R v Bruce Leslie Wigney No. 4280 Judgment No. SCCRM 93/343 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4280

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Information - amendment made at commencement of trial - no injustice to accused. Criminal Law Consolidation Actss.184(l) and 281(2).

HRNG ADELAIDE, 20 October 1993 #DATE 25:11:1993
Counsel for appellant Wigney:     Mr K V Borick
Solicitors for appellant:         Mcgee and Associates
Counsel for respondent R:         Mr B R Martin QC
   with Ms E M S C Bolton
Solicitors for respondent:         Director of Public
   Prosecutions

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant was found guilty by verdict of a jury on eight charges of fraudulent conversion (s.184(1)(b) Criminal Law Consolidation Act) and four counts of fraudulent application of company property by a public officer (s.189). The sole ground of appeal pursued by Mr Borick, who appeared for the appellant, is that the learned trial judge erred in allowing amendments to the information at the commencement of the trial. 2. The information on which the appellant was tried contained eight counts of fraudulent conversion and four counts of fraudulent application. The eight counts of fraudulent conversion were all amended at the commencement of the trial on the application of counsel for the prosecution over the objection of counsel for the defence. When the amendments were allowed, counsel for the defence applied for an adjournment of the trial which was refused. The Notice of Appeal contains a ground complaining of the refusal of the adjournment but Mr Borick indicated that that ground was not pursued. The sole question on the appeal is whether the judge erred in allowing the amendments. 3. The fraudulent conversion counts as they originally stood alleged that the appellant, being entrusted with a particular cheque in order that he should deposit it in the account of the South Australian Peagrowers Co-operative Limited at the Commercial Bank, fraudulently converted the cheque and proceeds thereof to his own use or benefit or the use or benefit of some other person. The appellant was secretary of the South Australian Peagrowers Co-operative Limited. Counsel for the prosecution entertained misgivings as to whether a cheque paid to the appellant's employer could be said to have been entrusted to him. The offence as then charged is created by s.184(1)(a) of the CriminalLaw Consolidation Act. An application was therefore made to the trial judge at the commencement of the trial to amend the fraudulent conversion counts to allege breaches of s.184(1)(b). The counts as amended alleged that the appellant, having received a valuable security, namely a particular cheque, for or on account of the South Australian Peagrowers Co-operative Ltd, fraudulently converted the cheque and proceeds thereof to his own use or benefit or the use or benefit of some other person. 4. The section under which the charges were laid is as follows:
    "184.(1) Any person who -
     (a) being entrusted, whether the instructions are written,
    verbal or implied, either solely or jointly with any other
    person, with any property in order that he may retain in safe
    custody, or apply, pay or deliver for any purpose or to any
    person, the property or any part thereof or any proceeds
    thereof; or
     (b) having, either solely or jointly with any other person,
    received any property for, or on account of, any other person,
    fraudulently converts to his own use or benefit, or the use or
    benefit of any other person, the property or any part thereof or
    any proceeds thereof, or fraudulently destroys the property or
    any part thereof or any proceeds of the property or part
    thereof, shall be guilty of a misdemeanour and liable to be
imprisoned for a term not exceeding seven years." 5. The legal power of the judge to allow amendments to the information is found in s.281(2) of the Criminal Law Consolidation Act which is as follows:
    "281.(2) When before trial, or at any stage of a trial,
     it appears to the court that any information is defective or
    that there is any variation between any particular stated
    therein and the evidence offered in proof thereof, the court
    shall make such order for the amendment of the information as
    the court thinks necessary to meet the circumstances of the case
    unless, having regard to the merits of the case, the required
    amendment cannot be made without injustice." 6. Mr Borick contended that the making of the amendments resulted in injustice to the appellant. To understand this argument it is necessary to appreciate something of the history of the matter. 7. The appellant practised as an accountant under the name of Wigney and Partners. He operated an account known as Wigney Trust Account. He received money into that account from client investors and invested those moneys. He was also secretary of the South Australian Peagrowers Co-operative Limited. He received cheques on behalf of the Co-operative and paid them into the Wigney Trust Account. 8. The appellant was originally charged on an information containing counts alleging fraudulent misappropriation of moneys which he received from client investors as well as the counts relating to the cheques received for the Co-operative as they originally appeared in the subject information. The prosecution elected to sever the counts relating to the Co-operative and the appellant was tried by Bollen J and a jury on the counts relating to the client investors. He was found not guilty. 9. The counts of fraudulent conversion of cheques payable to the Co-operative as originally framed, were based upon an allegation that in January 1989 the appellant was instructed by the Co-operative's Board to desist from depositing cheques payable to the Co-operative into the Wigney Trust Account and in future to deposit them in the Co-operative's bank account. That allegation remained part of the case for the prosecution, but the counts as amended widened the alleged basis of liability to include the use to which the appellant put the proceeds of the cheques. 10. Mr Borick contended that this widening of the basis of liability constituted an injustice to the appellant and raised issues which had been resolved in the appellant's favour at the earlier trial. I am unable to see any substance in the argument. The issues in the first trial related to moneys received by the appellant from client investors and revolved around the instructions given to the appellant by those investors. The issues in the subject trial related to cheques paid to the Co-operative by peagrowers and the appellant's duty in relation to those cheques. 11. The charges, after amendment, were based upon the same facts as the charges before amendment, and the amendments did not change the nature of the case or the evidence adduced. The widening of the alleged basis of liability was due to possible difficulties associated with the concept of entrustment. The appellant does not now complain that he needed more time in which to meet the amended charges. Justice to the community required that the charges on which the trial was to proceed should reflect the basis of criminal liability to be disclosed by the evidence. There was no injustice to the appellant in allowing amendments which enabled the charges to do so. 12. I would dismiss the appeal.

JUDGE2 MILLHOUSE J I agree.

JUDGE3 DEBELLE J The effect of the amendment was to change the nature of the offences with which the appellant was charged. However, the particulars of the offences alleged against him and the evidence to be used in relation to them did not change. There might have been grounds on which the appellant could have applied for an adjournment so that he might consider how to prepare his defence to meet the new case against him. However, the appellant does not now complain that his application for an adjournment failed. He expressly limits his complaint to say that the amendment should not have been allowed. The trial judge plainly had power under s.281 of the Criminal Law ConsolidationAct to amend the information. There was no injustice in permitting the amendment to be made. 2. I agree with the Chief Justice that this appeal should be dismissed.