Pike v Regina - [2006] NSWCCA 32

No judgment structure available for this case.

CITATION: Pike v Regina [2006] NSWCCA 32

HEARING DATE(S): 13/02/2006

JUDGMENT DATE:
3 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Buddin J at 117

DECISION: Appeal against conviction on counts 7, 8, 9, 12, 13 and 14 allowed. Appeal against conviction on count 1 dismissed. Leave to appeal against the sentence on count 1 granted. Appeal against sentence on count 1 dismissed.

CATCHWORDS: CRIMINAL LAW – CONVICTION APPEAL - charges of dishonestly obtaining money by deception – whether verdicts are unreasonable and cannot be supported having regard to the evidence – whether trial judge erred in failing to grant an application by the appellant for an adjournment so as to secure the attendance of witnesses – whether the trial judge failed to correct a mistake in the Crown’s closing address – SENTENCE – whether sentencing judge had failed to take into account onerous bail conditions

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act

CASES CITED: MacKenzie v The Queen (1996) 190 CLR 348
RPS v The Queen (2000) 199 CLR 620
Weiss v The Queen [2005] HCA 81

PARTIES: Andrew Howard John PIKE v REGINA

FILE NUMBER(S): CCA 2005/1890

COUNSEL: In Person - Appellant
Dr P Power SC - Crown

SOLICITORS: -
Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0427

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

2005/1890

McCLELLAN CJ at CL
JAMES J
BUDDIN J
Friday 3 March 2006

Andrew Howard John PIKE v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Andrew Howard John Pike (“the appellant” or “Mr Pike”) appealed against his convictions, after a trial in the District Court before his Honour Judge McLoughlin and a jury, on seven charges of dishonestly obtaining money by deception. In the event of his appeal against conviction being dismissed, the appellant sought leave to appeal against the sentences imposed by Judge McLoughlin. Mr Pike was not legally represented and appeared for himself, both at the trial and on this appeal.

3 On 6 December 2004, being the date on which the trial commenced, Mr Pike made an application for an adjournment of the trial. This application was refused by Judge McLoughlin. Mr Pike was then arraigned on an indictment containing fourteen counts, to each of which he pleaded not guilty. Having regard to the grounds of appeal against conviction relied on by Mr Pike and the grounds on which I consider that the appeal against conviction should be determined, it is appropriate to set out in full the terms of the counts in the indictment against Mr Pike:-

“1. For that he on or about 9 November 1999 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he was a solicitor and that he would invest moneys advanced to him, dishonestly obtained for himself money namely an amount of $10,000 from Stuart Birk.

2. Further that on or about 9 November 1999 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he was a solicitor and that he would invest moneys advanced to him including short term local loans secured by goods, dishonestly obtained for himself money namely an amount of $150 from Stuart Birk.

3. Further that on 11 November 1999 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he could arrange for the reduction of his PAYE tax, dishonestly obtained for himself money namely in the amount of $600 from Stuart Birk.

5. Further that on 12 November 1999 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he would invest moneys advanced to him including loans to local people who would put up personal possessions for security, dishonestly obtained for himself money namely an amount of $900 from Stuart Birk.

6. Further that on 19 November 1999 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he was a solicitor and that a client of his needed $800 for bail and that a profit of $200 would be made in fourteen days, dishonestly obtained for himself money namely an amount of $800 from Stuart Birk.

8. Further that on or about 1 February 2000 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he would invest moneys advanced to him, dishonestly obtained for himself money namely an amount of $1000 from Stuart Birk.

9. Further that on or about 27 April 2000 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he would invest moneys advanced to him, dishonestly obtained for himself money namely an amount of $1000 from Stuart Birk.

10. Further, that on 4 May 2000 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he would acquire shares in an internet company for him, dishonestly obtained for himself money namely an amount of $387 from Stuart Birk.

11. Further that on 5 May 2000 at Bathurst in the State of New South Wales by deception, namely by falsely representing to Stuart Birk that he would set up and register a trustee company for him, dishonestly obtained for himself money namely an amount of $720 from Stuart Birk.

12. Further that between 28 January 2000 and 16 March 2000 at Daleys Point in the State of New South Wales by deception, namely by falsely representing to Lorna Birk that he would invest moneys advanced to him, dishonestly obtained for himself money namely an amount of $10,000 from Lorna Birk.

13. Further between 28 January 2000 and 16 March 2000 at Daleys Point in the State of New South Wales by deception, namely by falsely representing to Lorna Birk that he would invest moneys advanced to him, dishonestly obtained for himself money namely an amount of $30,000 from Lorna Birk.

4 There were, accordingly, two alleged victims of the offences charged, Mr Stuart Birk (counts 1-11) and Mrs Lorna Birk (counts 12-14). Mrs Lorna Birk is Mr Stuart Birk’s mother.

5 During the trial the jury, at the direction of the trial judge, returned verdicts of not guilty on each of counts 2, 4, 5 and 6. At the conclusion of the trial the jury returned verdicts of guilty on each of counts 1, 7, 8, 9, 12, 13 and 14 and verdicts of not guilty on each of counts 3, 10 and 11.

6 Judge McLoughlin imposed the following sentences for the offences of which Mr Pike had been found guilty:-

The offence charged in count 1 – imprisonment for fourteen months, with a non-parole period of seven months, to be served by way of periodic detention, commencing on 20 May 2005.

Offences charged in counts 7 and 8 – for each offence imprisonment for twelve months, with a non-parole period of six months, to be served by way of periodic detention, commencing on 20 August 2005.

Offence charged in count 9 – imprisonment for twelve months, with a non-parole period of six months, to be served by way of periodic detention, commencing on 20 September 2005.

Offence charged in count 12 – imprisonment for thirteen months, with a non-parole period of seven months, to be served by way of periodic detention, commencing on 20 September 2005.

Offence charged in count 13 – imprisonment for fourteen months, with a non-parole period of seven months, to be served by way of periodic detention, commencing on 20 October 2005.

7 All of the offences had been committed before 1 February 2003 and, accordingly, the appellant was sentenced in accordance with the previous, and not the current, s 44 of the Crimes (Sentencing Procedure) Act.

8 The total effect of the sentences was that the appellant was sentenced to terms of imprisonment totalling nineteen months, with non-parole periods totalling twelve months, the sentences to be served by way of periodic detention.

The Crown Case

9 The principal witnesses in the Crown case at the trial were Mr Birk and Mrs Birk. Mrs Birk in fact gave evidence before Mr Birk but I will first refer to Mr Birk’s evidence.

10 Mr Birk gave evidence that he first met the appellant in late 1999. The appellant told Mr Birk his name, that he was a barrister and that he was practicing from home because he had the custody of his two children. Mr Birk had “no reason not to” believe the appellant. The appellant told Mr Birk that he could invest money for Mr Birk and obtain a better rate of interest than Mr Birk was obtaining in an investment at a credit union.

11 Mr Birk made enquiries of the New South Wales Bar Association and found out that there was no one named Andrew Pike registered as a barrister but that there was an Andrew Pike registered with the Law Society as a solicitor.

12 When Mr Birk spoke to Mr Pike again, Mr Pike said that he was the Andrew Pike registered with the Law Society as a solicitor. In the presence of Mr Birk Mr Pike brought up on a computer screen a list of names of members of the Law Society and, when the name “Andrew Pike” appeared, the appellant said “there, this is me”. Alongside the name “Andrew Pike” on the screen was the name of the law firm Freehill Hollingdale and Page. After he had looked at the screen, Mr Birk said “Okay”. The appellant said that he was working from his home in a country town, because his children were attending a school in that area.

13 The appellant told Mr Birk that he could invest $10,000 for Mr Birk and obtain an interest rate of $35 per $1,000 per month for a period of ninety days.

14 After having been told by the appellant that he was a solicitor with Freehill Hollingdale and Page, Mr Birk telephoned the Law Society and then Freehill Hollingdale and Page. The receptionist at Freehill Hollingdale and Page confirmed that there was a solicitor named Andrew Pike working for Freehill Hollingdale and Page. Mr Birk declined an offer by the receptionist to be put through to the solicitor Andrew Pike who was working for Freehill Hollingdale and Page.

15 Mr Birk decided to provide the appellant with $10,000 to be invested for him. He said in evidence “I agreed to invest that sum of money with Andrew Pike, in the belief that he was a solicitor and he was going to invest the money for me”.

16 On 9 November 1999 Mr Birk signed a cheque for $10,000 drawn on his account at a credit union in favour of “Andrew Pike”. The appellant said to Mr Birk that “it would be better to cash this cheque today, so that we could lock in the interest rate today”.

17 The appellant and Mr Birk went to the premises of the credit union and cashed the cheque. They spoke to a female employee of the credit union, who was clearly a Ms Donna Reedy.

18 Because the amount of the cheque was $10,000, a significant cash transaction report had to be completed. On this return particulars of Mr Birk as the person conducting the transaction were entered. Under printed words on the form reading “Person 2 (if more than one customer at counter)” the name “Andrew Pike” was written, with the appellant’s address, and alongside the word “occupation” the word “solicitor” was written. Mr Birk said in evidence “I had introduced him (to Ms Reedy) as my solicitor. I cannot recall whether he stated he was a solicitor”.

19 After the cheque was cashed at the credit union, Mr Birk handed the $10,000 in cash to the appellant. This payment of $10,000 by Mr Birk to the appellant gave rise to count 1 in the indictment.

20 The appellant told Mr Birk that he could invest money in short term loans to local people on securities over goods at an interest rate of 20 per cent. Mr Birk provided $150 to the appellant for investment (count 2). Two weeks later the principal sum was repaid, together with interest at 20 per cent.

21 On 11 November 1999 Mr Birk had a further conversation with the appellant. The appellant said that he had “associates” who could arrange for a certificate to be provided to Mr Birk, which would result in a reduction in Mr Birk’s PAYE income tax. Mr Birk provided the appellant with a cheque for $600 as the cost of “having that done” (count 4). Mr Birk never subsequently received any document from anyone which would reduce his PAYE income tax.

22 On 12 November 1999 the appellant told Mr Birk that he could place the sum of $1900 on short term loans to local clients with securities over goods at an interest rate of 20 per cent. On 12 November 1999 Mr Birk provided the appellant with two cheques, one for $1,000 and one for $900 (counts 4 and 5).

23 In his evidence Mr Birk first said that he had been repaid the sum of $1900 with interest. However, a little later in his evidence he said that he would have to correct the evidence he had just given. He said that he had not received payment of either principal or interest. When Mr Birk asked to be paid, the appellant said that he had combined the principal sum of $1900 and the interest with other monies in a new “instrument of trust”, which he showed to Mr Birk.

24 On or about 19 November 2000 the appellant told Mr Birk that he had a client at Parramatta who had to raise $800 for bail and that the client would require the money for two weeks and that, if Mr Birk lent the money, he would receive interest at the rate of 20 per cent. Mr Birk provided $800 in cash to the appellant (count 6). The principal sum of $800 was repaid to Mr Birk together with interest.

25 On or about 21 November 1999 Mr Birk provided the appellant with a cheque for $5,000, the proceeds to be invested at interest by the appellant for Mr Birk (count 7). Mr Birk received two payments of interest in December 1999 and in January 2000 respectively but the principal sum of $5,000 was never repaid.

26 In December 1999 Mr Birk had a conversation with his mother Mrs Lorna Birk, in which he told his mother that he had invested money with the appellant and his mother suggested that she also might invest monies with the appellant. Mr Birk asked the appellant whether his mother could invest monies with the appellant and the appellant replied that that would be possible. Mr Birk received from his mother a cheque for $10,000 in favour of the appellant and handed the cheque to the appellant (count 12). At the time the cheque was handed over the appellant said that he would visit Mrs Birk and discuss the investment of her money with her.

27 In January 2000 Mr Birk received from the appellant a document described as an “instrument of trust”. The appellant said that some of the investments had performed better than the appellant had expected and the appellant had combined the principal sums of $10,000 and $5,000 into one consolidated fund.

28 In February 2000 Mr Birk provided $1,000 in cash to the appellant for investment by him (count 8).

29 In April 2000 Mr Birk provided a further sum of $1,000 in cash to the appellant for investment by him (count 9).

30 It can be inferred from Mr Birk’s evidence that the appellant did not repay either sum of $1,000.

31 In April and May 2000 the appellant told Mr Birk that the appellant had been engaged by an internet company to assist in the world wide launch of the company and that the appellant had been able to acquire a large number of shares in the company by allocation, prior to any offer of shares being made to the public. The appellant discussed with Mr Birk the acquisition of shares in the company and Mr Birk handed a cheque for $387 to the appellant (count 10). Mr Birk never received any shares in the company.

32 On 5 May 2000 the appellant and Mr Birk had a conversation in which Mr Birk said that he would like to set up a company to hold assets in trust for himself and his children and the appellant said that he could arrange for such a company to be registered but that it would cost $720. Mr Birk paid the appellant $720 (count 11).

33 In May 2000 Mr Birk became concerned about what was happening to his and his mother’s money. On 17 May 2000 Mr Birk delivered to the appellant letters from himself and his mother. In his letter Mr Birk said that he had a previously unanticipated need for funds for one of his children and he asked for the immediate return of all of the monies held by the appellant on behalf of Mr Birk. The appellant said that under the terms of the trust on which the monies were held, Mr Birk had to give a certain period of notice in order to withdraw funds and that, if funds were withdrawn on less notice, there would be certain costs and interest would be foregone. Mr Birk said “that is acceptable but we want our money. He (the appellant) indicated that he would attempt to get our money for us and return it to us”.

34 Mr Birk consulted a solicitor Mr Smith. Court proceedings were brought on behalf of Mr Birk and Mrs Birk. After the court proceedings were concluded, a sum of $3,000, but no further sum, was paid by the appellant to Mr Smith on behalf of his clients.

35 Mr Birk was cross-examined at considerable length by the appellant.

36 In cross-examination Mr Birk said that the appellant had told him that he had not maintained his registration as a barrister because the annual fees were too high but he had maintained his registration as a solicitor and could re-register himself as a barrister, if the need arose.

37 It was put to Mr Birk that on 9 November 1999 he had met a Mr Keith Sheehan at the appellant’s home but Mr Birk had no recollection of any such meeting.

38 During the cross-examination of Mr Birk the Crown prosecutor informed the court that he would not oppose the trial judge directing verdicts of not guilty on counts 2 and 6, because it was part of the Crown case that the monies provided by Mr Birk to the appellant had not been repaid and “in count 2 and count 6 it was repaid and therefore I would not be at the end of the Crown case saying that there should not be a verdict by direction”.

39 It was put to Mr Birk, and he denied, that on 8 November 1999, before providing any money to the appellant, he had conversations “by voice transmission in real time both pictures and sound” with unidentified persons in the United Kingdom and Canada about how monies provided for investment might be utilised.

40 During the cross-examination Mr Birk said, with reference to the sum of $5,000 provided in November 1999 that the appellant had said that he was going to invest it with Freehill Hollingdale and Page. Mr Birk had not given this evidence in his evidence in chief.

41 The following questions and answers occurred in cross-examination:-

…..

42 Mr Birk denied in cross-examination that he had not told his mother that the appellant was a barrister or solicitor until May 2000 and denied that he had merely told his mother that the appellant was an “investment adviser”.

43 Mrs Lorna Birk at the time of giving evidence at the trial was eighty-one years old. In the year 2000 she had been living in a retirement village.

44 As a result of a conversation with her son Mr Stuart Birk she had decided to invest money with the appellant. She gave her son a cheque for $10,000 in favour of the appellant to pass on to the appellant (count 12). At this stage she had never met or spoken to the appellant. All she understood was that the money would be “invested” by the appellant.

45 Mrs Birk telephoned the appellant in January 2000 and complained that she had not received a receipt for her $10,000. The appellant said that he had sent a receipt but Mrs Birk never received a receipt for the $10,000.

46 In late February 2000 Mrs Birk posted to the appellant a cheque for $30,000 in favour of the appellant for investment by him (count 13). She had still not met the appellant.

47 About ten days later Mrs Birk telephoned the appellant and complained that she had not received any receipt for the $30,000. The appellant said that he would visit Mrs Birk and explain how her $40,000 had been invested.

48 On 13 March 2000 the appellant visited Mrs Birk at the retirement village. The appellant produced a number of documents which became parts of exhibit O at the trial, including a document headed “Investment Dispersal of $40,000”, a receipt for $40,000, a document setting out achieved and anticipated rates of interest and a document entitled “Deed of Investment”. There was little discussion of the documents between the appellant and Mrs Birk. The appellant handed to Mrs Birk a cheque for a first payment of interest of $186.00.

49 At some time after the meeting on 13 March 2000 Mrs Birk sent the appellant a further cheque for $9,200 (count 14).

50 As a result of a conversation with her son Mrs Birk decided to terminate her investments with the appellant. On 16 May 2000 she prepared a letter to the appellant in which she requested termination of her investments immediately. She gave the letter to her son to deliver to the appellant. Subsequently Mrs Birk and her son consulted the solicitor Mr Smith.

51 At the conclusion of Mrs Birk’s examination in chief the appellant made an application for directed verdicts of not guilty on counts 12, 13 and 14. However, the trial judge said that such an application was premature, because the Crown had not yet closed it case. As I have already noted, Mrs Birk in fact gave her evidence before Mr Birk gave evidence.

52 In cross-examination by the appellant Mrs Birk said that “early on in the piece,” before she invested, her son had told her that the appellant was a solicitor and she said that in making the investments she had relied on the information supplied by her son.

53 The Crown called some other witnesses, who gave fairly brief evidence. I will refer to some only of this evidence.

54 Mr Andrew Pike solicitor of Freehill Hollingdale and Page gave evidence, thereby demonstrating, obviously, that the appellant was not the Andrew Pike solicitor of Freehill Hollingdale and Page.

55 Mr Smith solicitor gave evidence that in May 2000 he had received instructions from Mr Birk and Mrs Birk to commence court proceedings against the appellant. As an immediate injunction was being sought, the proceedings were commenced in the Equity Division of this Court. On 5 June 2000 the court proceedings were settled, the appellant consenting to a judgment in favour of Mr Birk in the sum of $25,700 and a judgment in favour of Mrs Birk in the sum of $50,000. It was agreed that there should be a stay of execution on the judgments, provided that the amounts of the judgment debts were paid by certain instalments. The first instalment of $3,000 was paid but no further instalments were paid.

56 Ms Donna Reedy gave evidence that in November 1999 she had been an employee of the credit union of which Mr Birk was a member. She accepted that, after the lapse of several years, she had no actual recollection of what had happened at the credit union on 9 November 1999. However, she identified most of the handwriting on the significant cash transaction report referring to Mr Birk and Andrew Pike as being her handwriting. She confirmed that a cheque for $10,000 drawn on Mr Birk’s account at the credit union had been presented and cashed.

57 In her evidence in chief Ms Reedy said that the information on the report about “Andrew Pike,” including the information that he was a “solicitor,” would have been supplied by Mr Pike. In cross-examination she conceded that, not having any actual recollection of the transaction, it was possible that it was Mr Birk who had supplied the information that the appellant was a solicitor.

Directed Verdicts

58 At the conclusion of the Crown case the appellant applied for directed verdicts of not guilty on counts 12, 13 and 14. This application was refused by the trial judge. It will be necessary to return to what was said on this application, when considering some of the grounds of appeal against conviction.

59 The Crown prosecutor at the trial accepted that the concession he had earlier made that verdicts of not guilty should be directed on counts 2 and 6 should extend to counts 4 and 5. In directing the jury to return verdicts of not guilty on counts 2, 4, 5 and 6 the trial judge said:-

“As a matter of law I have concluded that the evidence given in those matters could not establish an essential ingredient of the offence. You will remember that Mr Birk gave evidence in relation to the payment back to him of monies and that they relate to four of the offences”.

60 In accordance with the direction it had been given, the jury proceeded to return verdicts of not guilty on counts 2, 4, 5 and 6.

The Defence Case

61 The defendant did not give evidence in his own case. The only witness called by the appellant was Mr Keith Sheehan, who was asked principally about an alleged meeting with the appellant in November 1999 at the appellant’s home at which some other person, who Mr Sheehan could not identify, was present. It would not appear to me that Mr Sheehan’s evidence significantly assisted the appellant.

The Addresses

62 The Crown prosecutor, in deference to the appellant being unrepresented, made only a brief closing address. In this address the Crown prosecutor said that “no money has ever come forward, not one single dollar and the Crown’s argument is a very simple one that… there has never been a dollar repaid to these people. So the Crown’s argument is simply the only conclusion you draw is, he never invested”.

63 In his closing address the appellant submitted inter alia that the Crown had to prove that the appellant had not invested the monies provided and that the Crown had not proved that the appellant had not invested the monies provided.

Grounds of Appeal

64 The appellant relied on the following grounds of appeal (as stated in a document sent by the appellant to the Registry of this Court):-

” 1. The verdicts of guilty on counts 1 and 7, 8, 9 are unreasonable and cannot be supported having regard to the evidence.

2. The verdicts of guilty on counts 1 and 7, 8, 9 are unreasonable and cannot be supported having regard to the evidence, the verdicts of not guilty on counts 2 and 3, 4, 5, 6, 10, 11.

3. The verdicts of guilty on count 12 is unreasonable and cannot be supported having regard to the evidence.

4. The verdicts of guilty on counts 13 and 14 are unreasonable and cannot be supported having regard to the evidence.

5. That the trial judge has failed to take into account and he ought to have considered in regards to the applicant’s application to adjourn the trial for 5 weeks and denying the applicant’s right to produce witnesses to defend the charges for the conduct of a fair trial.

6. The trial judge made error in not correcting the crown in the Crown’s closing argument that led to the jury being misled.

7. The sentencing judge failed to have regard extraneous bail obligations, imposed upon the applicant.

65 It is apparent that the first six grounds of appeal are grounds of appeal against conviction and that the remaining two grounds are grounds of appeal against sentence. As to the grounds of appeal against conviction, it is convenient to deal first with the more specific grounds, grounds 5 and 6, before dealing with the more general grounds, grounds 1-4.

Ground of appeal 5

66 As I have already stated, the appellant on 6 December 2004 applied for the trial to be adjourned. The application was for an adjournment of five weeks, on the grounds that the appellant wished to call overseas witnesses from the United States of America, Canada and the United Kingdom and that he had exhausted his funds. The Crown prosecutor, in opposing the application, handed up a chronology of the criminal proceedings against the appellant. The trial judge, without giving a separate judgement, dismissed the application for an adjournment.

67 The document containing a chronology which the Crown prosecutor handed up to the trial judge was not precisely identified on the hearing of this appeal but I consider that it can properly be inferred (partly from the terms of the recorded argument on 6 December 2004) that it contained the same entries, or many of the same entries, as were contained in a chronology supplied to this Court.

68 According to the chronology supplied to this Court, the appellant had been committed for trial as long ago as 1 July 2002. At many mentions the appellant had asserted that he intended to call overseas witnesses, for example at the mentions held on 24 September 2002, 4 March 2003, 10 June 2003, 9 September 2003, 4 November 2003, 23 December 2003 and 20 September 2004. On 9 September 2003 the appellant had told the court that he had eleven witnesses, including six witnesses from overseas.

69 A number of previous trial dates had been fixed. A trial date on 23 March 2004 was vacated on the application of the Crown, because Mrs Birk was unavailable to give evidence. A trial date on 1 June 2004 was vacated on the application of the Crown, which was not opposed by the appellant, on the grounds that the Crown wished to investigate new evidence. On 1 June 2004 a trial date on 10 September 2004 was fixed.

70 The appellant applied to vacate the trial date on 10 September 2004, on the grounds that he was unrepresented and had several overseas witnesses. The appellant’s application was refused but the trial did not in fact proceed on 10 September 2004.

71 On 24 September 2004 the appellant successfully applied for an adjournment to enable a Canadian witness he proposed to call to obtain a passport and to enable the appellant to seek to re-engage counsel. On 24 September 2004 a trial date of 6 December 2004 was fixed. At a mention on 26 November 2004 the trial date of 6 December 2004 was confirmed.

72 Having regard to the long history of the matter, the ample opportunities the appellant had had to secure the attendance of any overseas witnesses he wished to call, the appellant’s applications in September 2004 to vacate the trial date and to adjourn the proceedings and the confirmation on 26 November 2004 of the trial date of 6 December 2004, I do not consider that it has been established that the trial judge erred in his discretionary decision to refuse the appellant’s application for an adjournment and I would reject this ground of appeal.

Ground of appeal 6

73 As I have already indicated earlier in this judgment, the Crown prosecutor in his brief closing address told the jury that, after the demands for repayment had been made in May 2000 and after the equity proceedings had been settled, “no money has ever come forward, not one single dollar”.

74 What the Crown prosecutor said was erroneous, because after the equity proceedings had been settled and in accordance with the terms of settlement of those proceedings, a sum of $3,000 had been paid.

75 However, this error was corrected by the trial judge saying in his summing-up that $3,000 had been paid back and I do not consider that the jury in its deliberations would have been under any misapprehension.

76 I would reject this ground of appeal.

Grounds of appeal 1, 2, 3 and 4

77 These grounds of appeal can conveniently be dealt with together.

78 In his written submissions in support of these grounds the appellant attacked the credibility of Mr Birk. However, Mr Birk’s oral evidence was confirmed in many respects by contemporaneous documents and it would clearly have been open to the jury to accept the main parts of Mr Birk’s evidence, as summarised by me earlier in this judgment.

79 In his oral submissions at the hearing of the appeal the appellant attacked the credibility of Ms Reedy. As I have stated earlier, Ms Reedy, candidly and unsurprisingly, conceded that she had no actual recollection of any transaction which had occurred on 9 November 1999. However, she could identify her own handwriting on the significant cash transaction report. Furthermore, even if the information appearing on the report that the appellant was a solicitor had not been supplied directly by the appellant, it would have been supplied by Mr Birk in the appellant’s presence and without any demur by the appellant. In any event, Ms Reedy’s evidence was only of marginal significance.

80 Quite apart from the submissions made by the appellant to which I have referred, I consider that there are much more fundamental problems with most of the verdicts of guilty on those counts on which verdicts of guilty were returned. It is convenient to temporarily put to one side the verdict of guilty on count 1, which raises special considerations.

81 All of counts 7, 8, 9, 12, 13 and 14 were charges of offences under s 178BA of the Crimes Act. Section 178BA of the Crimes Act, so far as is relevant, provides:-

“178BA Obtaining money etc by deception

(1) Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years.

(a) a deception as to the present intentions of the person using the deception or of any other person...”

82 In subs (2) of s 178BA “deception” is defined as meaning deception as to fact or as to law. In the present case it is clear that there was no deception as to law and that the Crown relied on deceptions as to fact.

83 As is confirmed by the terms of paragraph (a) of subs (2), the making of a promise would not, of itself, be a deception as to a matter of fact, although, if the person making the promise did not, at the time of making the promise, intend to perform the promise, there could be a deception as to the present intentions of the person making the promise and therefore a deception within the definition.

84 In all of counts 7, 8, 9, 12, 13 and 14 the deception alleged was a false representation to Mr Birk or to Mrs Birk that the appellant would invest monies advanced to him. In my opinion, the deception alleged in all of these counts should be characterised as a promise and as therefore being incapable of itself of amounting to a false representation as to a matter of fact within the definition in s 178BA(2).

85 It would have been open to the Crown to allege, in each count, as being a deception as to a matter of fact, that the appellant, at the time of making the promise, had no intention of performing his promise that the money would be invested. However, this was not the way in which the deception was framed in the indictment or the way in which the Crown presented its case or the way in which the trial judge instructed the jury.

86 It was submitted by the Crown that there was no significant difference between a representation by the appellant that he would invest money and a representation by the appellant that at the time of obtaining the money he had the present intention of investing the money. However, the element of deception is at the core of an alleged offence under

s 178BA of the Crimes Act and it is important in a trial for an alleged offence under s 178BA that the deception alleged by the Crown should be precisely specified and, as specified, should fall within the definition of deception in the section.

87 I will now turn to another aspect of the appeal.

88 As I have indicated earlier in this judgment, the appellant after the conclusion of Mrs Birk’s examination in chief, made an application for directed verdicts of not guilty on counts 12, 13, and 14, but the trial judge refused the application on the ground that it was premature.

89 At the conclusion of the Crown case the appellant renewed his application. The transcript of the argument on the renewed application was quoted in full in the appellant’s written submissions and I will now reproduce it in full:-

“ACCUSED: I’m making a submission your Honour in regards to counts 12, 13 and 14 which I submit that a direction to the jury should also go on the basis of the submission is your Honour that with the evidence from Lorna Birk, she did not state a purpose for the money was invested. I put to you your Honour that the Crown has not put by way of evidence of where the money was.

HIS HONOUR: I’m sorry, where the money was?

ACCUSED: Well my understanding the first indictment for account number 12.

HIS HONOUR: There is evidence the money went to you, is there not?

ACCUSED: That’s right.

HIS HONOUR: And there is evidence that Ms Birk was relying on the representation that you were a solicitor or barrister, was there not?

ACCUSED: I believe that that representation came from her son your Honour.

HIS HONOUR: But there is evidence, is there not, of that?

ACCUSED: That she relied on?

HIS HONOUR: What the son told her, you had told him.

ACCUSED: Yes I agree with that your Honour.

HIS HONOUR: What is your submission?

ACCUSED: Well my understanding of the counts is that one is to state of the deception, or the elements is that one is for the deception, the element of deception which is addressed by your Honour that way but the second one comes to the actual purpose of the investment.

HIS HONOUR: I’m sorry, is your submission that, notwithstanding what the representation was that was made, that the monies were given to you to invest. There is no evidence to sustain the charges?

ACCUSED: That’s correct your Honour, by the natural purpose of the funds to invest. The money was invested and as her testimony has said is that she just gave money to invest. She did not know what she was investing in. It was just an investment. Mrs Birk has agreed that she understood that investment means risk but at no time did she actually know what she was actually investing in.

HIS HONOUR: Mr Crown, where is the evidence that the monies were not invested?

CROWN PROSECUTOR: Well your Honour that’s a circumstantial case that applies to all of the counts your Honour.

HIS HONOUR: No but in the earlier matters – in each of these three, 12, 13 and 14, by deception namely by falsely representing to Lorna Birk that he would invest monies advanced to him.

CROWN PROSECUTOR: That’s correct your Honour.

HIS HONOUR: But where is the evidence that he didn’t invest them.

CROWN PROSECUTOR: The evidence we didn’t invest them is because when they asked for the repayment on 16 May 2000 and then when they took out the equity proceedings no monies were ever repaid.

His honour: But that’s not to say that they weren’t invested.

CROWN PROSECUTOR: Yes well that’s the conclusion we’ve asked. That’s the only way we can prove it wasn’t invested.

ACCUSED: I would put to your Honour that Mrs Birk there, she admitted that when they took the equity proceedings that they had actually technically breached the agreement they had with me. It was only 14 days on .. (not transcribable).

CROWN PROSECUTOR: That’s not the point your Honour. The point is the monies were asked to be immediately repaid. This is not contractual, irrespective of whether it’s 30 days or 60 days. Ever since the date of the equity proceedings beforehand, no monies were every returned to her.

HIS HONOUR: But does that mean to say they weren’t invested?

CROWN PROSECUTOR; Yes it does. That’s the conclusion we ask, that because since 2000, irrespective of the demand and the equity proceedings she never received a dollar.

HIS HONOUR: That maybe so but that doesn’t…

CROWN PROSECUTOR: That’s why it’s a circumstantial case and it equally applies to all of the counts.

HIS HONOUR: Well not necessarily in that the relations of the matters with Mr Birk, he says he only paid the money over because of the representation that he’s a solicitor.

CROWN PROSECUTOR: Yes but it’s got to be dishonestly obtained for himself and it’s a dual deception in count 1, solicitor and invest monies and what the Crown case is why I opened is a deception from the fact that no monies were ever repaid.

HIS HONOUR: But that doesn’t--

CROWN PROSECUTOR: Your Honour if we would have put ‘did invest’, the same as saying fraudulently omitted to account, we could have charged Mr Pike with fraudulently omitting to account and irrespective--

HIS HONOUR: Well we’re just dealing with the charges with which he is charged.

CROWN PROSECUTOR: Well your Honour that’s the conclusion. That’s why it would have to be a circumstantial direction that no monies were ever invested because there was never any repayment.

HIS HONOUR: But why does that lead to a conclusion that the monies weren’t invested?

CROWN PROSECUTOR: Because if they were invested then they’d be available.

HIS HONOUR: But somebody may decide not to pay them back.

CROWN PROSECUTOR: Well that’s right but that’s a conclusion on the evidence.

HIS HONOUR: Which would be a straight debt matter.

CROWN PROSECUTOR: No it would be a fraudulent omission to account.

HIS HONOUR: Well I mean so far as this matter was concerned--

CROWN PROSECUTOR: You see that’s why it’s a circumstantial case. Mr Pike has never repaid any. Therefore the Crown case has been that he fraudulently omitted to invest those amount because if they were invested he would have been able to repay them.

HIS HONOUR: But he may have been able to repay them, there’s no evidence either way.

CROWN PROSECUTOR: But that’s why we have to have a circumstantial direction, because if the monies were invested--

HIS HONOUR: But is that the Crown case is that the jury will be asked to infer that because the monies were not repaid when demand was made or at all, that the jury is then able to find that the monies were not invested?

CROWN PROSECUTOR: That’s right your Honour, because that applies not only to Mr Stuart Birk but also to his mother.

HIS HONOUR: Well the three matters in relation to his mother don’t rely upon representation that the accused was a solicitor.

CROWN PROSECUTOR: Don’t rely upon them, that’s correct your Honour. It has nothing to do with him becoming a solicitor.

HIS HONOUR: So it’s a straight out monies being advanced for investment and you say the only evidence of it not being invested is the finding – and you say the proper inference the jury would draw from that is that he didn’t invest them?

CROWN PROSECUTOR: That’s right because both the son and the mother made a letter of demand and then the accused acknowledged that he owed it but that’s why we tendered the equity proceedings, exhibit Q and when he--

90 His Honour’s remark early in this argument that there was evidence that Mrs Birk relied on a representation that the appellant was a solicitor or a barrister was not relevant, because no such representation was alleged in any of counts 12, 13 and 14. Nor was any such representation alleged in any of counts 7, 8 and 9.

91 The basis of the application for directed verdicts, as elicited by the trial judge in the course of the argument, was that there was no evidence that the monies had not been invested.

92 It is apparent from a number of remarks made by the trial judge in the course of the argument that the trial judge had considerable difficulty in accepting the Crown submission that it could be inferred, to the criminal standard of proof, from the single circumstance that the money had not been repaid, that it had not been invested.

93 At the conclusion of the argument the transcript records the trial judge as saying “Yes Mr Crown I’m against you”, which would indicate that the trial judge considered that the appellant’s application should succeed, but then immediately afterwards saying that he thought it was a jury question (and, accordingly, the appellant’s application had to be refused).

94 In my opinion, even assuming that a proper question for the jury to determine on each count was whether the Crown had proved that the appellant had not invested the money he had received, as distinct from whether the Crown had proved that at the time of obtaining the money the appellant had not had the intention of investing it, the trial judge’s initial, and indeed long sustained, reluctance to accept the Crown’s submission was well founded.

95 In the Crown prosecutor’s brief closing address and in the summing-up the only circumstance put to the jury as forming a basis for inferring beyond reasonable doubt that the monies the subject of counts 12, 13 and 14 had not been invested was that the monies had not been repaid.

96 In my opinion, it was not open to the jury on any of these counts to be satisfied beyond reasonable doubt, from the single circumstance that the money had not been repaid, that the money had not been invested. Few, if any, limitations had been placed by Mrs Birk on what would qualify as an investment of her monies. One possible explanation of any failure by the appellant to repay money, which the Crown would have had to negative beyond reasonable doubt, would have been that the money had been invested but that the investment had turned out to be unsuccessful and the money had been lost.

97 It is true that the appellant did not give evidence at the trial but, consistently with authority, this could not be used to ground or strengthen any inference in favour of the Crown (RPS v The Queen (2000) 199 CLR 620).

98 Although the appellant’s application at the trial for directed verdicts was limited to counts 12, 13 and 14, similar reasoning would apply to counts 7, 8 and 9, in each of which the only representation alleged by the Crown was a promise that the money would be invested and the only circumstance relied on by the Crown to prove that the money had not been invested was that the money had not been repaid.

99 As I have previously indicated, the trial judge, with the consent and indeed on the application of the Crown, withdrew counts 2, 4, 5 and 6 from the jury on the ground that, on each count, the money provided by Mr Birk had been repaid. Of the remaining counts left to the jury the jury returned verdicts of guilty on counts 1, 7, 8, 9, 12, 13, and 14 but returned verdicts of not guilty on counts 3, 10 and 11. The question arises whether the verdicts of guilty can be reconciled with the verdicts of not guilty on counts 3, 10 and 11.

100 Counts 3, 10 and 11 differed from the counts on which verdicts of guilty were returned, in that the representation alleged was, not that the appellant would invest money, but a more particular promise that he could or would obtain some benefit for Mr Birk, namely that he could arrange for Mr Birk’s income tax to be reduced (count 3), or that he would acquire shares in an internet company for Mr Birk (count 10) or that he would set up and register a trustee company for Mr Birk (count 11). However, notwithstanding this difference, the Crown case on counts 3, 10 and 11 was essentially the same as its case on counts 7, 8, 9, 12, 13 and 14, that is that the appellant had made a promise, which had not been kept. There would not appear to me to be any rational basis on which the jury could have accepted Mr Birk’s evidence on counts 7, 8 and 9, that a promise to invest had been made, which had not been kept, yet not have accepted Mr Birk’s evidence on counts 3, 10 and 11 that the promise alleged in each of those counts had been made and had not been kept and the money paid to the appellant had not been returned.

101 I do not consider that there any proper way to reconcile the verdicts of guilty on counts 7, 8 and 9 and counts 12, 13 and 14 with the verdicts of not guilty on counts 3, 10 and 11 (MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron J, Gummow J and Kirby J).

102 For each of the reasons I have given, I would allow the appeal against conviction on counts 7, 8, 9, 12, 13 and 14.

103 I have not so far dealt with count 1 in the indictment. Count 1 contained two alleged representations, a representation by the appellant that he was a solicitor and a representation by the appellant that he would invest the money advanced.

104 The first alleged representation, that the appellant was a solicitor, was clearly a representation as to a matter of fact. There was much evidence, which it was open to the jury to accept, that the appellant did represent to Mr Birk that he was a solicitor, that that representation was false, that Mr Birk believed that the representation was true and that the representation was a cause of the appellant obtaining the sum of $10,000 from Mr Birk.

105 The second alleged representation was a representation that the appellant would invest the money advanced and the criticisms I have previously made about a similar alleged representation in the other counts in the indictment are applicable to this second alleged representation.

106 In his summing-up the trial judge directed the jury, that the jury could convict the appellant on count 1, if the jury was satisfied beyond reasonable doubt, either that the accused represented that he was a solicitor or that the accused represented that he would invest the money (provided, of course, that the other elements of the offence were established beyond reasonable doubt). The trial judge was correct in directing the jury that where the Crown alleges two representations it would be sufficient for the Crown to prove all the elements of the offence with respect to either one of the representations.

107 It would clearly have been open to the jury to convict the appellant on the first basis. However, for reasons which I have given, I do not consider it would have been open to the jury to convict the appellant on the second basis. As one of the two alternative bases on which the trial judge directed the jury that the appellant could be found guilty was not legally open, I find that error occurred.

108 However, I would apply the proviso to s 6 of the Criminal Appeal Act. I have reviewed the whole record of the trial and I consider that evidence properly admitted at the trial proved beyond reasonable doubt the appellant’s guilt on the first count on the first basis put to the jury, namely that the appellant falsely represented that he was a solicitor. There was no significant denial of procedural fairness at the trial and I see no reason for not finding that no substantial miscarriage of justice occurred in the conviction of the appellant on count 1. Weiss v The Queen [2005] HCA 81 especially at pars 43-47.

109 I would dismiss the appeal against conviction on count 1.

110 I have concluded that the appeal against conviction should be allowed on counts 7, 8, 9, 12, 13 and 14 but should be dismissed on count 1. It is accordingly necessary to consider the application for leave to appeal against sentence.

111 The appellant’s seventh ground of appeal was that, in sentencing the appellant, the trial judge had not had regard to “extraneous” bail obligations. It became apparent at the hearing of the appeal that the ground of appeal was that the sentencing judge had failed to take into account what were submitted to have been onerous bail conditions, namely reporting conditions.

112 The appellant was on bail for a protracted period because of the long delay in his trial being held. One of the conditions on which he was granted bail was that he report to police daily. Subsequently the reporting condition was varied so as to require him to report only once a week.

113 The reporting conditions to which the appellant was subject while he was on bail were far less burdensome than the bail conditions amounting to quasi-custody in an institution, which have been held in some cases to warrant a reduction in sentence. I would dismiss this ground of appeal against sentence.

114 The second ground of appeal against sentence (ground 8), that the sentencing judge erred in imposing cumulative sentences, has been overtaken by my decision to allow the appellant’s appeal against conviction on all counts except count 1.

115 The sentence the trial judge imposed on count 1, of imprisonment for fourteen months with a non-parole period of seven months to be served by way of periodic detention, seems to me to be an appropriate, if not a lenient, sentence on count 1 and I would confirm that sentence.

116 I would propose the following orders:-

117 BUDDIN J: I agree with James J

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Citations

Pike v Regina [2006] NSWCCA 32

Most Recent Citation

Daniel Gerard OLDFIELD v REGINA [2006] NSWCCA 219

Cases Citing This Decision

1

Oldfield v The Queen [2006] NSWCCA 219

Cases Cited

4

Statutory Material Cited

3

RPS v The Queen [2000] HCA 3

Hocking v Bell [1945] HCA 16

CITATION:	Pike v Regina [2006] NSWCCA 32
HEARING DATE(S):	13/02/2006
JUDGMENT DATE:	3 March 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 2; Buddin J at 117
DECISION:	Appeal against conviction on counts 7, 8, 9, 12, 13 and 14 allowed. Appeal against conviction on count 1 dismissed. Leave to appeal against the sentence on count 1 granted. Appeal against sentence on count 1 dismissed.
CATCHWORDS:	CRIMINAL LAW – CONVICTION APPEAL - charges of dishonestly obtaining money by deception – whether verdicts are unreasonable and cannot be supported having regard to the evidence – whether trial judge erred in failing to grant an application by the appellant for an adjournment so as to secure the attendance of witnesses – whether the trial judge failed to correct a mistake in the Crown’s closing address – SENTENCE – whether sentencing judge had failed to take into account onerous bail conditions
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Criminal Appeal Act
CASES CITED:	MacKenzie v The Queen (1996) 190 CLR 348 RPS v The Queen (2000) 199 CLR 620 Weiss v The Queen [2005] HCA 81
PARTIES:	Andrew Howard John PIKE v REGINA
FILE NUMBER(S):	CCA 2005/1890
COUNSEL:	In Person - Appellant Dr P Power SC - Crown
SOLICITORS:	- Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0427
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ