R v Brian Roy Davies No. SCCRM 95/326 Judgment No. 5368 Number of Pages 11 Criminal Law

[1995] SASC 5368

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PRIOR J

Criminal law - Section 184, CLCA - 18 counts of fraudulent conversion - pleas of guilty to 5 counts mid-trial - verdicts of guilty on remaining 13 counts. Criminal Law Consolidation Act 1935RCT s184, referred to. Stephens v R
(1978) 139 CLR 315; R v Ghosh [1982] 1 QB 1053; R v Trimboli (1979) 21 SASR
577, applied.

ADELAIDE, 6-22, 24-28 November, 1-4 December 1995 (hearing), 13 December 1995 (decision)

#DATE 13:12:1995

#ADD 28:4:1997

Appellant:

Counsel: Miss R Davey, Mr A Kimber - Solicitors: DPP (SA)

Accused DAVIES:

Counsel: Mr R Halliday, Ms N Symons - Solicitors: Patrick Alderman

Order - reasons for verdicts.

PRIOR J

1. The accused is before this Court on an information alleging fifty-nine counts of fraudulent conversion: s184Criminal Law Consolidation Act, 1935.

2. By consent, eighteen counts proceeded before me in a trial by judge alone. Preliminary issues were heard before the prosecutor's opening. Statements and a document were held to have been voluntarily made and admissible. A claim for legal professional privilege was rejected.

3. The occasions the subject of the eighteen counts before me relate to events occurring from early 1991 until April 1993.

4. There is one alleged victim of the eighteen charges, a wealthy woman, (X), now in her eighties. She and her husband, (Mr X), acquired that wealth from shares in a company bought out in March 1979 for more than $40m.

5. Mr X was no businessman. He relied heavily upon the accused as his accountant and financial adviser. Before his death in 1987, Mr X had his solicitor prepare trusts with respect to the proceeds from the sale of some of his shares. A number of persons received financial benefits. The accused received $42000. He kept $13000. The rest went to the other directors of the company through which the accused practised as an accountant.

6. From 1982 until after the period the subject of these charges, the accused had Powers of Attorney for X. The 1982 or 1984 power and one issued by the deceased, were used to enable the accused to attend to the day to day management of the couple's financial affairs. Upon the death of Mr X the accused, as an executor, dealt with the accounting and investments in relation to that estate. X has a life interest in the estate.

7. The accused has had the management of almost all of her financial interests. He "purchased two house properties on her behalf ... invested money in first mortgage securities on her behalf, on long term and short term interest bearing deposits or debentures and certainly in shares". The evidence is that from 1990 until March 1993 the management of X's portfolio investments was entrusted by the accused to a Mr Chua, who reported and made recommendations with respect to those investments to the accused. The accused said that Chua was also involved in monies placed on deposit with Austrust.

8. X was charged for the accused's services in the order of $20000 a year. She took no real interest in the management of her affairs. The accused said he "would tell her about shares..... She wasn't that interested, as long as she had the money to do what she wanted to do". In her evidence, she said she was "brought up for women not to have anything to do with business". She had no real appreciation of the extent of her wealth. She spoke of her husband trusting the accused 100 per cent. She did the same. She had a cheque book and credit card for day to day expenses. She has travelled overseas often. On those occasions, up to and including 1993, funds were sought from the accused or debited to a credit card for ultimate payment out of her assets, as managed by him.

9. In April 1993, one of the accused's partners, Mr Wise, noticed what he saw as an unusual payment in to Andmark Investments Pty Ltd. It came from X's funds. He pursued the accused about the payment. The fifty-nine counts are the ultimate result of what then followed.

10. On the eighteen occasions referred to in the counts which proceeded in this trial, the evidence is that the accused personally wrote out cheques drawn on the account of X and paid them, either into his joint account with his wife or into an account operated by Andmark Investments Pty Ltd. That company is a company which is trustee for the accused's family trust. He and his wife are directors and shareholders. Their two sons are the other shareholders in that company.

11. When some three days evidence had been heard after the ruling on the admissibility of the evidence objected to, the accused changed his plea on five of the eighteen counts then proceeding to trial. He has been remanded with respect to those five matters. Notwithstanding the submissions put by the prosecutor, I have not had regard to those pleas or the accused's explanation for them as evidence tending to prove or strengthen an inference of guilt of any of the thirteen charges.

12. Count 19 is the first of the thirteen charges. That count alleges that on or about 29 April 1991 the accused, "being entrusted with money and property in order that he apply them for the use or benefit of (X) fraudulently converted the proceeds of cheque no 492963 in the sum of $10000 drawn on the account of (X) to his own use or benefit or the use or benefit of Andmark Investments Pty Ltd".

13. The other counts, counts 26, 27, 36, 37, 40, 42, 45, 46, 49, 51, 53 and 56 are similarly expressed, the sums of money in the cheques identified in the counts being $20000 in each of counts 26, 27, 40, 49, 51 and 56; $60000 in count 36; $30000 in 37; $12000 in 42; $15000 in 45; $75000 in 46; and $40000 in count 53. These offences are alleged to have occurred on dates from on or about 19 September 1991 through to on or about 8 April 1993. It is alleged that the proceeds of all those cheques have been fraudulently converted to the use or benefit of the accused or of Andmark Investments Pty Ltd. All these cheques were paid into Andmark's bank account.

14. Each count must be considered separately. By evidence relevant to a particular charge, the prosecution must establish beyond reasonable doubt that the accused was entrusted with property by X, to apply that property for her use or benefit and that the accused fraudulently converted that property to his -own use or benefit or the use or benefit of another person. The ingredients of the crime of fraudulent conversion have been the subject of judicial pronouncements. I refer particularly to Stephens v R (1978) 139 CLR
315, particularly Gibbs J at 332-335 and R v Ghosh [19821 1 QB 1053, particularly at 1064E and F.

15. It must be shown that the accused was entrusted with X's money in the sense that he had the care or disposal of it for her purposes and not to use it for his purposes as he wished: Stephens at 333. It must be proved that the accused converted X's money to his use or benefit or to the use or benefit of another and that the conversion was fraudulent. Fraudulent conversion of a particular cheque is proved beyond reasonable doubt if I am satisfied, according to the ordinary standards of ordinary and honest people, that what was done by the accused on a particular occasion when viewed objectively was dishonest and, if it was, if the accused must have realised at the time of the conversion referred to in a particular count that what was being done was by the standards of reasonable and honest people, dishonest. The prosecution must establish that the accused's state of mind was dishonest at the time of an alleged act of conversion of X's property to his own use or benefit or the use or benefit of another. The prosecution must establish that the accused was aware that he was not entitled to treat the property said to be converted as his own. The prosecution must exclude as a reasonable possibility that the accused was authorised to do what he did with a particular sum of money.

16. X's evidence was that there were occasions when the accused discussed with her where her money was invested: "Occasionally he did ask me to lend him some money for Norsie, a special situation that he organised, and he said it needed some help, so he wanted some money, could he borrow some, and I always said yes, because I thought, well he knows what he's doing, and I think he did mention Andmark occasionally, but that didn't mean very much to me. "

17. In 1987 the accused had X sign a specific authority to invest $500000 on her behalf in a company to be acquired to take over the current business of Redif Pty Ltd. That company was Norsie Ltd. The accused became a director and small shareholder in that company. According to a report by the accused to his partners, in April 1993 X's contribution towards the company exceeded $1.3m dollars. I accept the evidence of both the accused and X as establishing that with respect to investments in Norsic the signed authority was but the first authority. Later authority was not in writing but obtained on occasions when the accused and X met to discuss her affairs. The evidence about that is that this occurred but two or three times a year.

18. X also spoke of an occasion when the accused asked her for a loan to purchase a house. She said she agreed to that. Andmark was a company she knew "belonged to Mr Davies". She said she didn't know it belonged to his wife as well. She knew nothing of the drawing of the cheques particularised in the charges. In cross-examination, she assented to a question as to whether she was happy for Mr Davies to borrow money for whatever he wanted to borrow it for between 1991 and 1993. She agreed that she was not interested in how much he borrowed, when he borrowed it or why he borrowed it. She agreed that there were times when, during the period between 1991 and 1993, the accused would occasionally ask her for money and that when he did she always said yes. She agreed that part of the money he asked for was money for Norsie and Andmark. She said she trusted him 100 per cent then and she agreed that she made it plain to the accused that if he wanted to borrow money from her, she was happy to do so. She described Norsie and Andmark as the accused's "pet babies so to speak ... he seemed to always want more money". After some exploration in the course of cross-examination, X's explanation of pet babies was that those companies were companies which she understood the accused to have "organised". She understood that Andmark was something the accused was running.

19. A little further in the course of her cross-examination, X said that when she was asked for money by the accused she understood him to be asking for money for companies, not for himself personally. The only time that occurred that she remembered was when the accused "asked for money for a loan for the house, and that was, of course, for him". She acknowledged that she authorised the accused "to invest in companies that he personally could select" and also that she authorised the accused "to borrow himself for the purposes of putting it into either of (Norsie and Andmark)". She also admitted to having approved loans to his two babies; Norsie and Andmark". She denied approving loans to the accused for any other purpose. That was something she said she was sure about and then, in an answer to me, she said that sofar as money went to Norsie and Andmark, it went as an investment for her, returning the question asked of her by saying:- "I suppose whenever he made an investment it was supposed to be for me wasn't it?"

20. The accused gave evidence. He said that he regarded the Power of Attorney as authorising him to lend money to himself and to Andmark. He asserted that loans to Andmark "were also with the approval of (X)". He also said that in 1991 he approached X, "and asked her if I could borrow some money. I said at the time it was for investment purposes. She said yes she had no objection to me borrowing the funds... . I don't recall whether I was speaking about myself or Andmark. I tend to use the two inter-connected a little bit".

21. A little further in his evidence, the accused said that when he approached X and asked her if he could borrow money, "we talked about whether I meant me or Andmark and she gave me approval". At the time he drew the cheque for $10000, on 29 April 1991, the accused said that he did not give any thought to the issue of whether what he was doing was wrong because he "understood that (he) had authority to draw such a cheque". He also said that he did not give any thought as to whether other people might have considered that to be wrong. He "believed it was a transaction between (X) and (himself)". With respect to the other twelve counts he asserted a similar understanding and belief. As his counsel put it, as far as he was concerned, the accused "had an absolutely free hand to make investments in whatever he chose". He believed he had an authority from X to invest money as he saw fit including an authority to borrow money for himself and Andmark.

22. In cross-examination, the accused acknowledged that X's money "was not there to use for my own interests". As to borrowing money the subject of the charges, the accused said that he had spoken to X about that on two or three occasions between 1991 and 1993. He then said that he would have told X:- "....that I had companies, and mentioned Norsie and Andmark and told her that Andmark was investing, wanted to invest in some things. I told her that Andmark was short of funds at one stage and asked if I could borrow funds".

23. The accused insisted that he had told X that Andmark was his company and that he made it clear to X that there was a difference between Andmark and Norsie as far as investments were concerned. "Certainly she was aware of both companies and she was aware that Norsie was a company in which she had an investment and that Andmark was my company".

24. Pressed, the accused said that he certainly told X that Andmark was his company, although he didn't know whether he told X that Andmark was his family company. He agreed that he would not have told X that Andmark was a trustee for his family trust. He also spoke of speaking of Andmark as his company. The accused was asked about a statement signed by him on 24 May 1993. The statement was taken by a solicitor, Mr Kelly, and witnessed by Mr Hunt, a partner of the accused. In that statement, the accused said that:- "In about April 1991 1 told (X) that I wanted to invest some money in some companies. I think I told her that the amount would be about $50000. There was no objection by her to me taking the money. There was no documentation to evidence the loan and there was no agreement to repay interest or principal within any time. I withdrew the money and more over a period between 29th April 1991 and 8th April 1993. "

25. At the end of that statement it was said that X was "now aware ... of the full extent of her exposure to Norsic but ... not aware of the full extent of monies advanced to Andmark". In cross-examination the accused accepted the accuracy of what Mr Kelly attributed to him in the statement of 24 May 1993. He affirmed that in April 1991 he told X that he wanted to invest some money in some companies. He agreed that in 1991 there was no mention made to X of monies for him or his family personally. However, the accused suggested that it was in 1992 that he sought and obtained a fairer authority from X for money to be paid from her bank account to Andmark. I disbelieve the accused about this. Notwithstanding the character evidence called by the accused, I disbelieve him in many significant respects: R v Trimboli (1979) 21 SASR 577 at 578.

26. I reject as a reasonable possibility that what the accused said in his signed statement of 24 May 1993 about approval to about $50000 for investment in some companies was true. The evidence satisfies me that the accused well knew that there was a real difference between using money for his purposes and investing money for X herself. In my judgment he deliberately kept X in the dark about the true nature of Andmark leaving her to believe if investments were made in that company it was for her when the truth was that the accused was deliberately using her money for his purposes, including financial support of Duntech Audio Pty Ltd and AcuheaJth Pty Ltd, companies of which he was a director.

27. I agree with what the prosecutor put about the many inconsistencies in the accused's evidence. I am satisfied that he well knew the difference between using X's money for investment in listed companies, commercial organisations with which he was not connected, public or private companies of which he was a director and his family trust. In particular, I disbelieve the accused about a conversation in April 1991 with X concerned to discover whether he was borrowing money for himself or Andmark and that approval was then given for either or both. Whilst it is possible he asked X if he could borrow funds and that at some time he linked that to remarks about Andmark being short of funds, he always knew Andmark did not mean much to X. He knew that any authority he obtained or believed he had from X was to invest her money in companies for her purposes, not his or anyone elses.

28. There was no cross-examination of X about what the accused said occurred in 1991, nor was she asked about what the accused said in his May 1993 statement. Whilst the accused may well have told X that Andmark was his company, I disbelieve him in sofar as he said he made it clear to her that there was a difference between Andmark and Norsie, as far as investments were concerned. The reality is that the accused traded upon X's general lack of interest in financial matters and in particular the fact that, as she herself put in her evidence, Andmark did not mean much to her. The absence of any credibility in the accused's version of specific authority or any reasonable belief as to that is apparent in many parts of the evidence. For example, the accused's assertion that the authority he had from X "was to lend money to Andmark. It wasn't to lend money to anybody else". That answer itself is inconsistent with other assertions of authority or power to do with X's affairs as the accused wished. I have quoted an admission by the accused of interconnecting himself and Andmark. That again is indicative of the fact that the practical reality of the matter was that Andmark was the accused's alter ego and a conduit for the use of money for his purposes, not those of X.

29. It is particularly significant that in November 1987 the accused sought and obtained written authority from X to invest $500000 in a company which became known as Norsic and that in 1989, he sought and obtained authority with respect to the purchase of a house for himself and his wife. Those two events are indication enough of the truth being that the accused well knew that any power of attorney he had from X did not entitle him to use her money as his own. Nevertheless, that was his assertion in evidence. The peculiar nature of Andmark was well-known to the accused as a professional accountant. He knew how different it was from other companies. He well knew how ignorant X was about business affairs. He kept her well and truly in the dark about Andmark being trustee for the accused's family trust. He traded upon her not knowing of any difference between it and other companies. The manner in which particular cheques were drawn is particularly significant. I agree with the prosecutor that the accused's personal involvement in the drawing out of the cheques and his endorsement on cheque stubs is consistent with the commission of the offences charged, particularly against the actions taken in respect of Norsie and the house purchase, against the involvement of others in matters that were entirely consistent with the accused's true authority with respect to X's affairs. I it is of particular significance that the authority with respect to Norsie was prepared by the accused and expressed as an authority to the accused to invest monies on X's behalf. Nothing like that was ever prepared for Andmark.

30. Whilst disbelieving the accused, I have no doubt about the proper interpretation of X's evidence. Answers given by X in cross-examination suggest authority for all manner of borrowings or investments by the accused for his purposes. However, I do not interpret her evidence as establishing any authority being given to the accused to borrow for his purposes apart from the house loan. I refer again to what happened with Norsie. Properly interpreted, X's evidence establishes that she agreed to the accused investing money in companies for her, not that she agreed to the accused borrowing and using her monies to pay his bills or debts, or to invest in companies for himself or for his own purposes. I refer again to the response X gave to me in the course of evidence as already quoted in these reasons. I accept her evidence that Andmark did not mean much to her and that it was only occasionally mentioned to her by the accused.

31. I deal now with the particular charges. With respect to each of them I accept and act upon Mr Mulvaney's evidence and his analysis of payments in to and out of Andinark's account.

Count 19

32. The evidence establishes that on 29 April 1991, the accused drew a cheque on X's account in the sum of $10000. The cheque was paid into the ANZ account of Andmark Investments. The accused described the payment on X's cheque butt as "Andmark Inv. Mortgage Advance" On the same day $4000 was withdrawn from Andmark's account and paid into the joint account of the accused and his wife. On 7 May Andmark paid $6745 for overseas air travel by the accused to the United States and Salt Lake City in particular. Salt Lake City was where the accused did business on behalf of Duntech Audio Pty Ltd, one of a number of Duntech companies of which the accused is a director. The company's financial position was not good. The accused knew that. I reject as a reasonable possibility that the accused was authorised to do what he did with the proceeds of that cheque. No reference was made to Duntech in the course of X's evidence. I do not accept what the accused says he would have said about Duntech to X as raising as a reasonable possibility that X knew of Duntech or had authorised investment of any of her monies in that company. I find the charge proved. X's money was used for the accused's purposes without authority. The entire proceeds of the cheque were fraudulently converted by the accused to his own use or benefit. What the accused did was dishonest and known by him to be so.

Count 26

33. I find this charge proved also. I am satisfied beyond reasonable doubt that with respect to that cheque the accused, being entrusted with X's monies dishonestly converted that sum for his own use and benefit and that of Andmark Investments Pty Ltd. The evidence before me is that on the date when this cheque was paid in to Andmark's account with the ANZ bank the account was overdrawn by $10860.71. The balance of those funds was applied for the purposes of the accused, not X. The most significant disbursement out of Andmark's account over this period of time was a payment of $8000 to the personal cheque account of the accused and his wife, on 15 October 1991. That sum of $8000 was exhausted by cheques drawn from the accused's account to pay personal expenses of himself, his wife and family. The remaining $1139.29 was also applied for the use of the accused or Andmark. None of the proceeds of the $20000 were used for X's purposes or in accordance with any authority given by her to the accused with respect to investment in companies. I reject the accused's assertion of a belief in an authority to borrow money for himself or Andmark. The charge is proved.

Count 27

34. The evidence establishes that a cheque for $20000 was paid into the Andinark Investments Account on 24 October 1991, with $10000 being transferred to the account of the accused and his wife on 28 October 1991. The account of Andmark was again exceeding its overdraft limit by 3 February 1992. The accounts of Andmark Investments disclose no use of the $10000 not transferred to the account of the accused and his wife on 28 October 1991 being used for any purpose that was X's purpose. I reject the accused's assertion of a belief in an authority to borrow money for himself or Andmark. The charge is proved. The accused fraudulently converted the proceeds of the cheque for his own use or benefit.

Count 36

35. On 7 May 1992, the accused drew a cheque for $60000 from X's account to cover the payment of the same amount to Mann Judd Associates Pty Ltd on 5 May 1992. The evidence about that comes from the accused and his partner, Mr Wise. I accept what they agree upon about that transaction. Nevertheless, it is proved beyond reasonable doubt that, entrusted with X's monies, the accused on the occasion the subject of this charge dishonestly converted X's money to his own use and benefit and that of Andmark by using her monies not to invest in companies for her but to enable Andmark to lend money to Mann Judd until Duntech paid its fees to Mann Judd for the accused's services to Duntech. I reject the accused's assertion of a belief in an authority to borrow money for himself or Andmark. The use of X's money was dishonest and known to be so by the accused. I find this particular charge proved.

Count 37

36. On 15 June 1992, the accused personally drew a cheque on X's bank account for $30000. He described the cheque on the cheque butt, as with the cheque referred to in count 36, "Joyce Daw - Mortgage Loan Andmark". The reality was that the proceeds of that cheque were used to pay the accused's personal expenses and provide Duntech Audio with $25000. I agree with the prosecutor's submission that the payment to Duntech was never an investment for X but a payment or loan to Duntech for the accused's purposes, not the purposes of X. 'Me evidence is that Duntech Audio was in need of working capital at that time. The accused, as a director, offered to provide that sum. Nothing was done to identify that money as any investment by X. As with the other counts so far dealt with, I am satisfied beyond reasonable doubt that the charge is proved. I reject as a reasonable possibility that the accused was authorised to do what he did with the proceeds of this cheque. The fraudulent conversion is made out. What the accused did was dishonest and known by him to be so.

Count 40

37. The evidence with respect to this count establishes that on 22 July 1992, the accused drew a cheque on X's bank account for $20000. He endorsed the cheque butt, "Andmark Inv. Mortgage Loan". The proceeds of the cheque were paid into Andmark and disposed of two days later with respect to the financial affairs of Duntech. The proceeds of the cheque are clearly shown to have been converted by the accused without authority for his purposes namely, giving financial support to a private company in financial strife. The evidence was that in September 1991 the accused had joined with another director of Duntech, Mr Scammell, to obtain an advance from the ANZ Bank with respect to a liability of Duntech. The accused was paying interest on that fully drawn advance from time to time. On 24 July 1992, two days after X's $20000 cheque was paid 'into Andmark's bank account, $12000 went for interest, $8000 to Duntech itself. The accused had no authority to do as he did. He had no reason to believe he was so authorised. The conversion was fraudulent and known by the accused to be 'ust that. I find this charge proved.

Count 42

38. I find this charge proved. On 28 July 1992, the accused drew a cheque for $12000 upon X's bank account. It was paid into Andmark's bank account, the cheque butt being endorsed, "Andmark Inv. - Final Instalment Mortgage Loan". The funds were applied, not for X's purposes but purposes of the accused. Those purposes were his general personal expenses and for air fares for the accused and his wife. Part of the proceeds of this cheque was used to pay for travel by the accused and his wife when he pursued matters overseas for Acuhealth, a company of which he was both a director and shareholder. Andmark received that money back. It was retained and not repaid to X. Those facts are consistent with that which is undoubtedly proved, namely that X's funds were, without her authority, used by the accused for his purposes or that of Andinark. As in the counts already dealt with, I reject the accused's assertion of a belief in an authority to borrow money for himself or Andmark. The conversion was fraudulent viewed objectively and known by the accused to be so.

Count 45

39. Again, I find this charge proved. The sum of money drawn from X's bank account was $15000. The cheque butt was endorsed, "Andmark Inv. Debenture Loan". The evidence establishes that the entire proceeds of that cheque were applied for the accused's general and personal expenses. Specifically, $2219 went towards air fares for the accused and his wife to go to the United Kingdom, with the accused again on business for Acuhealth. Plainly, the accused had no authority to use X's money for the purposes proved. The charge is proved. The accused used the proceeds of the cheque for his purposes. The prosecution has established that the accused was acting dishonestly and that the accused well knew that. Again any asserted belief by the accused as to authority to borrow for himself or Andmark is rejected.

Count 46

40. This relates to a sum of $75000 drawn by the accused personally on X's cheque account. He identified the cheque as being for "Andmark Inv. Mortgage Loan". The evidence establishes beyond reasonable doubt that that total sum was used for the accused's purposes namely, his involvement with Acuhealth Pty Ltd. One cheque of $50000 was drawn on 28 October, the second for $25000 on the following day, 29 October 1992. The monies were therefore used not for X's purposes but for those of the accused. The conversion is proved to have been fraudulent in the manner required by law. Again I reject as a reasonable possibility that the accused was authorised or believed he was authorised to do what he did. The fact is that he well knew that he had no authority and that he deliberately used X's money for his purposes. This charge is proved.

Count 49

41. On Christmas Eve 1992, the accused drew a cheque upon X's bank account for $20000. Again, he marked the cheque butt "Andmark Inv. - Debenture Loan". The evidence establishes that the $20000 was used, without authority, for the accused's purposes, not those of X. The $20000 was paid out the same day by a cheque drawn on Andmark's account in favour of Duntech Audio Pty Ltd. I am satisfied that the accused fraudulently converted the proceeds of the cheque for his own purposes, not those of X and that the accused well knew that he had no authority to use X's money for himself, his purposes or those of Duntech Audio Pty Ltd. It is of particular significance that the sum paid to Duntech, on the same day as the cheque was drawn on X's account, was received back into the account of Andmark within a fortnight but never ever repaid to X. This only serves to confirm the lack of truth in the accused's continuing assertion that all these monies were loans from X, which were to be repaid at bank overdraft rates plus two per cent. No entries about that anywhere. No repayment when, on the face of it, there was an apparent return of funds. As the accused acknowledged, Andmark was overdrawn at the time and could not return any monies, however "borrowed" from or "lent" by X. Evidence again establishing beyond reasonable doubt fraudulent conversion, absent authority to use X's money and the accused well aware of that, not having any basis to believe that he was authorised to use X's money in the way that he did on this occasion. I find this charge proved.

Count 51

42. On 29 January 1993, the accused again personally drew a cheque on X's bank account. It was for $20000. The cheque butt recorded it as for "Andmark Inv. Debenture Loan". The evidence establishes that the proceeds of that cheque were converted by the accused for his own purposes or those of Andmark Investments in that, on 3 February 1993, the same amount was drawn on the Andmark account to pay amounts due by the accused and his co-director Scammell, with respect to a fully drawn advance obtained by them with respect to the impecunious Duntech Audio. The evidence with respect to this count establishes beyond reasonable doubt that the accused was using X's funds for his own personal purposes in keeping Duntech afloat during continuing difficult financial circumstances. There can be no reasonable doubt as to the proof of the commission of the fraudulent conversion alleged. The accused used X's funds for his purposes. The conversion was fraudulent viewed objectively and known by the accused to be so. This charge is proved.

Count 53

43. On 22 February 1993, the accused personally drew $40000 from X's cheque account. He identified the withdrawal on the cheque butt as "Andmark Inv. - Mortgage Loan". The evidence clearly establishes that the entire sum was used for the accused's purposes, not X's. Some was for the accused's personal expenses. The rest related again to Duntech and the liability of the accused with respect to a fully drawn advance in favour of himself and Mr Scan-imell. This charge is proved.

Count 56

44. On 2 April 1993, $20000 was drawn personally by the accused on X's account. He marked the cheque butt "Andmark Inv. - Mortgage Loan". The monies were used not for X's purposes but the accused's or Andmark's. The funds were for airline tickets in conjunction with another trip by the accused on behalf of Acuhealth, $10000 to solicitors with respect to expenses associated with litigation on behalf of Duntech and the balance of $3500 to the ANZ Bank with respect to the fully drawn advance account of Scammell and the accused. As with all the other counts dealt with before this one, I reject as a reasonable possibility that the accused was authorised or believed he was authorised to do what he did. As with all the other twelve counts, on this occasion the use of X's money was fraudulent and dishonest and known by the accused to be so. This charge is proved.

45. I return verdicts of guilty on each of the thirteen counts.