Police v Morton

Case [2023] ACTMC 16

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Police v Morton

Citation:

[2023] ACTMC 16

Hearing Date:

17 May 2023

DecisionDate:

16 June 2023

Before:

Magistrate Temby

Decision:

See [93]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Committal –- test to be applied by Magistrate in determining whether to commit defendant for trial – whether possible to commit with respect to statutory alternative to charged offence.

CRIMINAL LAW – Obtain property by deception – theft – electronic transaction.

Legislation Cited:

Crimes Act 1900 (NSW) ss 192B, 192E

Criminal Code 2002 (ACT) ss 308, 325, 326, 330, 332, 372

Justices Act 1902 (NSW) s 41

Legislation Act 2001 (ACT) s 190

Magistrates Court Act 1930 (ACT) s 94

Cases Cited:

Armstrong v R [2021] NSWDC 537

Bakes v Alexander [2022] ACTMC 10

Belan v R [2020] NSWDC 715

Ex parte Dowsett Re Macauly (1943) 60 WN (NSW) 40.

Forsyth v Rodda (1988) 37 A Crim R 50

Hughes v R [2021] NSWCCA 238; (2021) 291 A Crim R 252

Kolalich v Director of Public Prosecutions (NSW) [1991] HCA 47

R v Sam Scott [1993] FCA 398; (1993) 173 CLR 222

Re Geoffrey Thomas Briot; Leonard Noel Briot and John Maitland Grahame v Arthur Manning Riedel and Shane Francis Castles [1989] FCA 55

Thorp v Abbotto [1992] FCA 112; (1992) 106 ALR 239

Parties:

Sarah Trick ( Informant)

Emma Morton ( Defendant)

Representation:

Counsel

Mr Berents ( Defendant)

Solicitors

ACT Director of Public Prosecutions ( Informant)

Kamy Saeedi Law ( Defendant)

File Number:

CC 2274-2296 of 2021

CC 2549-2574 of 2021

CC 7757, 7883-7912 of 2021

CC 3951-3980 of 2022

MAGISTRATE TEMBY

Introduction

  1. The Defendant has been charged with 110 counts of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) (the Criminal Code).

  1. There are four series of charges, described by the Prosecution as having been laid in tranches:

(a)Tranche 1 comprises charges 2274/2021 to 2296/2021;

(b)Tranche 2 comprises charges 2549/2021 to 2574/2021;

(c)Tranche 3 comprises charges 7757/2021, 7883 to 7912/2021; and

(d)Tranche 4 comprises charges 3951/2022 to 3980/2022.

  1. Each charge within Tranches 1 to 3 is put in terms that the Defendant, in the Australian Capital Territory, on a particular date (or within a particular date range), did, by deception, dishonestly obtain property, namely a thing in action to a particular value, belonging to Projects on Parkinson Limited, trading as Weston Creek Children’s Centre, with the intention of permanently depriving that organisation of the property.

  1. The charges within Tranche 4 are put in very similar terms, save that the property is not defined as a thing in action, but just as a particular sum.

  1. The maximum penalty for each offence is ten years’ imprisonment, a fine of $160,000, or both. As the offences are punishable by imprisonment for longer than two years, they are indictable offences: section 190 of the Legislation Act 2001 (ACT).

  1. A committal hearing was held on 17 May 2023 before me. Mr…

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Police v Morton [2023] ACTMC 16
Case
[2023] ACTMC 16
Decision Date

CaseChat Overview and Summary

In Police v Morton, the respondent was charged with obtaining property by deception, contrary to section 202 of the Crimes Act 1900. The respondent sought to commit the charge to the Supreme Court, but the Magistrate was required to determine whether to commit the respondent for trial, taking into account the statutory alternative of obtaining property by deception through electronic means. The respondent contended that the alternative charge was not available to him, and that the Magistrate should commit the charge to the Supreme Court. The Magistrate declined to commit the charge and ordered the respondent be discharged.

The court was required to determine the appropriate test to be applied by the Magistrate in determining whether to commit the respondent for trial, particularly in cases where there is a statutory alternative to the charged offence. The court was also required to determine whether it was possible to commit the respondent with respect to the statutory alternative, and whether the alternative charge was available to the respondent.

The court found that the appropriate test to be applied by the Magistrate in determining whether to commit the respondent for trial was whether the evidence was such that a reasonably well-informed person would seriously consider that the respondent had committed the offence. The court found that the statutory alternative of obtaining property by deception through electronic means was available to the respondent, and that it was possible to commit the respondent with respect to the alternative charge. The court found that the evidence was not such that a reasonably well-informed person would seriously consider that the respondent had committed the offence, and that the Magistrate was therefore entitled to decline to commit the charge and order the respondent be discharged.

The court ordered that the respondent be discharged. The court did not make any orders with respect to the statutory alternative charge.

Orders

Orders of the court

See [93]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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