R v Bell (No 4)
[2023] SADC 78
•29 June 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BELL (NO. 4)
[2023] SADC 78
Reasons for Decision of his Honour Judge Stretton
29 June 2023
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF SYSTEM
The accused, charged with 20 counts of theft and 6 counts of dishonestly dealing with documents, sought an order severing the current 26 count Information into six separate trials on the grounds that the counts were not founded on the same facts nor do they form part of a series of offences of the same or a similar nature as required by section 102 of the Criminal Procedure Act (SA), nor were they cross admissible as discreditable conduct evidence within section 34P of the Evidence Act (SA). Further, that other discreditable conduct sought to be led by the prosecution did not satisfy the section 34P test for admission, and that even if the charges are properly joined and the discreditable conduct evidence is admissible, the information should be severed in the exercise of the court’s discretion. Finally, that the counts should be severed because the case is otherwise too complicated for a jury to understand and it would be oppressive to require the accused to have to answer it.
Held:
1. The application for severance is dismissed.
2. The charges are properly joined.
3. The evidence of each charge is cross-admissible on each other charge, satisfies the section 34P test and should be admitted.
4. The discreditable conduct evidence sought to be led by the prosecution with two exceptions satisfies the section 34P test and should be admitted.
5. While there is a substantial volume of evidence, the charges are relatively straightforward, comprehensible by a jury with the assistance of careful directions, and it would not be oppressive for the accused to answer the charges.
6. The trial will proceed as charged.
Evidence Act 1929 (SA) ss 34P, 34R, 34M(3); Criminal Procedure Act 1921 (SA) s 102(1); Criminal Law Consolidation Act 1935 (SA) s 130, referred to.
De Jesus v The Queen (1986) ALJR 1; R v Tran [2017] SASCFC 99; R v Bell [2019] SADC 45, discussed.
R v Bell [2020] SADC 107; Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116; R v Bell [2022] SADC 140; R v Bell (No. 2) [2023] SADC 19; R v McDonald (1979) 21 SASR 198; R v Liddy (2002) 81 SASR 22; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Adams v The Queen; Bradley v The Queen [2021] SASCA 147; R v MJJ; R v CJN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; R v Jacobs (1988) 143 LSJS 14; R v Sutton (1984) 153 CLR 528; R v Ellis (2010) 107 SASR 94; [2010] SASC 118; R v R, PA [2019] SASCFC 19; R v Armstrong (1990) 54 SASR 207; Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75; R v Copeland [2010] SASCFC 11; Plazeriano v Police (2017) 128 SASR 596; [2017] SASC 106; DES v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; R v Maiolo (No. 2) [2013] SASCFC 36; Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48; Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12; KRM v The Queen (2011) 206 CLR 221; [2011] HCA 11; R v Gardiner [2012] SASC 160; R v Hissey (1973) 6 SASR 280; R v Nieterink (1999) 76 SASR 56; R v M, BJ (2011) 110 SASR 1; R v Hillier (2007) 228 CLR 618; Phillips v The Queen (2006) 225 CLR 303; IMM v The Queen (2016) 257 CLR 300, considered.
R v BELL (NO. 4)
[2023] SADC 78
This trial was listed to commence on 14 March 2023. That date was the fifth time the matter has been listed for trial.
The trial has been adjourned or taken out of the trial list on prior occasions for different reasons over time, on most occasions at the request or behest of the defence.
This is a defence application for severance of the information, six separate trials, and for the exclusion of discreditable conduct evidence.
Earlier procedural history
As set out in prior rulings, the matter has a long procedural history, and the court has regard to and references the full history of the matter, without setting it all out. The history is best set out in earlier judgments, including the District Court dismissing an initial defence application for a stay,[1] a subsequent unsuccessful defence appeal and reservation of questions of law to the Full Court,[2] a recent judgment of the District Court dismissing a further defence application for a stay and determining related issues[3] and an application whereby the defence sought and were granted leave to reverse their earlier election for trial by judge alone.[4]
[1] R v Bell [2020] SADC 107.
[2] Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116.
[3] R v Bell [2022] SADC 140.
[4] R v Bell (No.2) [2023] SADC 19.
As summarised in those decisions, the offending is alleged to have occurred through a series of events between 2009 and 2013, with the Independent Commissioner Against Corruption (‘the ICAC’) commencing an investigation in 2014. In May 2017 the ICAC forwarded the matter to the DPP who decided to prosecute, filing an Information in the Magistrates Court in August 2017. The matter was committed to the District Court for trial, the DPP filing the current Information in October 2018.[5]
[5] Bell v The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116, [1]-[7].
Brief procedural history of the application
A defence application for six separate trials was filed 5 days prior to trial.[6] It was raised in court for the first time on the morning of trial, Tuesday 14 March 2023. It was not ready to be argued.
[6] FDN 111 filed 9 March 2023, five days prior to the listed trial date of 14 March 2023. Interlocutory Application seeking severance and six separate trials.
Many other applications by the defence were made shortly prior to trial. An application for a stay and extended adjournment was made orally on the morning of trial.
Initially applications alleging disclosure and related issues, and an application for a stay of the trial and for an extended adjournment, were argued.[7]
[7] An application by the defence was made orally without notice on the morning of the week set for the commencement of this 4-month trial, 14 March 2023, initially seeking an adjournment of two weeks.
Upon filing of the written defence application, a week later on 21 March 2023, the defence application became for a stay or adjournment ‘until further order’ or in the alternative ‘a date to be fixed but not before 29 May 2023’, in other words two and a half months after the 14 March 2023 trial date.
Those issues were pursued by the defence over an extended period of submissions. On 21 March 2023 the court indicated that it was important that separate trials be determined sooner rather than later, and that was the court’s strong preference.[8]
[8] Transcript of hearing 21/03/23, T 90.
Another application was for the exclusion of a substantial amount of discreditable conduct evidence concerning 68 pled topics of evidence.[9]
[9] FDN 148 filed 14 April 2023, Amended Interlocutory Application in relation to Discreditable Conduct, [1]-[68].
The hearing of the current defence applications for both severance/separate trials and for the exclusion of discreditable conduct application were argued together, and the matter was initially listed for five days of hearing from 17-21 April.
The hearing was further adjourned at the request of the defence and given a new commencement date of 19 April.
On 19 April the hearing was further adjourned at the request of the defence to 20 April. It eventually commenced on Friday 21 April, to continue the following week from 26 April.[10]
[10] In light of the defence requesting an extra preparation day on Monday 24 April, and in light of the Anzac Day public holiday falling on Tuesday 25 April.
The defence were not ready to continue submissions on 26 April[11] and sought and were granted a further adjournment to 27 April.
[11] On the basis that the prosecution had foreshadowed a narrowing of the wording of the particulars of some of the charges. It is not clear why this would have any material relevance to the severance and discreditable conduct applications. The further adjournment was however granted.
On 27 April the defence were again not ready to continue, and so defence submissions eventually resumed on Friday 28 April and continued for a further six hearing days.
Although it had earlier been agreed that they be dealt with together, part way through their submissions on 1 May the defence applied for the severance and discreditable conduct applications to be dealt with separately. Considering the earlier agreed position, that the application was substantially part-heard, and the court’s view that the applications were in fact best dealt with together, the verbal application was rejected.[12] Defence submissions continued over six days and concluded at the close of Friday 5 May.
[12] Ruling noted at T 599, 1 May 2023. See the delivered ruling for the court’s formal reasons.
Prosecution submissions took place over 9 and 10 May, however unfortunately prosecuting counsel then became ill with COVID, and submissions were unable to resume until 18 May, completing on the morning of Friday 19 May.
The Defence indicated they required until ‘at least Monday and Tuesday’[13] to prepare a written reply and prepare further submissions as they ‘now know what (the prosecution’s) basis is’[14] for advancing the discreditable conduct evidence, and hence the submissions would not be limited to ‘reply’ but address the prosecution case as the defence now understood it.[15]
[13] Transcript of hearing 19 May 2023, T 1175.
[14] Transcript of hearing 19 May 2023, T 1175.
[15] Transcript of hearing 19 May 2023, T 1175.
The defence stance that they had not earlier been aware of the prosecution’s basis for advancing discreditable conduct evidence was not clear, given the defence had previously indicated they were aware of it,[16] given the defence had had all the declarations upon which the prosecution relied since at least 2020, a 2019 ‘draft opening’, and an amended expanded ‘draft opening’ since 2020 setting out uncharged acts, and had received a detailed letter outlining the basis for advancing each identified category of discreditable conduct allegations in around 1 June 2020. Further, the defence had the prosecution’s written argument with a schedule setting out all the declarations with evidential references a day prior to commencing their initial submissions some time earlier. Nonetheless, to ensure that the defence had every opportunity to present their argument, the further time requested by the defence was granted.
[16] Variously, for example transcripts of hearing 29 March 2023, T 288-289; 6 April 2023, T 344 and 13 April 2023, T 361.
Unfortunately, defence counsel then became ill with COVID,[17] and could not reattend court until Tuesday 30 May. On that day defence counsel indicated that written ‘Reply’ submissions had also been delayed and may be able to be provided later that day, indicating that it was a substantial document of perhaps 60 pages.
[17] Transcript of hearing, variously, including 19 May 2023, T 1176.
There were further delays in the provision of that document, however the matter was able to recommence on Friday 2 June at which time the defence spoke to their 65 page further written submissions.
The prosecution raised concerns about the document and submitted the matter went substantially beyond a reply, re-started the arguments, mounted new arguments, referred to new materials, cited new authorities and mis-stated a number of matters.[18] It was common ground that the defence document went beyond a reply. The court indicated that, in an abundance of fairness, it would receive the defence document in full and allow further oral submissions in support of it, but because it was common ground the document went substantially beyond a reply, would allow the prosecution to respond in writing as requested. That prosecution written response was provided on 7 June, with defence counsel then filing a further written submission on 8 June.[19] The defence made final oral submissions on 26 June.
[18] Transcript of hearing 2 June 2023.
[19] FDN 190 Written submissions of defendant in response to prosecution submissions [FDN 187].
The charges
The accused is charged with several counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s (‘SEETA’) and the Limestone Coast Education Training Association’s (‘LCETA’) money[20] without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[21]
[20] In each case Millicent High School ICAN/FLO public funds.
[21] Information dated 9 October 2018.
The prosecution case
The prosecution say they will allege at trial that the charges arise from the accused’s involvement with a sub-campus of the Millicent High School known as the Independent Learning Centre (‘ILC’). They will allege at trial that the accused ran the Independent Learning Centre as if it was his personal business, although the funding for it was provided by Millicent High School. They will allege that the accused invoiced Millicent High School in advance for services provided at the Independent Learning Centre, but overcharged for them, and will allege that he used funding earmarked for intended student purposes for his own personal use.[22] In that context it is alleged that the accused stole money on 20 occasions, and on six further occasions dishonestly dealt with documents to benefit himself.
[22] Per previous DPP written submissions para 6, ‘Brief Overview of the Prosecution Case’.
The applications
The defence seeks an order severing the current Information alleging 26 counts into six separate trials, as follows:
·Counts 1 and 2.
·Counts 3 and 4.
·Counts 10 and 11.
·Counts 22 to 26.
·Counts 5 to 9.
·Counts 12 to 21.
The application is made on the grounds that:
·The charges are not founded on the same facts nor do they form part of a series of offences of the same or a similar nature.
·The counts are not cross-admissible and ought to be severed in the exercise of the Court’s discretion.
The defence also seeks an order excluding evidence said to constitute discreditable conduct on the part of the accused. The application to exclude is made on the grounds that it is inadmissible pursuant to section 34P of the Evidence Act 1929 (SA). Where, as here, the prosecution is not leading the evidence for a propensity or disposition purpose, s 34P provides that the evidence will only be admitted if:
·The probative value of the evidence outweighs any prejudicial effect it may have on the defendant, and in determining that; whether
·The permissible use of the evidence is and can be kept sufficiently separate and distinct from an ‘impermissible use’ so as to remove any appreciable risk of the evidence being used for that purpose.[23]
[23] An impermissible use is to suggest that the defendant is more likely to have committed the offence simply because he has engaged in discreditable conduct, see s 39P(1).
The application identifies 68 matters,[24] additionally alleging that the evidence in relation to those matters is variously founded on speculation, circular reasoning, involves general propensity reasoning and allegations of bad character, and is of limited or no relevance.[25]
[24] FDN 148, [1]-[68].
[25] FDN 148, grounds 1-17.
It is common ground that even if the court were of the view that the matters were properly joined and the evidence relevantly cross-admissible, there remains a discretion to sever the matter into two or more trials.
The defence submit that even if properly joined and all the evidence is admissible as a matter of law, the charges should be severed because the trial will be too complex for a jury to understand, and that the required directions to the jury would necessarily be ‘oppressive in their scope and requirements’.[26] The defence also puts that, in any event, it is oppressive to require the accused to answer the multiplicity of charged, uncharged and discreditable conduct alleged.[27]
[26] FDN 149, [257]-[260], [650], [657]-[658].
[27] FDN 149, [35] and [649].
The applications are opposed by the prosecution on the basis that the charged conduct comprises offences of the same or a similar nature which, together with the discreditable conduct evidence, are cross admissible on the basis that they, when necessarily viewed as a whole, allegedly reveal a system of deliberately and dishonestly moving monies to benefit himself, which the accused allegedly orchestrated and actioned which directly informs each charged count, and which allegedly rebuts accident, consent or thoughtlessness in respect of any one count.
Also, on the basis that all the evidence is necessary to understand the overall narrative of events and therefore properly assess and characterise the charged counts within them, and contextualise and explain what the prosecution alleges would otherwise seem out-of-context or strange behavior by the staff and members of the organisations concerned in continually acquiescing to the accused’s requests for money.[28]
[28] FDN 151, [117]-[120].
The prosecution submits that the trial would not be too complex for a jury to understand, and that directions can ensure that the jury will understand how the charged counts are cross-admissible, and the permissible and impermissible uses of the discreditable conduct evidence.
In arguing the applications, each party provided extensive written submissions, schedules, evidential materials, and references. The defence made detailed submissions over approximately seven days, and the prosecution three days. The court has carefully considered each submission made, all references cited, and all evidential material referred to. In some attempt at brevity, they will not all be repeated herein, but they have all been taken into account and carefully considered.
It is common ground between counsel that whether the charges are properly joined and whether the evidence is relevantly admissible and cross-admissible are questions of law.[29] Consequently, the extended articulation of reasons by a trial judge is of less necessity in relation to those issues. In short, the answers to those questions will either be right or wrong. It is not a question of discretion whereby the detailed articulation of the rationale of the court is of more use. Further, given the history of the matter, a timely decision is in the manifest interests of all concerned. For those reasons this ruling is as concise and timely as the court can make it, however it is important to repeat that everything raised has been considered. The one issue involving a discretion[30] will be appropriately addressed.
Are the charges founded on the same facts or do they form part of a series of offences of the same or a similar nature – the test
[29] Most recently FDN 183, Defence Reply [2]-[3].
[30] Whether if the court were of the view that the matters were properly joined and the evidence relevantly cross-admissible, the court should nonetheless exercise its discretion to sever the matter into two or more trials for the reasons advanced by the defence.
The joinder and severance of charges is dealt with by the Criminal Procedure Act 1921 (SA). Section 102 provides:
102—Joinder and separation of charges
(1) Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character
(2) …
(3) …
(4) …
(5)A court may direct that— (a) charges contained in a single information be dealt with in separate proceedings; or (b) charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).
As explained by the High Court in De Jesus v The Queen (1986) ALJR 1, for two or more offences to constitute a series there must be a nexus or a connection between them. The requirement that they have the same or a similar character refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. For example, in a sexual case other offences of a sexual character such as indecent assault, may be offences of a ‘similar kind’ to rape.[31]
[31] De Jesus v The Queen (1986) 61 ALJR 1, per Dawson J.
The High Court explained that similarity may also indicate a nexus, but similarity of that kind relates rather to the facts alleged by the prosecution to constitute the offences rather than to their legal characteristics, observing that the distinction may not be one which can be maintained with total precision, but that it is useful because otherwise the expression ‘a series of offences of the same or a similar character’ is somewhat tautological, since similarity is itself one of the hallmarks of a series. Observing that by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are fundamentally disparate, the essence of what is required is a sufficient correlation to enable the offences to be described as a ‘series’ without straining the word beyond the meaning which it is reasonably capable of bearing.[32]
[32] De Jesus v The Queen (1986) 61 ALJR 1, per Dawson J.
Whether there is such a nexus, or correlation, in any case must be assessed by examining the whole of the case alleged against the accused on the various counts in the information, and the facts which are alleged against the accused.[33]
[33] R v McDonald (1979) 21 SASR 198, p 200.
The law is clear that offences may be of a similar character although they are different types of offence and may form or be part of a series even though they involve different victims and occurred at different places and different times.[34]
[34] R v Liddy (2002) 81 SASR 22 per Mullighan J at [52].
It is necessary to carefully consider the charged offences to determine whether the charged offences are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character. The court has regard to the facts relating to each charged offence as set out extensively in the referenced evidence, tendered materials and as summarised and explained by both counsel. The following is very brief description only.
Are the charges founded on the same facts or do they form part of a series of offences of the same or a similar nature – the charged case
The accused is charged with 20 counts of theft, it being alleged that he dishonestly dealt with the Millicent High School ICAN/FLO public funds money without consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights. The accused is also charged with 6 counts of dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[35]
[35] Information dated 9 October 2018.
The prosecution case is that between 1996 and 2013 the accused worked in various capacities for the Department of Education and Children’s Services (‘DECS’)[36] principally as a teacher and training coordinator. As such he became thoroughly familiar with a range of government funded initiatives and programs designed to keep at risk students engaged with education. The prosecution case is that the accused took advantage of his experience, knowledge, and position to control and create a series of incorporated associations and private business entities in order to dishonestly appropriate funds from similar programs operated by the Millicent High School through a process of fraud.[37]
[36] Later a renamed Department of Child Development (DECD).
[37] FDN 146 Bundle of Prosecution Documents related to the application, Prosecution Overview and Summary of Facts (amended) 11 August 2020, Mark Norman QC at [2]-[3] (at bundle p 24).
The prosecution case is that the fraud was committed over 26 instances between 9 July 2009[38] and 8 March 2013[39] through a combination of:
·Outright theft
·False accounting
·Overcharging
·The use of ‘off-set’ accounts, and
·The creation and use of false invoices
·The creation of false documents a including minutes of meetings to disguise the fraud.[40]
[38] Count 1.
[39] Counts 24-26.
[40] FDN 146 Bundle of Prosecution Documents related to the application, Prosecution Overview and Summary of Facts (amended) 11 August 2020, Mark Norman QC at [4]-[5] (at bundle p 24).
The dynamics of each count, showing how (on the prosecution case using the above methodologies) the accused allegedly channeled Millicent High School ICAN/FLO public funds into his own personal accounts in each of the 20 charged counts of theft, are conveniently set out in chart form at pages 4-23 of the prosecution’s bundle of documents.[41] Similar charts also set out the structure of the accused’s alleged dishonest dealings with documents in relation to the same ICAN/FLO funding and same Millicent High School source of funds, in relation to the six remaining counts.[42]
[41] FDN 146 Bundle of Prosecution Documents related to the application, (at FDN 146 bundle p 4-23).
[42] FDN 146 Bundle of Prosecution Documents related to the application, (at FDN 146 bundle p 11 re count 10; FDN bundle p 22-23 re counts 22-26).
The prosecution submits that the charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character, putting during their overall submissions that:[43]
[43] FDN 151 Prosecution outline of submissions [30], [173]-[178].
·Every charge relates to evidence that the accused obtained Flexible Learning Options monies (FLO monies) via third party providers South Eastern Education and Training Association (SEETA), Limestone Coast Education and Training Association (LCETA) and Education Youth Services (EYS) per Bellistic Pty Ltd - Mr and Mrs Bell’s company, in the context of the accused’s work with the ILC. That centre (the ILC) was set up to assist students who were at risk of becoming disengaged from traditional schooling.
·FLO funds were public funds provided to Millicent High School (MHS) that were to be deployed upon programmes for students. Monies were provided by MHS and other local State schools to those third-party providers, who then were to use them on the student services.
·In each case, the FLO funds were paid over or requested by the third-party providers on the accused’s representation that they were to be wholly utilised in educational programs and/or for the educational needs of FLO students.
·In each case the accused exploited his position of status and trust in the community to obtain funds from the schools, even where his requests could not be met without non-compliance with DECD policies (ICAN-FLO policies).
·Because of his position in respect of those third-party providers, the accused was authorised to access the bank accounts of each of those providers.
·In each charged count of theft, FLO funds which were obtained were deployed to personal accounts.
·The funds were paid over by MHS and other local State schools or requested to be paid over in advance of services required to those third-party providers at the request of the accused.
·Although bookkeepers were employed by the third-party providers, they invoiced MHS on the accused’s request.
·Those funds were later dishonestly moved by the accused into other bank accounts, including personal bank accounts, and were either then spent or utilised to his personal benefit.
·There is a ‘persistent continuity’ about the charged offending.
The defence submits there are significant factual and legal differences between the charged offences, sufficient that particularly when categorised by reference to the different nature and dynamics of some of the transactions involved, the relevant entity and the factual allegation constituting the ‘actus reus,’ that they do not satisfy the test for joinder, are not properly joined,[44] and should consequently be severed into the 6 groupings of offences identified earlier in these reasons, and each of those groupings should be tried separately.[45]
[44] FDN 149 Defence outline of submissions [5], [112]-[248].
[45] Counts 1 and 2; Counts 3 and 4; Counts 5 to 9; Counts 10 and 11; Counts 12 to 21; Counts 22 to 26.
The defence highlight that there were three separate entities through which the funds were allegedly sought and/or secured by the accused; SEETA in the case of counts 1-2, LCETA in the case of 3-9 and 10-21, and EYS in the case of counts 22-26.[46] The defence emphasise the varying dynamics as to the constitution and control of those three entities,[47] and that there were differences in the way that members or staff interacted with the accused and different dynamics whereby monies were sought, considered (if at all) and paid or sought to be paid to the accused as between the charged counts.[48]
[46] FDN 149 Defence outline of submissions [113] et seq.
[47] FDN 149 Defence outline of submissions [114]-[149].
[48] FDN 149 Defence outline of submissions [150]-[256].
The defence puts that the issue in relation to the alleged dishonesty on the part of the accused concerning counts 1 and 2 differs from counts 3 and 4 and all other counts; in that the entity through which the alleged fraud occurred had changed from SEETA to LCETA, the accused’s role was different, and there were differences as to whether he provided or intended to provide the services he invoiced for.[49]
[49] FDN 149 Defence outline of submissions [167]-[169] and [178]-[180].
The defence concedes that the issue in relation to counts 5-9, being transfers of money into the accused’s personal joint account and his father’s personal account, was also dishonesty, however in the case of counts 7 and 8 the allegations were that the alleged dishonesty related to offsetting and saving interest, and that in the case of count 9 the monies allegedly were used by the accused to fund a property settlement, and that issues at trial will include whether the accused had consent to use the money in that way.[50]
[50] FDN 149 Defence outline of submissions [181]-[196].
Count 10 alleges that the accused issued a false LCETA invoice for $50,000 to Millicent High School for suggested equipment and upgrades, causing the $50,000 to be paid to LCETA on 14 December 2010, thus enabling the accused to then transfer $55,000 via an intermediary account of which he was a signatory into his own personal account on 20 December 2010, which such ultimate transfer constitutes count 11.[51] The defence puts that the issue is whether the accused dishonestly created the invoice the subject of count 10, and did so for the purpose of appropriating that money by the conduct the subject of count 11,[52] arguing that this is sufficiently different to all other charged counts that they not be tried together with them.[53]
[51] FDN 146 Bundle of Prosecution documents related to the application at bundle p 97-100, FDN 149 Defence outline of submissions [197]-[207].
[52] FDN 149 Defence outline of submissions [211].
[53] FDN 149 Defence outline of submissions [212]-[213].
Counts 12-21 allege that the accused just stole successive sums of money from LCETA by transferring the money either directly into his personal accounts (in the case of count 13) or via an account he ran which was badged to appear as if it related to the service provider ILC but was in fact an account he had opened and was the only signatory of, from whence the monies were then transferred to his personal accounts (in the case of counts 12 and 14-21).[54] The defence observe that the transfers are described using the words ‘investment’ and ‘investment acc’ or similar to suggest their legitimacy, and put that the facts, and that issues of both consent and dishonesty arise, render this group of offences materially different to the other offences.[55]
[54] FDN 146 Bundle of Prosecution documents related to the application at bundle p 101-106; FDN 149 Defence outline of submissions [215]-[218].
[55] FDN 149 Defence outline of submissions [214]-[228].
Counts 22-26 relate to allegedly false invoices dishonestly issued by the accused to Millicent High School for sums of money for further claimed education services, this time in the name of EYS a business name the accused had registered on behalf of his family company Bellistic, taking over the provision of them from LCETA. The defence observes that the prosecution alleges that this series of offences occurred during this step by the accused to create a private profit-making business for himself, and puts inter alia that the prosecution would also have to disprove that these funds obtained by the accused would nonetheless ‘be utilised when required as part of the changeover to EYS’. The defence puts that these offences are materially different from the others in this and related ways.[56]
[56] FDN 149 Defence outline of submissions [229]-[254].
This is just a brief outline of the very extended submissions made, and the court has considered everything put and tendered, and all authorities referred to. In particular, the extended defence submissions which have analysed and compared the circumstances of each charged offence in detail.[57]
[57] Including a further arguing of the case by way of the Defence Reply FDN 183 at [88]-[154].
As the authorities explain, the essence of what is required for the charges to be properly joined per s 102(1) of the Criminal Procedure Act 1921 (SA) is a sufficient ‘nexus’ or ‘connection’ between them, in other words a sufficient ‘correlation’, to enable the offences to be described as a ‘series’ of offences of the same or a similar character without straining the words beyond the meaning they are reasonably capable of bearing.
On the prosecution case reflected in the filed evidence, the simple fact is that there is a clear nexus, connection and correlation between all the charged offences evidenced per the above discussion of the charges, including: the source of the monies being taken, the broad ongoing methodology allegedly used, the role the accused allegedly played in each case, and the nature of the bodies through which or by which the accused was able to act and secure FLO funds for himself, or facilitate the securing these same FLO funds by dishonestly dealing with documents.
Hence the charges are ‘founded on the same facts or form, or are a part of, a series of offences of the same or a similar character’ within the meaning of s 102(1) Criminal Procedure Act 1921 (SA).
Charged events sought to be led as cross-admissible discreditable conduct evidence
At this stage of the matter nothing has been agreed, everything is in issue and the prosecution must prove each element of each charged offence.[58] Accordingly, evidence relevant to every element of the charged offences will be admissible subject to the applicable tests.
[58] It is important to recognise that the defence is under no obligation to agree anything whatsoever, and in any and every case, it is entirely for the prosecution to establish each element of any charged offence. Nothing in this ruling is intended to infer or connote to the contrary.
In this respect it must be remembered the law is also clear that a prosecution may not ‘split its case’. Consequently, a prosecution must call all the evidence it proposes to call or use at trial as a part of the prosecution case. That includes direct and circumstantial evidence of all relevant facts; that must include all central, explanatory, narrative and background matters, everything it proposes to rely on to prove each and every element of each charged offence, prove inferences and intent, prove dishonesty, and importantly given that it cannot split its case, to anticipate and close off any possible defences such as mistake, accident, confusion, simple incompetence, third parties being responsible, innocent actions, and so forth.
The law is clear that the prosecution cannot advance a sparse case just proving the isolated transactions that allegedly constitute the charged offences, then sit back, wait for the defence case, and then call or tender through defence witnesses hitherto uncalled prosecution evidence, directed to the now-apparent defence case.[59] So where, as here, everything is in issue, nothing is agreed, and the case is plainly being contested at every level and in every respect, the prosecution must call everything upon which they intend to rely both to establish its own case and close off or cover any issue or possible defence.
[59] Or by way of reply, except in very limited circumstances.
The prosecution must accordingly establish in each of the 20 charged instances of alleged dishonest dealing with property, each element of that offence. The offence has objective elements, for example that the accused did actually deal with the property of another, and did so without the other’s consent. It also requires proof of elements involving knowledge and intent, for example that the accused did so knowingly dishonestly, and did so intending to deprive the owner of their proprietary rights or make a serious encroachment on the owner’s proprietary rights.
Similarly, in relation to each of the 6 counts of aggravated dishonest dealings with documents the prosecution must establish both objective and intent-related matters. Objectively; whether the accused did produce, publish, or use a document that was false and whether he was in a position of trust. Concerning knowledge and intent; whether the accused knew the false document was false and whether he intended thereby to deceive, exploit, or manipulate for the purpose of knowingly, dishonestly benefitting himself.
In seeking to prove these matters the prosecution submit each charged offence is admissible in relation to each other count, to prove that the accused had a dishonest system which the evidence in support of all the counts together establishes. That evidence is hence ‘discreditable’ in relation to other charged matters the proof of which it is also relied upon to support. The prosecution also seeks to call other uncharged discreditable conduct evidence in support of proof of such system.
The prosecution set out the system they allege, and the categories and topics of evidence sought to be led in a letter to the defence on 1 June 2020, with some particulars setting out uncharged acts foreshadowed to the defence in a 2019 ‘draft opening’, those particulars being expanded in an amended ‘Prosecution Overview and Summary of facts (Amended)’, in August 2020.[60]
[60] FDN 116 ‘Prosecution Overview and Summary of facts (Amended)’, originally dated and filed 11 August 2020, now also exhibited in FDN 146 Prosecution Documents related to voir dire arguments in April 2023 (FDN 111 and FDN 144) (Joinder, Severance, and Discreditable Conduct).
The evidence is sought to be led based on its alleged tendency to establish a systematic course of fraudulent conduct, the whole of which can be used to infer the existence of the relevant mental state in respect of the charged acts. It is further sought to be led on the basis that the pattern or system can be used to rebut defences of accident, or other defences of innocent association. It is not sought to be used for any propensity purpose.[61]
[61] FDN 146 Bundle of Prosecution documents related to the application at bundle p 166 et seq; Prosecution letter of 1 June 2020 outlining proposed use of discreditable conduct evidence.
The prosecution case is that the accused’s ‘dishonest system’ of committing the charged offences involved several aspects:[62]
[62] FDN 146 Bundle of Prosecution documents related to the application at bundle p 166-167, 170; Prosecution letter of 1 June 2020 outlining proposed use of discreditable conduct evidence.
·The accused obtained Flexible Learning Options (FLO) monies via third party providers (SEETA, LCETA and EYS). Because of his position he obtained authority to access the bank accounts of each of those providers.
·So that the thefts could occur, so that there were excess funds available for him to steal, the accused deployed a system of over-charging by dishonestly invoicing the schools for money in excess of what was needed for the FLO programs to run. Further, as part of this system, he invoiced in advance of expenditure.
·FLO funds were paid over to the third-party providers on the accused’s dishonest representation that they were to be wholly utilised for the educational needs of FLO students.
·The FLO funds were paid over by Millicent High School and other local State Schools (the schools) in advance of expenditure by the providers.
·Those FLO funds were later dishonestly moved by the accused into other bank accounts, including personal bank accounts, and were then either spent or utilised for his or his family’s benefit.
·Over and above outright thefts, the accused dishonestly benefitted in other ways, including by the offset of a mortgage (in respect of account 54-848-4469 – from 21/7/09 EXHIBIT: NAB 1-JOINT, DK NAB 25 c) and the avoidance of interest payments on credit cards and loans. He also secured a benefit from using the ICAN-FLO funded 5 Percy Street, Mount Gambier address as his electoral campaign office without making payments for its use. The system was deployed to not just facilitate outright theft, but to dishonestly appropriate a financial benefit for him whenever the opportunity arose.
·The accused exploited his position of status and trust in the community to obtain funds from the schools, even where his requests could not be met without non-compliance with DECD policies (‘ICAN-FLO’ policies).
·The accused engaged in himself, and exploited a preparedness on the part of School staff, to ignore compliance requirements. Both his status in the community and the non-compliance of School staff with ICAN-FLO policies, meant he went unchallenged in the face of his requests for funding, even where those requests for monies were not authorised by DECD policy. He was emboldened to make dishonest requests for monies, as School staff continually acquiesced to his requests for payments outside the ICAN-FLO guidelines.
·The accused ensured the system could continue by occasionally returning funds from personal bank accounts from time to time when funds were needed to pay expenses to keep the FLO programs running.
·The accused did things to actively conceal his system so it could continue, in particular the alleged use of ‘dummy accounts’ as conduits to conceal his process of ultimately transferring funds to his own personal accounts, and misrepresenting those dummy accounts as ‘SAILC Investment accounts’ when in fact they were personal accounts he had opened which only he could operate. He misrepresented to an auditor Peter Gordon that transfers to these (his own) investment accounts represented a legitimate ‘loan’ to the ILC. Further, he created false minutes of meetings which did not occur, purporting to record the third party’s authorisation of his conduct in respect of monies spent. Further, he dishonestly created invoices from the ILC to the third parties to conceal the reason why funds had been transferred. Further, he caused a letter to be sent to Millicent High School on 29/5/16 dishonestly mis-stating that the accused was now in a position of paying back ‘monies held in advance for projects’ and presenting a cheque in support of that letter for $224,820.65, all as a contrivance to suggest he had legitimately been in possession of those monies.[63]
[63] FDN 146 Bundle of Prosecution documents related to the application at bundle p 166-167, 170; Prosecution letter of 1 June 2020 outlining proposed use of discreditable conduct evidence.
Uncharged discreditable conduct evidence sought to be led
The categories of uncharged discreditable conduct evidence and the related transactions and events, as briefly adverted to above, were initially set out by category and topic and summarised by the prosecution in their letter of 1 June 2020, and in more detail in their 2019 ‘draft opening’ and expanded ‘Prosecution Overview and Summary of facts (Amended)’ of August 2020. The evidence itself was set out in the initial 2018 committal brief, augmented with some further statements in 2020. Together, this provided a clear picture of the proposed discreditable conduct evidence and the uses to which the prosecution sought to put the evidence.[64]
[64] The prosecution has also regularly offered to confer, meet with and further explain the evidence to the defence if it would assist the defence. The invitation has not been taken up.
The proposed discreditable conduct evidence was further particularised and cross referenced to the declarations and exhibits in an annexure to the prosecution’s 18 April 2023 outline of submissions, filed prior to the commencement of any oral submissions.
The parties at different stages of their several written and oral submissions set this evidence out in different order and groupings, however as all relevant transcript references and witness statements are exhaustively set out, it is probably most helpful to earmark them for the purposes of this ruling with reference to this 18 April 2023 annexure.[65] For brevity the statement and exhibit references are not reproduced at this stage but are fully set out in the prosecution document.[66]
[65] FDN 151 Prosecution outline of submissions, annexed ‘Ready Reckoner’ listing topics, categories and items of discreditable conduct, and the evidential references for each topic, category, and item.
[66] FDN 151 Prosecution outline of submissions, annexed ‘Ready Reckoner’ listing topics, categories and items of discreditable conduct, and the evidential references for each topic, category, and item.
It is important to understand that the evidence is advanced in support of a tendency to establish an alleged overall system on the part of the accused, for the purposes of informing what the accused was doing and intending in relation to each individual count, and to rebut potential defences of accident, innocent association etc. Each separate item of discreditable conduct is therefore not advanced as individual direct support of a single count, but as a strand of circumstantial evidence led to prove an overall system. Therefore, the probative value of each piece of evidence must be assessed in that way, rather than by distilling each separate item of discreditable conduct evidence to ask ‘Well, how can that single piece of evidence prove count X?’
The following categories of discreditable conduct circumstantial evidence are relied upon to prove an overall system on the part of the accused:[67]
[67] FDN 151 Prosecution outline of submissions, annexed ‘Ready Reckoner’ listing topics, categories and items of discreditable conduct, and the evidential references for each topic, category, and item. Some explanatory detail and further footnoting has been added.
Building of a buffer by the accused (to create a pool of excess funds the accused could then steal)[68]
[68] Further set out in detail and particularised in the evidence of accountant Williams and in oral submissions on 10 May 2023 at T 1056-1073.
·By overcharging wages (including for wages already paid for by DECD).
·By overcharging through charging for the accused’s own work – for which he had already been paid by the department.
·By securing payments in advance.
·By charging administration fees when none were payable.
·By double-charging GST.
·By BAS GST reimbursement.
·By overcharging rent at 5 Percy Street.
·By overcharging for the Mount Schank project.
Use of a conduit account by the accused and describing it as an ‘investment account’ (to conceal that the funds were being stolen and transferred to the accused’s personal accounts)
·During the LCETA era[69] the accused created and utilised an account which be badged and described as a ‘SAILC Investment account’ (account ending – 5511) as a ‘conduit’ account, in fact a personal account to which the accused was the only signatory.
[69] Relates to the majority of the charged counts.
Benefits to the accused from 5 Percy Street (other than overcharging)
·Use as a personal campaign/electoral office.[70]
[70] More accurately a campaign office; as at the relevant times the accused had not yet been elected to parliament.
·Sub-leasing a portion of the premises to a private tenant Campbell Page for a personal profit.
Disregard of DECD policies[71]
[71] As well as evidence of the ‘system’ to benefit himself, these matters are also put on the basis that the ongoing non-compliance with guidelines and policies, combined with the fact that the educational programs were being well delivered, inured Millicent High School to the accused’s conduct thereby providing him with continued opportunity to offend, emboldened him to commit or keep committing the charged acts, and rebuts any suggestion that an alleged act is implausible because it occurred in breach of guidelines; oral submissions 10 May 2023, 18 May 2023.
·Cars and insurance.
·To seemingly retain Limestone Coast Clean (and charge ‘maintenance’ charges).
·MYOB annual fees.
·Membership fees.
·Non-compliance with PPP protocols.
Concealment of offending
·Returning of funds when ILC needed money (not discreditable but included for transparency).
·Falsification of LCETA minutes containing ‘approvals’ to give the accused’s actions the appearance of legitimacy.[72]
[72] The minutes are not sought to be led by the prosecution for a hearsay purpose (which would be to suggest the truth of their contents), but as evidence of the accused allegedly creating false exculpatory documents to have them available to himself to cover his tracks and give the false impression of legitimacy to transactions, probative of whether the offending occurred.
·Falsification of invoices (uncharged).[73]
[73] Further set out in detail and particularised per the evidence of accountant Summersides and summarised in exhibit KSJ 12, and in oral submissions on 18 May 2023; creating false invoices for the purposes of variously assisting, facilitating and/or concealing the commission of a charged offence (counts 1-3, 10, 22-20) and assisting, facilitating and concealing the overall system alleged by the prosecution.
·Falsification of MYOB entry in the LCETA opening accounts and moving of the SEETA ILC funds to LCETA without SEETA authority.
·Creation and use of ‘SAILC’ accounts as conduits (but with the accused as sole signatory).
·Accused’s advice to auditor Gordon about the transfer of monies being just a ‘loan’.
·29 May 2016 letter with $224k cheque purporting to return it as ‘monies held in advance for projects’.[74]
[74] Returning this money which he was not entitled to have taken, purporting to have been holding it for legitimate purposes.
Payments on invoice (whereby the money was secured into the accused’s personal accounts)
·Payments on invoice from LCETA to SAILC Bank Accounts and into the accused’s own accounts.
Uncharged thefts (by the accused)
·On 12 March 2010 the accused personally drew cheque number 10 on LCETA Savings and Loans account 04383049 in the amount of $8,800.00 and eventual deposit into his own account on 17 March 2010.
·Heath Street re-payment of $4,000 to SR Bell on 3 August 2010.
·On 3 August 2010 $4,000 is transferred from SAILC 16-808-5511) with heading ‘Internet Transfer Heath Street repayment’ to account 8936 SR BELL leaving only $408.22 in the account (DK NAB 05 c) - this money came directly from the LCETA transfer made on 5 July 2012.
·74 transactions itemised in KJS – 3, as transfers between LCETA accounts and the SAILC – 5511 account.[75]
·34 transactions between the SAILC accounts and accounts associated with the accused (total value $1,384,622.84).[76]
Charged acts
·On the basis that ‘The charges are cross-admissible as a matter of system or pattern’.
·On 21 July 2009 the accused and his wife completed a NAB 100% Offset Application for the loan account 89-666-1177 (DK NAB 40 A) to be offset against NAB joint account 5484 8 4469 (DK NAB 25 a).
·Opening the LCETA account, removing Fox as the Treasurer (crossing his name out) and incorrectly inserting Faye Hill as company secretary – having the effect of removing the association treasurer from accessing the key LCETA bank account.
[75] Further set out in detail and particularised in oral submissions on 10 May 2023, transcript p 1034-1073 and the evidence of accountant Summersides: further uncharged transfers of money to the accused and preliminary sourcing and movements of money to enable the money to then be transferred to the accused.
[76] Further set out in detail and particularised in oral submissions on 10 May 23, transcript p 1034-1073: further uncharged transfers of money to the accused and preliminary sourcing and movements of money to enable the money to then be transferred to the accused.
Each of these items of discreditable conduct was described and analysed in considerable detail during written and oral submissions by each party. The court has regard to each item of proposed evidence as reflected in all the material before the court, and the detailed submissions put as to each item and category of the proposed evidence.
Basis upon which the charged and uncharged discreditable conduct evidence is sought to be led
The prosecution seeks to use the discreditable conduct evidence to establish this system and prove the charges in several ways:
Firstly, on the basis that the evidence of the entire system or pattern articulated, when viewed as a whole, if established, is evidence that the accused was both deliberately moving the charged-count monies in each instance and was acting dishonestly when doing so. Further, that it is evidence that the accused was deliberately deceptive when invoicing MHS in respect of the falsified invoice charges.[77]
[77] Per R v Tran [2017] SASCFC 99 at [22].
For example, the prosecution case is that an individual transfer of money to the accused or into a ‘conduit’ account by or at the behest of the accused, as reflected in any single bank transfer regarding a single count, in many instances will by itself be colourless and impossible to characterise and understand without the totality of the evidence of what the accused was doing.[78]
[78] FDN 187 Prosecution Second Written Submissions [17].
Secondly, by way of improbability or coincidence reasoning concerning the charged or uncharged ‘dishonest dealings’ into personal accounts from SAILC accounts; to rebut any suggestion of accident, thoughtlessness or other innocent explanation in respect of the transfer of funds on any one count.
Thirdly, the evidence is relevant to the narrative of events and to contextualise the otherwise out-of-context or seemingly strange behaviours of SEETA and LCETA members and MHS staff in continually acquiescing to the accused’s requests for money and directions to transfer money.[79]
[79] Per HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [6]. See also, Adams v The Queen; Bradley v The Queen [2021] SASCA 147.
The prosecution proffers the evidence of the accused’s system as probative of the following primary facts in issue:
·Whether the accused had dishonest intentions in each charged instance.
·Whether the accused moved the monies the subject of counts 1 – 9 and 11 – 21.
·When dealing with the monies of SEETA and LCETA, whether the accused had an intention to make at the least a serious encroachment on the owner’s proprietary rights (counts 1 - 9 and 11 – 21).
·Whether the accused issued the invoices the subject of the dishonest dealings with documents charges (count 10 and 22 – 26).
·Whether the invoices the accused issued reflected false statements (counts 10 and 22 – 26).
·Whether the transfer of the monies from SEETA or LCETA was with their consent, direct or implied as defined in s 130 of the Criminal Law Consolidation Act 1935 (SA) (counts 1 - 9, 11 – 21).
The prosecution proffers the evidence of the accused’s system as essential to assess the facts in the narrative in the following respects:
·To explain how the accused had an opportunity to offend without detection.
·To explain the preparedness of MHS (Christopher Davey and Robert Shelton) to provide large amounts of FLO funds in advance to SEETA, LCETA and EYS of services required – the system was an established one, which reflected some inurement and/or trust of those who were handing over money and receiving invoices (all counts).
·To explain why the accused felt emboldened to request via invoice large sums of money for payment in advance (all counts).
·To explain whether the audit of the LCETA accounts by Gordon accurately recorded a loan, or subterfuge.
The prosecution proffers the evidence of charged and uncharged instances of theft as relevant in the following respects:
·To rebut defences of innocent association/accident/implied consent in relation to the charged offences.
·To rebut a defence that SEETA or LCETA consented to the dealings with money into personal bank accounts (counts 1 – 9, 11 – 21).
·To rebut a defence that consent was implied under the definition in s 130 of the Criminal Law Consolidation Act 1935 (SA) (counts 1 – 9, 11 – 21).
·To rebut a defence that his bookkeepers were responsible for monies being moved into his personal accounts (counts 1 – 9, 11 – 21).
·To rebut a defence that the LCETA and EYS MYOB were accurate reflections of the state of the accounts.
The defence’s overarching submissions about the prosecution’s basis for advancing this evidence are that the process of reasoning by which the prosecution proffer and seek to admit discreditable conduct evidence is flawed in three ways: firstly, that the prosecution has framed the issue in dispute as a singular question of dishonesty ignoring that there are different facts in issue across the counts, and that the real issue is not whether the system was dishonest but rather the issue is whether the dealing in question relating to a particular count was dishonest, secondly that the prosecution has wrongly conflated whether the charges are properly joined and whether the evidence in relation to each count is cross-admissible, and if so whether the evidence is admissible as discreditable conduct evidence pursuant to s 34P, and thirdly, that the prosecution are making a ‘generalised assertion’ that the charged and uncharged acts demonstrate a pattern or system which is impermissibly circular and reliant on rank propensity reasoning[80] or based on impermissible ‘bootstraps’ reasoning.[81]
[80] FDN 183 Defence written submissions in reply [13]-[15], and as expanded in subsequent paragraphs.
[81] For example, per FDN 183 Defence Written Submissions in Reply at [67] and following.
The defence argues that the prosecution has simply not demonstrated that in relation to the facts in issue in each count, that any of the discreditable conduct evidence is relevant and hence admissible on a proper application of the correct s 34P test. The defence emphasises the potential for prejudice whenever discreditable evidence is called, and that the more such evidence is called the greater risk of prejudice. The defence submits that most of the evidence has limited if any probative weight,[82] and that the risk of prejudice outweighs any probative value.
[82] Lengthy submissions were put as to this. They have all been carefully considered.
The admissibility of discreditable conduct evidence.
Discreditable conduct is any evidence that tends to discredit a person and is not limited to unlawful behaviour.[83]
[83] R v C, CN (2013) 117 SASR 64; [2013] SASCFC 44, Castle v The Queen; Bucca v The Queen (2016) 259 CLR 449; [2016] HCA 46.
The admissibility of discreditable conduct evidence is governed by s 34P of the Evidence Act (SA). The evidence in the case at bar is not advanced for any ‘propensity’ purpose. The section relevantly provides that:
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence ("discreditable conduct evidence”)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose ("impermissible use"); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the "permissible use") other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
Section 34R provides that if evidence is admitted under s 34P, the judge must identify and explain to the jury the purpose for which the evidence may or may not be used.
As set out in the section, such evidence cannot be used to suggest that the accused is more likely to have committed the offence simply because he has allegedly engaged in discreditable conduct, in other words no inference of guilt can arise from the fact that an accused has engaged in other conduct which has no relevant connection to the offence other than to share the description ‘discreditable’.[84] The impermissible use is sometimes referred to as ‘bad person’ reasoning, i.e. it is impermissible to reason that an accused must or might have committed the offence just because they are a bad person.[85]
[84] R v MJJ; R v CJN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137.
[85] R v C, CA [2013] SASCFC 137.
The evidence in the case at bar is not advanced for any ‘propensity’ purpose, accordingly it will be admissible if the probative value of the evidence outweighs any prejudicial effect it may have on the defendant. This reflects the standard test for the admissibility of most evidence.
The court must however also have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible ‘bad person’ use so as to remove any appreciable risk of the evidence being used for that purpose.
It must always be borne in mind that where multiple charges are joined in the same information, and in any event where discreditable conduct evidence either charged or uncharged is sought to be led, a real risk of prejudice may arise from the adverse effect that evidence may have in the minds or jurors.[86] Indeed while s 34M provides that discreditable conduct evidence (whether charged or uncharged) is admissible if relevant, s 34M(3) was enacted in light of that risk and to ensure that the risk is properly assessed, and must be carefully considered when such evidence is proposed to be called.
[86] R v Jacobs (1988) 143 LSJS 14; R v Sutton (1984) 153 CLR 528, and particularly in the case of sexual offences, see De Jesus v The Queen (1961) 61 ALJR 1.
Discreditable conduct evidence can legitimately be directed to any matter in issue at trial and can include improbability reasoning concerning both factual issues including modus operandi, and the accused’s knowledge and intention.[87]
[87] R v C, CA [2013] SASCFC 137; R v Ellis (2010) 107 SASR 94; [2010] SASC 118, R v R, PA [2019] SASCFC 19, R v Armstrong (1990) 54 SASR 207; Perry v The Queen (1982) 150 CLR 580; [1982] HCA 75; R v Copeland [2010] SASCFC 11; Plazeriano v Police (2017) 128 SASR 596; [2017] SASC 106; DES v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80.
Discreditable conduct evidence can also provide important explanatory context.[88]
[88] R v Maiolo (No 2) (2013) 117 SASR 1.
Contextual uses of evidence can include explaining the surrounding circumstances where evidence of the offence might otherwise present as inexplicable or improbable, also to show that the alleged offences did not occur out of the blue. It can explain why people behaved the way they did, and in ways that would not be readily explicable otherwise. It can be led to explain an accused’s confidence to act as they did, due to previous experience of what they were able to get away with, or that there would be no repercussions from their actions.[89]
[89] Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48; Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; HML v The Queen (2008) 235 CLR 334; R v MJJ; R v CJN (2013) 117 SASR 81; R v Gardiner [2012] SASC 160, [36]; R v Hissey (1973) 6 SASR 280; R v Nieterink (1999) 76 SASR 56; R v Maiolo (No 2) (2013) 117 SASR 1, [46]; R v M, BJ (2011) 110 SASR 1.
The evidence can be used in support of a case that the accused had adopted a system or pattern of conduct, which if established throws light on matters necessary for the proof of each individual count.[90]
[90] R v Tran [2017] SASCFC 99.
The evidence can be of matters earlier or later than the charged offence, so long as it is probative in relation to the commission of the charged offence.[91]
[91] R v Tran [2017] SASCFC 99 at [21].
The court must be satisfied that the evidence being advanced is relevant to each charged count and in doing so the court must have regard to whether the evidence led for that purpose is and can be kept sufficiently separate and distinct from the impermissible ‘bad person’ reasoning so as to remove any appreciable risk of the evidence being used for that purpose.[92]
[92] Section 34P(3).
In this case, the evidence is primarily advanced to show the accused had a system which directly informs what he was doing, what he was intending, and whether his actions were dishonest, in relation to every charged count. The prosecution proffers it as evidence with a tendency to infer that the accused engaged in a systematic course of fraudulent conduct the whole of which can be used to infer the relevant mental state in relation to each of the charged acts, and to rebut any other innocent explanation for the conduct and transactions, in relation to every charged count.[93]
[93] As set out FDN 146 Bundle of Prosecution documents related to the application at bundle pages 166 et seq; prosecution letter of 1 June 2020 outlining proposed use of discreditable conduct evidence; prosecution factual summaries 2019 and 2020; filed outlines of argument as set in more detail earlier in these reasons.
The leading case concerning the admissibility of evidence of this nature, i.e. (in a non-sexual case) evidence of a dishonest system to inform proof of different individual counts, is a recent decision of the Court of Criminal Appeal in R v Tran [2017] SASCFC 99 (‘Tran’).
Ms Tran was charged with a broadly similar number of charges, comprising three different categories of offending: money laundering, dishonestly dealing with a document and trafficking in a large commercial quantity of methylamphetamine.
In Tran, evidence was presented of numerous instances of the appellant’s connection with transactions involving large amounts of cash money. Most were charged but a number were not. The evidence was led to infer a pattern or system, which, if established, formed a basis from which proof of the mental element of money laundering could be inferred; and whereby the mental element of dishonestly dealing with a document and the intention to traffic in methylamphetamine could be inferred.
On the evidence before the court in Tran, before such an inference was drawn the evidence of individual instances was ‘rather colourless’. The evidence was led to demonstrate the whole scheme of the Ms Tran’s involvement in unusual transactions and, from assessment of that scheme, to evaluate the various charged steps. It was led to demonstrate a pattern or system in the whole, which gave colour to the individual acts. It was not suggested that the appellant had a propensity or proclivity to engage in unlawful dealings involving money laundering; rather, that the overall pattern of her involvement demonstrated such offending.[94]
[94] R v Tran [2017] SASCFC 99 at [22].
The court held in Tran that the evidence of her alleged system was admissible,[95] observing that each step in the various transactions of the appellant, viewed in isolation, could arguably be explained innocently. It was by viewing the whole course of conduct, comprised of charged and uncharged acts, that the true nature of the appellant’s conduct could best be assessed.[96]
[95] Per Vanstone J with whom Doyle CJ and Kelly J agreed.
[96] R v Tran [2017] SASCFC 99 at [23].
Directly comparable to the case at bar, the Court of Criminal Appeal in Tran observed that the appellant in that matter faced several charges of different types, but that a comprehensive assessment of the appellant’s activities was instructive in interpreting particular actions, regardless of whether the issue in relation to a specific act was the source of funds, knowledge, dishonest intent, or knowing involvement in trafficking. In addition, an evaluation of credibility was essential in all the charges.[97]
[97] R v Tran [2017] SASCFC 99 at [26].
Further, Doyle J observed that in such instance there was no difficulty for a trial court to distinguish between impermissible general propensity reasoning (that is, inferring guilt or a likelihood of guilt from the mere fact of one or more instances of discreditable conduct) and the permissible mode of reasoning (that is, using the fact of a pattern or system apparent from a consideration of the discreditable conduct as a whole to infer the existence of the relevant mental state in respect of particular charged acts).
Doyle J went on to observe that the former involves simplistic ‘bad person’ reasoning; or reasoning that the defendant is ‘the sort of person’ who might have committed the offence or offences charged regardless of any probative connection between the discreditable conduct and the charged offending. The latter involves reasoning from the existence of a pattern or system of conduct of a particular character revealed by a consideration of the evidence of discreditable conduct as a whole, and then using that as probative of the appellant’s state of mind in respect of the charged acts that conform to that pattern or system. He concluded that the modes of reasoning are plainly ‘conceptually distinct’.[98]
Is the evidence of each charged offence cross-admissible discreditable conduct evidence in the case of each other offence
[98] R v Tran [2017] SASCFC 99 at [168].
The court must consider the evidence in the context of the whole prosecution case, on the assumption that the evidence and the case is accepted.[99]
[99] R v Hillier (2007) 228 CLR 618; Phillips v The Queen (2006) 225 CLR 303; IMM v The Queen (2016) 257 CLR 300.
As earlier discussed and analysed, there is a clear nexus, connection and correlation between all the charged offences: reflected in the totality of the facts but in particular the source of the monies being taken, the broad ongoing methodology allegedly used, the role the accused allegedly played in each case, and the nature of the bodies through which or by which the accused was able to act and secure FLO funds for himself, or facilitate the securing of these same FLO funds by dishonestly dealing with documents; such that they are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.
Each individual charged transaction represented by an invoice/document created or directed by the accused, or a transfer of money to the accused, is to varying degrees unexplained or neutral. Without an overall picture of all the major such transfers over the period represented by the charged offending and in particular the accused’s overall and ongoing role in relation to the conduct to which all the invoices and paperwork are directed, it would be very difficult for those otherwise bare transactions to be properly characterised or understood. This is especially the case given the nature of the associations, involving the number of people the accused was working and interacting with, in relation to the first 21 counts, over a material period of time.
That the accused allegedly did it on 26 occasions, resulting in the transfer to his benefit of a very large ultimate sum of money, in the circumstances, manner and context alleged by the prosecution evidence, is probative to show the accused had a system whereby he was regularly stealing large amounts of ICAN/FLO education department money or dishonestly dealing with documents to benefit himself in relation to those same monies. The existence of such a repeated course of conduct, or ‘system’ is plainly relevant to inform what he was doing, what he was intending, and whether his actions were dishonest, in relation to each single charged count. That the accused allegedly did it on all these (many) occasions resulting in the transfer to his benefit of a very large ultimate sum of money is also probative to rebut any other innocent explanation for his conduct and the transactions themselves, such that it was not him, that it may have been an accident, an honest mistake or some other honest dealing in relation the single instances represented by each separate charged count.[100]
[100] As set out FDN 146 Bundle of Prosecution documents related to the application at bundle p 166 et seq; prosecution letter of 1 June 2020 outlining proposed use of discreditable conduct evidence; prosecution factual summaries 2019 and 2020; filed outlines of argument as set in more detail earlier in these reasons.
Whilst prejudice must be carefully considered, and the court has carefully considered it, in the court’s opinion the probative value of such evidence far outweighs any prejudice.
Explaining to a jury that such a jurisprudential use is the only permissible use is a straightforward matter. It is also a straightforward matter to explain to a jury how the evidence cannot be used, in particular that they are not to embark on any form of ‘bad person’ reasoning. In short, the permissible use can be kept sufficiently separate and distinct from such impermissible use so as to remove any appreciable risk of such impermissible use.
Accordingly, the charges are all properly joined and the evidence on each count is cross admissible and satisfies the discreditable conduct tests pursuant to s 34P. There remains a discretion to sever the charges. The court will return to that issue in due course.
Is the uncharged discreditable conduct evidence relevant and potentially admissible
As discussed, proof of an overall system where the existence of such a system can inform matters in issue in relation to separate individual counts is admissible so long as the evidence is more probative than prejudicial, and so long as in the determination of that issue regard is had to whether that permissible use is, and can be kept, sufficiently separate and distinct from the impermissible “bad person” reasoning use, so as to remove any appreciable risk of the evidence being used for that purpose.[101]
[101] Section 34P, R v Tran [2017] SASCFC 99.
The first question is whether the proffered discreditable conduct evidence is probative of that issue, i.e., probative of whether the accused was operating such a system (which system is alleged to be probative of one or more elements of each charged offence).
The first observation that must be made is that the overall factual scenario of this case is quite an unusual one, hence not immediately understandable to a jury/finder-of-fact without a detailed explanation of that factual scenario.
That overall factual scenario allegedly involves the accused, through two consecutive small non-government voluntary associations SEETA (already existing) and then LCETA (set up by the accused) and then through a business name EYS (registered by the accused on behalf of his family company), becoming involved in a government-funded out-of-school (ICAN/FLO) program[102] providing services to help vulnerable and at-risk students who had dropped out of traditional schooling and needed special help to re-enter education and training.[103] In that quite unusual context, it is alleged that the accused had a system whereby on 26 charged occasions he stole, or manipulated documents to steal, some of that government funding.
[102] The Innovative Community Action Network strategy (‘ICAN’); The DECD Flexible Learning Options Strategy (‘FLO’).
[103] FDN 116 Prosecution Overview and Summary of facts (Amended) 11 August 2020 [11]-[28], also exhibited in FDN 146 Prosecution Documents.
That is not a factual scenario where a jury/finder-of-fact could ordinarily be expected to know the basics, the structures, the environment, nor the roles of those involved, the practices that may be expected to occur, were required to occur, or did occur, and hence be able to easily assess whether any such departure from the norm or from what was required occurred, or consequently assess what such a departure might connote in terms of proof of the elements of the charged offences.
Accordingly, for a proper understanding of the environment and structure wherein the offending is alleged to occur, and wherein any one charged event allegedly occurred, the funding program itself together with these structures all need to be clearly explained at trial, together with all the relativities, the responsibilities of all concerned, and the rules and constraints indicative of how, why and where funds may be legitimately transferred and for what purpose, as a starting point in assessing whether the circumstances attending any one charged transaction that might occur therein are circumstantially indicative of legitimacy, or on the other hand are circumstantially indicative of theft or a dishonest dealing with documents.
Hence evidence relevant to establishing all these things is an essential factual starting point necessary to assess any of the individual transactions reflecting each charged offence, particularly given the unusual factual scenario means that a jury/finder-of-fact will have no inherent frame of reference.
For example, a court assessing a shoplifting charge will approach such a trial with a good inherent frame of reference: they will already understand what a shop is, the concept of paying for goods before you walk out, and any other likely indicators of honesty or dishonesty. They will not need to be given evidential detail about what a shop actually is, exactly how a shop operates, what a shopper might ordinarily be expected to be seen doing if honestly dealing with goods therein, as against what might ordinarily seem indicative of dishonestly dealing with the goods therein. Indeed, in such a case, the court/jury/magistrate will be aware as experienced members of the community what are common practices amongst shoppers that are or are not indicative of dishonesty.
Concealment by creation and use of ‘SAILC’ accounts as conduits (but with the accused as sole signatory),[129] and by representing to auditor Gordon that the transfer of monies (in fact to himself) were just a ‘loan’[130] are similarly relevant, relevant to the full picture and probative of intention and dishonesty.
[129] Shelton statement dated 12 January 2018 [46]; F Hill statement dated 13 November 2016 [13]; Summersides statement dated 27 April 2017 - that these accounts were not operating as actual LCETA investment accounts.
[130] Summersides statement dated 27 April 2017 [133] et seq; Gordon statement 6 June 2019.
Finally, the accused is alleged to have attempted to conceal his offending by causing a 29 May 2016 letter to be created and sent with a $224k cheque, purporting to return these monies and thereby falsely represent that these monies had been legitimately held by him and were now being returned as they had not been expended.[131] The defence emphasise that this occurred three years after the last charged offence. This evidence is nonetheless probative of a consciousness of guilt, and of the accused’s alleged overall system which included returning monies where necessary to avoid scrutiny, cover his tracks, and retrospectively infer legitimacy.
[131] Shelton statement dated 12 January 2018 [107]; Davey statement dated 24 January 2017 [49] et seq.
The prosecution seeks to lead evidence of the payments being made on invoice from LCETA to SAILC bank accounts and then into the accused’s own accounts.[132] These payments are at the core of this case, as this is where money including allegedly pooled excess ‘buffer’ money went prior to being allegedly stolen by the accused. To understand and properly characterise what was occurring generally, and in relation to any individual charged act, the full picture of these accounts and all the transfers into or out of them is needed. Where this relates to monies the subject of charged counts it is plainly directly relevant. Where it relates to uncharged transfers, it is also probative to understand whether there was the alleged overall system informing the accused’s actions in relation to the charged acts.
[132] Summersides statement dated 27 April 2017 KJS 3 (column H).
The prosecution seeks to lead evidence of uncharged thefts. The evidence is primarily 74 transactions transferring money from LCETA to SAILC (in fact the alleged conduit account opened and solely operated by the accused),[133] and then 34 transfers of money totaling $1,384,622.84 between SAILC accounts and personal accounts associated with the accused.[134] These are set out in annexures KJS 3 and KJS 5 to the statement of the prosecution financial expert Summersides dated 27 April 2017.
[133] Summersides statement dated 27 April 2017 KJS 3.
[134] Summersides statement dated 27 April 2017 KJS 5.
A proportion of these transfers of money reflect preparatory transactions preceding and explaining the source of funds for charged offending which could technically be separate offences but are in all material senses part of the charged offending.
Also, some reflect transactions evidencing smaller uncharged alleged offending occurring in the same way as the charged offending.[135] The prosecution also particularises further instances of uncharged theft. Firstly, reflected in evidence that on 12 March 2010 the accused personally drew cheque number 10 on LCETA Savings and Loans account 04383049 in the amount of $8,800.00 and deposited it into his own account on 17 March 2010. Secondly, reflected in payment of $4,000 from the SAILC ‘conduit’ account to SR Bell on 3 August 2012 with heading ‘Internet Transfer Heath Street repayment’. This money allegedly came directly from a LCETA transfer made on 5 July 2012.[136]
[135] Summersides statement dated 27 April 2017 KJS 3, KJS 5, and per oral submissions T 1035-1063.
[136] ‘Heath Street re-payment’, see references (DK NAB 05 c), (DK NAB 05 B statement 11).
This category of discreditable conduct evidence is sought to be led to explain how, why and what these accounts were being used for by the accused, to show the complete picture, probative of whether the accused had a dishonest system in place and, similarly to the other discreditable conduct, is evidence proffered to enable the jury to properly characterise the charged offending, and to negative defences of accident, mistake or other innocent explanation concerning the charged transactions. In the court’s view, they are probative in those ways.
Overall consideration
On analysis, the charges against the accused are at the end of the day quite straightforward, in essence alleging that on 20 occasions he stole a sum of money by getting it transferred into his own accounts,[137] and on 6 occasions manipulated documents to achieve the same thing.
[137] Or accounts associated with the accused.
The scenario and context within which those offences allegedly occurred was however unusual, and not one which a trier-of-fact would ordinarily be familiar with.[138] It involved conduct by the accused within two non-government incorporated associations, then by the accused personally utilising a business name on behalf of his family company, obtaining government funds earmarked to deliver out-of-school programs, per these non-government entities, to problem kids. Given its unusual nature, being something which any trier of fact is likely unfamiliar with, the scenario and context needs to be comprehensively explained.
[138] Whether judge or jury.
The primary prosecution case is that the accused either personally performed the transfers of money to himself, or caused others to do so by telling them to do so or sending them documentation, and then the money was transferred to him or benefit gained.
From what has been put and tendered to date, nothing is agreed for the purposes of the trial, and everything is in issue. That is entirely an accused’s right, and there can never be any criticism whatsoever of an accused person for taking that stance. However, what it does mean is that the prosecution must prove everything they allege, and in particular every element of each offence. That includes the fact of the monetary transfer, the fact of the allegedly manipulated document in question, that the accused did it or caused it to occur, that the accused was not entitled to that money, that the document was dishonestly manipulated, and also that he did it with the relevant intention and required dishonesty to prove all the elements of each of the two categories of charged offending.
In the court’s view, a complete understanding of the scenario and context is plainly relevant, including the people, practices, activities comprising and surrounding that scenario and context. And simply put, without the complete picture of that scenario and context, the bare transactions comprising the charged offending will be of little meaning to a trier-of-fact.
Indeed, if the Information is severed and two or more trials occur of groups of charges from the current Information, all this evidence will need to be called in each trial, as it is all needed to understand and assess each one of the charged counts. If there are six trials as sought by the accused, it will need to be called six times.
The prosecution cannot split its case, it must call all its evidence upfront and cannot wait to see what the defence may be, then put substantive hitherto un-tendered evidence to defence witnesses or otherwise attempt to tender that evidence during the defence case or in reply.[139] Hence it is obliged to call all and any evidence it may have to close off or negative any possible or potential defence such as accident, innocent purpose, unintended act as a part of its own case. Hence evidence probative of such matters will be admissible.
[139] Except in very limited circumstances not relevant for present purposes.
Then to assess the accused’s conduct within the scenario, and indeed assess the case contest wherever that contest might eventually rest upon the revealing of any defence case, a trier-of-fact will ordinarily not be in the best position to analyse the accused’s alleged conduct in performing the acts alleged to comprise the charged offending without seeing the full picture of his conduct, particularly where, as here, the jury will be asked to infer what the accused’s intention was and whether he was acting dishonesty in any one instance, by way of circumstantial evidence.
Where there is evidence that an accused has performed acts as a part of an overall system or pattern of behavior with a particular intent and/or dishonesty, then proof of that overall system or pattern of behaviour may be probative of intent or dishonesty of a charged act within it.[140]
[140] R v Tran [2017] SASCFC 99.
Where any of that conduct is discreditable,[141] the probative value of the evidence must outweigh any prejudicial effect having regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use (‘bad person’ reasoning) so as to remove any appreciable risk of the evidence being used for that purpose.[142]
[141] But, as here, is not proffered for a propensity purpose.
[142] Section 34P Evidence Act1929 (SA).
As earlier discussed, all the charged offending is cross-admissible in the trial of each charged offence for the reasons earlier given, as strongly probative of the primary facts in issue in the several ways explained both directly but in particular as circumstantial evidence of a system or pattern of conduct probative of the accused’s intention in relation to each charged offence, further as essential to understand and assess the facts in the context of the overall narrative, and to rebut innocent explanations or other potential defences that could be mounted particularly if a count were considered in isolation.
Carefully considering the evidence, everything put by the parties, and applying the section 34P test as explained by the cited authorities, in the words of section 34P the probative value of the charged-count cross-admissible evidence far outweighs any prejudicial effect, and the permissible use is and can be kept sufficiently separate and distinct from the impermissible (‘bad person’ reasoning) use so as to remove any appreciable risk of the evidence being used for that purpose. The directions to the jury necessary to ensure this are conceptually simple, easy to understand, and will be reinforced to the jury in writing.[143]
[143] Subject to any objection by counsel at trial.
Each of the further separate categories of discreditable conduct evidence sought to be led are, as earlier discussed, probative and hence potentially admissible in the ways discussed. Again, the probative value as against any potential prejudice to the accused must be carefully considered, both in terms of the s 34P probative/prejudice test attendant upon the calling of each category of such evidence, and then in toto.
In the court’s view evidence of the accused allegedly building up a buffer of excess funds to create a pool of excess funds the accused could then steal and alleged use of a conduit account by the accused and describing it as an ‘investment account’ (to conceal that the funds were being stolen and transferred to the accused’s personal accounts) are both fundamentally and centrally relevant to the charged case as a part of the actual methodology the accused allegedly used to commit the charged crimes. The probative nature of this evidence far outweighs any prejudicial effect, and it satisfies the s 34P test for admission.
In the court’s view evidence of benefits to the accused from 5 Percy Street (other than overcharging) by using those premises as a campaign office and sub-leasing a portion of the premises to Campbell Page for a profit, as earlier discussed are materially probative as evidence of a dishonest system or pattern as alleged by the prosecution.
In the court’s view that probative weight is somewhat less than the other categories of proffered discreditable conduct evidence given the unrelated nature of the conduct to the charged conduct. Currently, this evidence is also not foreseeably relevant to close off any defence. Given that lesser connection, that it is not currently relevant to closing off any foreseeable defence, and that the campaign office allegation involves acts relating to a future political career, there is a higher risk that a jury might consequently use impermissible ‘bad person’ reasoning.
Applying the s 34P test to this category of proffered discreditable conduct evidence, currently the probative value of the evidence does not outweigh any appreciable risk of prejudice to the accused. The evidence will not be admitted.
In the court’s view evidence of the accused disregarding DECD policies, (as well as the fact that such policies were consequently being disregarded) is highly relevant in each of the ways earlier discussed. Firstly for the jury to properly understand the otherwise-unfamiliar-to-them overall scenario of this case, secondly, relevant to prove a prosecution case that the accused was adopting a dishonest system to benefit himself indicative of his likely intention in relation to the charged counts and thirdly, most relevantly, that it created an environment whereby disregarding of policies and protocols was the norm, which made it far easier to transfer monies to himself as alleged, or have others (such as bookkeepers) do it at his request or in response to documents that he had created. It also explains the actions of others that might be difficult to otherwise understand, and which might otherwise infer that the accused’s actions were authorised or legitimate.
Applying the s 34P test to this category of proffered discreditable conduct evidence, the probative nature of this evidence far outweighs any prejudicial effect, and it satisfies the s 34P test for admission.
In the court’s view evidence of the accused concealing the offending is relevant in the ways earlier discussed. Concealing acts alleged to constitute offending are strongly circumstantially probative of intent, dishonesty, and consciousness of guilt, particularly where, as here, the transactions are otherwise neutral or presently unexplained.
Returning money on occasions to enable his offending to continue undetected and purporting to legitimise him holding the monies in the first place are centrally relevant to how the accused committed the charged offences and was allegedly able to continue committing them. Returning monies in larger sums ahead of audit or investigation culminating in the accused causing a 29 May 2016 letter to be created and sent with a $224k cheque, purporting to represent that these monies had been legitimately held are probative as attempts to cover his tracks, avoid liability, and consequently relevant to intent and consciousness of guilt. They are also probative of the accused’s alleged overall system which included returning monies where necessary to avoid scrutiny, cover his tracks, and retrospectively infer legitimacy. They are also relevant as the accused’s proffered explanation of why he held these excess quantities of money which at least in part are the subject of the charged offences.
Concealment by falsification of LCETA minutes containing ‘approvals’ to give the accused’s actions the appearance of legitimacy are plainly relevant to intent, dishonesty, and consciousness of guilt.
Concealment by falsification of invoices relating to the commission of uncharged acts, are plainly relevant to intent, dishonesty and consciousness of guilt attendant on uncharged thefts and transactions. If those transactions pass the 34P test, then this evidence is admissible concerning them.
Concealment by falsification of MYOB entries in the LCETA opening accounts and moving SEETA ILC funds to LCETA without SEETA authority are relevant to the methodology of the actual offending i.e., whether the accused was actively creating a pool of funds to then steal in the ensuing charged transactions. Such evidence is also indicative of intent, dishonesty, and consciousness of guilt, and relevant to whether the accused was utilising a dishonest overall system probative of each individual charged count.
Together, when viewed in its entirety, this evidence is probative of a concerted pattern of concealment, highly probative of the charged offences in the ways discussed.
Applying the s 34P test to this category of proffered discreditable conduct evidence, the probative nature of this evidence outweighs any prejudicial effect, and the test for admission is satisfied.
In the court’s view evidence of the accused causing payments being made on invoice from LCETA to SAILC bank accounts and then into the accused’s own accounts is centrally relevant to this case as it explains where money including pooled excess ‘buffer’ money went prior to being allegedly stolen by the accused, necessary to understand and properly characterise what was occurring generally, and each individual charged act. The evidence is necessary to put the full picture of these accounts and all the transactions both charged and uncharged without which the overall system, the accused’s conduct overall and the accused’s conduct on charged occasions would not be best analysable. Where this relates to monies the subject of charged counts it is plainly directly relevant. Where it relates to uncharged transfers, it is also probative to understand the overall picture as earlier set out, and whether there was the alleged overall system informing the accused’s actions in relation to the charged acts.
Applying the s 34P test to this category of proffered discreditable conduct evidence, the probative nature of this evidence outweighs any prejudicial effect, and the test for admission is satisfied.
In the court’s view evidence earlier discussed under the heading evidence of uncharged thefts is relevant. The 74 transactions transferring money from LCETA to the SAILC conduit account opened and operated by the accused, and the 34 transfers of money totaling $1,384,622.84 between SAILC accounts and personal accounts associated with the accused are highly relevant to the case. Without them, a substantial part of how the process operated would be absent, and the accused’s role in the system would not be fully described. In short, the ‘full picture’, context and narrative within which the charged offences are to be assessed would not be presented.
This evidence is particularly probative of whether the accused was embarked on a dishonest course of conduct, such course of conduct relevant to assessing his actions in relation to each charge offence.
A proportion of these transfers of money reflect preparatory transactions preceding and explaining the source of funds for charged offending which could technically be separate offences but are in all material senses part of the charged offending scenario. These transfers have obvious direct relevance.
Some of the transactions allegedly evidence smaller uncharged alleged offending committed in the same way or in similar ways as the charged offending. Two specific instances are particularised in detail in the written submissions. These material number of smaller uncharged thefts are particularly relevant to whether the accused was embarked on an overall dishonest course of conduct, and their number and persistence are also relevant to potentially negative defences of accident, mistake or other innocent explanation or characterisation concerning the charged transactions.
Where on a charge of any offence the prosecution seeks to lead other uncharged offences of a comparable nature, particular care must be directed to whether the potential prejudice to the accused will outweigh the probative effect, and whether the risk of impermissible ‘bad person’ reasoning can be avoided. Here, the uncharged offences are essentially smaller, lesser versions of the charged offending, and so whilst the risk of prejudice is material and cannot be dismissed it does not arise outside the framework of the charged offending, it is in most cases less serious than the charged offending, and it does not impugn the accused in any way over and above or supplementary to the gravamen of the charged offences except by repetition. That very repetition and persistence is its relevance. Nonetheless the potential risk of impermissible use must be put into the balance and carefully considered.
Its relevance to the charged case is simple and straightforward, such that it can be explained in a straightforward and the jury warned against impermissible use.
Carefully considering this evidence and applying the s 34P test to this category of proffered discreditable conduct evidence, the probative nature of this evidence outweighs any prejudicial effect, and the s 34P test is satisfied.
In some of the materials, reference is made by the prosecution to this category of evidence being ‘representative’ of other unspecified further offending. In the court’s view this descriptor would introduce the specter of possible other discreditable conduct on the part of the accused, which because of that very characteristic, would be inherently difficult to meet. Accordingly, absent any further submissions in support of it that descriptor should not be used.
Accordingly, the charges are properly joined, and each of the categories of charged and uncharged discreditable conduct with the exception of the alleged benefits the accused secured from the use of 5 Percy Street (other than overcharging), when considered separately, are more probative than prejudicial and satisfy the extended s 34P test.
It is also appropriate to consider the cumulative effect of the otherwise probative and admissible discreditable conduct material, in considering whether the consequent trial will be fair to the accused, and consider severance and separate trials in that context.
The defence has also mounted the argument that even if properly joined and all the evidence is admissible as a matter of law, the charges should be severed because the trial will be too complex for a jury to understand, and that the required directions to the jury would necessarily be ‘oppressive in their scope and requirements’.[144] Further, that it would be oppressive to require the accused to answer the multiplicity of charged, uncharged and discreditable conduct alleged. The defence consequently submits that the charges should be severed in the exercise of the court’s discretion.
Should the charges be severed, and separate trials ordered in the exercise of the court’s discretion
[144] FDN 149, [257]-[260], [650], [657]-[658].
At the outset it is to be observed from the earlier discussion that most if not all the discreditable conduct evidence sought to be led is relevant to a proper assessment of each individual count.
To consider an individual count by itself, the jury still needs to understand the full picture within which it sits; including the roles of all concerned, the normal practices, the protocols and rules by which an individual transaction might be measured, then also whether there is an overarching dishonest system at work with all the earlier discussed alleged aspects and components of that system,[145] within which that single count is to be assessed. The jury will still need to hear evidence that will negative any potential defences of accident, mistake, or some other innocent explanation. As such, most if not all the discreditable conduct evidence is consequently admissible on the trial of each single count.
[145] As demonstrated by the creation a buffer, use of invoices, concealment, departure from DECS policies, etc.
So were separate trials ordered as sought, most if not all of the discreditable conduct evidence, in particular the body of evidence directed to establish that the accused was pursuing an overall system, would be relevant to each separate charge, and admitted in each case.
Understanding this, it is apparent that severance itself would not render any of the consequent trials materially less admissive of most of the discreditable conduct evidence. Rather, the accused would be required to face much of the same evidence repeatedly, as the potentially severed subgroups of offending are sequentially tried. If, as sought by the accused, six separate trials proceeded and each took the estimated four months, the trials would last potentially for two years of hearing time. This would be oppressive for both the accused and the 93 witnesses who will be called.
Each item of discreditable conduct evidence is materially probative of the prosecution case for the reasons previously separately outlined and which are unnecessary to repeat, and together that evidence is strongly probative of the prosecution case. As to prejudice, in the court’s view, there is naturally a risk of prejudice where, as here, several topics of discreditable conduct evidence are led in the trial of a matter of this nature.
Much of it does not however connote illegal conduct. The evidence is not of an unconnected ‘bad character’ nature, in the sense that it doesn’t reveal or infer any other type of poor conduct, bad character, or discreditable behaviour unconnected with the enterprise within which the charges arise.
At the end of the day, even when looked at in toto, on analysis, the very significant probative value of this evidence is not outweighed by any cumulative prejudicial effect, such that the admission of that material ought to be revisited in light of the unsevered trial.
Importantly, in the determination of that question the court has had regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
Here, although the case itself involves a reasonable quantity of circumstantial evidence, it is not a conceptually complex or difficult case. The issue essentially is whether the accused stole government money on 20 occasions, and whether he manipulated documents to do the same or otherwise benefit himself on six occasions.
Again, whilst there is a reasonable quantity of discreditable conduct evidence, the ways that evidence may properly be used, and not used, are conceptually simple and easily explained to a jury.
For example, in relation to two examples of such evidence: by building up a buffer of funds was the accused creating a fund he could then steal? By taking steps to conceal transactions afterwards does that indicate the accused had dishonest intent or a consciousness of guilt? The permissible uses are easily explained.
Warning against the prohibited impermissible use of these topics of evidence is even simpler to explain; that the jury must not utilise it for any kind of impermissible ‘bad person’ reasoning.
Further, directions as to these matters can be given to the jury from the outset of the trial, during the summing up, and in writing, to ensure that they are always aware not to impermissibly use the evidence. Indeed, the court will accede to any reasonable request from counsel in this regard.
It is apposite to observe that the use of written directions and aide memoirs to convey important matters of law, directions and warnings is a relatively recent development in the long history of the law. What might have been difficult for a jury to digest, remember and consequently apply by way of it being said once in a long oral charge to a jury, is largely ameliorated where the jury have it in writing at all the important latter stages of the trial, and in particular when they retire to consider their verdict.
That is an important factor to remember when considering the more historical authorities, in particular when the cited older Victorian cases are considered.[146] What a court may historically have opined that a jury may have had trouble comprehending or applying, must be seen in the likely context that such an assessment was being made in the context of them being told it orally, and only once. Warnings and directions can now be clear, in writing, and taken into the jury room. This does not seem to have been a factor considered in the older authorities.
[146] For example, R v Smart [1983] 1 VR 265, and subsequent cases placing reliance on it.
As the complexity of the admissible evidence will not be greatly ameliorated by severance for the reasons outlined, it is apposite in fairness to the accused to revisit the admission of the discreditable conduct evidence and ask whether there is a basis to exclude some or all of it on the basis that there is just too much of it for a jury to understand, or that the volume of it renders the charges too complex for a jury to assess.
The defence submits that the trial of all the charges together, and with the proffered discreditable conduct evidence, is not within the capability of a jury to properly understand or assess, and that it would consequently be oppressive for that to occur and it is in any event too oppressive to require the accused to answer the quantity of evidence being led.[147]
[147] FDN 149, [649]-[651], FDN 183 [77] et seq.
As these matters are interrelated, it is appropriate to consider them together. The above observations about the use or written directions are apposite, without repeating.
As earlier observed, whilst there will be a reasonable quantity of evidence required to formally prove each element of the charged offences, the charges are themselves straightforward and easy to understand. The issue essentially is whether the accused stole government money on 20 occasions, and whether he manipulated documents to do the same or otherwise benefit himself on six occasions. There are just two different types of charge. The alleged transactions themselves are clearly and easily diagrammatically set out. The permissible and impermissible use of the discreditable conduct evidence can be easily and clearly explained to a jury.
The comprehensibility of the matter for a jury and its suitability for jury trial seems to have been the view of all concerned until recently.
In submissions during a 2019 application to transfer the matter to the Supreme Court, the accused’s then counsel Mr Griffin QC argued that the case (then a jury trial) was not as complex as might be suggested and he put that the anticipated evidence was ‘readily comprehensible if things are taken carefully and slowly.’
His Honour Judge Brebner QC in ruling on that application observed that Mr Griffin QC had submitted that the prosecution brief could be reduced to about 10 volumes and that there was significant scope for evidence to be agreed, thus reducing the amount of documentary material to be tendered and the number of sitting days required albeit no agreements had been reached nor was there any guarantee they would be.
His Honour observed that progress would be slow if the prosecution is put to strict proof and should none of the evidence be agreed the trial would occupy considerably more sitting time than the prosecution’s then estimate of three months. That remains the case, with counsel’s current joint estimate that the trial will run for about four months before the jury.
His Honour observed:
‘…it is likely that pre-trial issues of joinder and cross-admissibility could arise along with the admissibility of the uncharged acts and the trial judge could well be required to sum-up on these issues however, none of this is out of the ordinary and the principles engaged are well settled.
The number of charges and uncharged acts and the potential length of the trial and the sheer volume of the anticipated evidence cannot of themselves demonstrate relevant complexity. Moreover, and notwithstanding that the accused’s modus operandi is said to vary from time to time, relating the facts to the law in summing up will be time consuming rather than complex and the trial judge will be required to apply settled principle to a very significant body of evidence and nothing more.’ [148]
[148] R v Bell [2019] SADC 45.
In a 23 January 2023 affidavit, supporting an application that the accused’s 2020 election for trial by judge alone be revoked and the matter consequently tried before a jury, the defence put and must consequently have been of the view that as at the date of the affidavit, ‘that (the trial) would be better ventilated before a jury’.
At the time of that application and throughout the arguing of it between 3-10 February 2023 ahead of a listed 14 March 2023 four-month trial, there was no indication by the defence that the matter could not be adequately considered by a jury, indeed the defence position was that it would be better ventilated before a jury.
However, the current application has been made, the defence is not bound by any prior positions it has taken, and the matter will be considered entirely on its own merits without regard to the defence’s previous positions.
At the end of the day, both categories of charge are straightforward and simple types of offending, which are easy to understand. The basic allegations in relation to each count are also simple and straightforward; that the accused stole money or manipulated documents to receive a gain, and in each charged case in a clear and easy to understand way.
The discreditable conduct evidence is bound up in and part of a relatively unique scenario and environment, most of which scenario would have to be explained in detail whether or not the discreditable conduct evidence is called.
The purpose for which the discreditable conduct evidence is led is also not difficult to understand or describe to a jury, particularly with the use of clear written directions which the jury can take into the jury room with them.
The impermissible use of that evidence can be simply explained and is itself a readily understandable concept. The use of such written directions means that this warning will also be clear to the jury throughout their deliberations.
Further, as discussed with counsel, the long experience of this court with modern juries indicates they are by and large intelligent and committed triers of fact, whether or not that was the case historically.
At the end of the day, it is true that the case is neither short nor is it overly simple, but it is not one incapable of being understood by a jury or unlikely to be understood by a jury. Nor, with the proper directions, is there a material risk of that.
Nor is the case one where the applicable principles and directions are themselves complicated. The fact that the calling of several topics of discreditable conduct evidence means that such evidence must also be subject to directions, and a number of directions, does not create a sufficient risk that they will not be understood, particularly if those directions are clear and in writing.
In conclusion
1. The application for severance is dismissed.
2. The charges are properly joined.
3. The evidence of each charge is cross-admissible on each other charge, satisfies the section 34P test and should be admitted.
4. The discreditable conduct evidence sought to be led by the prosecution with two exceptions satisfies the section 34P test and should be admitted.
5. While there is a substantial volume of evidence, the charges are relatively straightforward, comprehensible by a jury with the assistance of careful directions, and it would not be oppressive for the accused to answer the charges.
6. The trial will proceed as charged.
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