330 (Money transfers).
NoteSection 305 (Person to whom property belongs for pt 3.2) affects the meaning of belongs.
328 Meaning of obtains for div 3.3.2
(1)For this division, and for the application of section 313 (Receiving) to this division, a person “obtains property if—
(a) the person obtains ownership, possession or control of it for the person or someone else; or
(b) the person enables ownership, possession or control of it to be retained by the person or someone else; or
(c) the person induces a third person to pass ownership, possession or control of it to someone else; or
(d) the person induces a third person to enable someone else to retain ownership, possession or control of it; or
(e) section 330(2) or (3) (Money transfers) applies.
(2)The definition of obtain in section 300 does not apply to this division, or for the application of section 313 (Receiving) to this division.
Section 330 of the Code is also relevant for present purposes. It provides as follows:
330 Money transfers
(1)This section applies for this division and for the application of section 313 (Receiving) to this division
(2)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by A—
(a) the amount is taken to have been property that belonged to B; and
(b) A is taken to have obtained the property for A with the intention of permanently depriving B of the property.
(3)If a person (A) causes an amount to be transferred from an account held by someone else (B) to an account held by a third person (C)—
(a) the amount is taken to have been property that belonged to B; and
(b) A is taken to have obtained the property for C with the intention of permanently depriving B of the property.
(4)An amount is transferred from an account (account 1) to another account (account 2) if—
(a) a credit is made to account 2; and
(b) a debit is made to account 1; and
(c) the credit results from the debit or the debit results from the credit.
(5)A person causes an amount to be transferred from an account if the person induces someone else to transfer the amount from the account (whether or not the other person is the account holder).
The prosecution submits that s 301 of the Code is relevant. I do not agree. The cardholder does not have possession, control or any proprietary right or interest in the amounts which represent the value of the fraudulent transactions.
The prosecution also submits that s 328 is relevant. That section expands the meaning of the concept of obtaining. My conclusion is that the only relevant part of it is sub-s (1)(e) which, in turn, refers to s 330(2) and (3), relating to money transfers.
Section 330(3) is, in effect, a deeming provision. If a defendant causes an amount to be transferred as provided for in the section, the amount transferred is taken to be property that belonged to, in this case, the cardholder, and the defendant is taken to have obtained that property.
The defendant is also taken to have obtained that property with the intent to permanently deprive the relevant person of it, but this additional aspect of the deeming is not relevant for the purposes of a charge under s 326 of the Code.
The effect of the application of s 330(3) would be that the defendant is taken to have obtained the relevant sum of money representing the value of the actual items obtained (and any administration fee). On its face, that would be a complete answer to the argument raised by the defence.
At first glance, the difficulty for the prosecution in the present case lies with s 330(4) as set out above. There is no direct evidence before me of any credit to the account of the merchant, beyond what might be inferred from the evidence of the use of the card at the merchant’s business and the issue of a receipt by the merchant.
The prosecution submissions have, however, drawn to my attention the decision of her Honour Penfold J in R v Potts (No 4) [2016] ACTSC 370 (“Potts”). I asked for and received additional written submissions about the evidence which was before her Honour in Potts because of the similarities between that case and what is to be decided by me.
In Potts, Penfold J dealt with a no case submission at the close of the prosecution case. The charges before her Honour which are relevant for present purposes were three charges of obtaining property by deception.
It is reasonably clear from her Honour’s reasons that the Crown case relied upon the expanded meaning given to “obtains” in 328 and the deeming provisions of s 330(4).
It appears that the evidence before her Honour in Potts was not materially different to what is before me. There was evidence of debits to the account of the complainant, but there does not appear to have been any direct evidence before her Honour of any corresponding credit having been made to the account of the relevant merchant.
In Potts, her Honour concluded at [44] that:
(a)the evidence that, as a result of the accused’s use of the card concerned, the salesperson was willing to hand over the goods that the accused sought to acquire; and
(b)the evidence that transactions were recorded by the bank concerned as having taken place at the relevant times;
would permit the jury to infer that funds had been, or would shortly be, transferred from the account held by “someone else” to an account directly or indirectly connected with a third party, that is, the person conducting the business.
As has been pointed out by Ms Priestly for the defendant, her Honour’s conclusions were necessarily limited to what she had before her by way of a no case submission. I accept that to be the case, but the distinction is not material for present purposes.
The defence submission, as I understand it, is that in the absence of direct evidence of a credit to the account of the merchant, the pre-conditions to the deeming under s 330(4) upon which the prosecution relies are not met and the obtaining of property is not proved. In other words, it is, as I understand the submission, that satisfaction of the pre-condition about a corresponding credit to the merchants’ accounts cannot be proved by circumstantial evidence of the kind before me. (As I have already observed the kind of evidence before me is not materially different to that before her Honour in Potts).
Consistently with my understanding of the submission, no cross examination of any witness took place about whether any credit entry was made in the merchants’ accounts or about banking processes generally for card transactions, and there is no submission pointing to an alternate hypothesis.
If satisfaction of the pre-condition about the credit entry to the merchants’ accounts is capable of being proved inferentially then circumstantial evidence exists to enable the Court to draw that conclusion.
In those circumstances, the conclusion of Penfold J in Potts does deal directly with the question to be determined by me.
The other basis upon which Ms Priestly sought to distinguish Potts is her Honour’s observation that counsel for Mr Potts had offered no authority nor argument based upon statutory interpretation for the proposition that express evidence is required of certain particulars for the offence.
I accept that to be the case, but, whilst Ms Priestley’s submissions are rational and persuasive, no relevant authority or rule of statutory interpretation is quoted to support them either.
I place on record that, were it not for her Honour’s decision in Potts, I would have accepted the defence submissions and concluded that satisfaction of the pre-conditions in s 330(4) required direct evidence.
I am, however, bound by her Honour’s decision in Potts, and accepting the defence submissions would require me to reach a different conclusion to her Honour on the approach to be taken to s 330(4) as a matter of legal principle. To do so would offend the principle of stare decisis.
My conclusion therefore is that the pre-conditions in s 330(4) are capable of being proved by circumstantial evidence.
It is necessary at this point to distinguish between the attempt charge (CC 10583 of 2018) and the other two charges (CC 10582 of 2018 and CC 10584 of 2018).
The circumstantial evidence in this case is the use of the card by the defendant at the relevant times, the evidence of the debit entries to the cardholders account and, for charges 10582 and 10584 of 2018, the evidence of the delivery to the defendant of the gift cards and the issue of receipts by the merchant.
Before moving on, I set out the view I take in relation to the inferences available from the evidence of the issue of the receipts.
Ordinary experience indicates that at the point of an electronic transaction using a card some check is made as to what I will describe as the validity of the card used. Most people will have had the experience of having had a card declined. There are many possible explanations for that experience, including that a spending limit has been exceeded, that a card expiry date has passed or that there is some fault with the card itself or the machine used to process the transaction. That experience indicates that there is some immediate electronic check or enquiry about the card at the point of use. However, it does not necessarily follow that the relevant transfer of funds from the cardholder (via any intermediary) to the merchant is immediate.
Similarly, it is common knowledge that card accounts sometimes show a debit entry to “pay for” a transaction on a date later than that on which the transaction took place.
Against that background I do not treat the evidence of the issue of a receipt by the merchants as constituting, of itself, direct evidence that any amount was credited to the merchant’s account.
Despite that conclusion, I am satisfied beyond reasonable doubt in relation to charges 10582 and 10584 of 2018 that the evidence when viewed as a whole establishes that the relevant credits were, or to adopt her Honour’s language in Potts, would shortly be, made to the accounts of the merchants for the purposes of s 330(4) of the Code.
It follows that I am satisfied beyond reasonable doubt that the defendant did by deception dishonestly obtain the property alleged in charges 10582 and 10584 of 2018.
The attempt charge – 10583 of 2018 – must be approached differently.
I infer that the debit and then immediately following credit entry in paragraph 12 of Exhibit P1 relate to that transaction.
There is no clear evidence about the reason for the transaction which is the subject of the attempt charge not to have proceeded. Whatever the reason, as a matter of logic, it seems unlikely that any credit entry was ever made into the account of the merchant for that transaction. The reasoning is simply this – if the credit entry was made, such that the merchant had been paid, why did the transaction not proceed?
The elements of the attempt offence require the prosecution to prove beyond reasonable doubt that the defendant attempted to deceptively obtain the property the subject of the charge. The prosecution has relied upon the deeming provisions in s 330 to establish that the relevant property is the amount taken from the cardholder’s account by virtue of the attempted transaction.
Given that the transaction the subject of charge 10583 of 2018 did not proceed I cannot be satisfied beyond reasonable doubt that any credit entry was ever made in the merchant’s account. The issue is not whether any credit entry would have been made if the transaction had proceeded but rather whether the pre-conditions to the deeming provisions in s 330 are met (or indeed can ever be met) when a transaction does not proceed. If those pre-conditions are not met the prosecution has not established that the property the subject of the charge is properly described as the amount of the attempted transaction.
In the circumstances the prosecution has not proved that the defendant attempted to obtain the property the subject of the charge.
The prosecution, in written submissions, made an application to amend the charges, if necessary.
The amendment sought by the prosecution was to particularise the property deceptively obtained (or attempted to be deceptively obtained) as “$95.95 belonging to another”.
There are difficulties, as a matter of principle, in dealing with an amendment application in such circumstances, including considerations of procedural fairness. Even putting those considerations aside, the application to amend must be refused. Against the background of the reasoning in this decision the amendment sought still leaves the prosecution relying upon the deeming provisions of s 330 and would make no difference to the outcome.
The end result is that:
(a)in relation to charges CC 10582 and 10584 of 2018, I find the offences proved and the defendant guilty of those charges; and
(b)in relation to charge CC 10583 of 2018, I find the defendant not guilty and that information is dismissed.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate P J Morrison Associate: Angus Brown Date: 15 August 2019 |
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