R v Collins - [2006] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLINS
[2006] SASC 154
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
25 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for two counts of dishonestly dealing with a document - s 140 Criminal Law Consolidation Act 1935 (SA) - Alleged falsification and use of an Internet Transfer Receipt with the intention of gaining a benefit - Benefit alleged was a "financial advantage" - Discussion of meaning of "benefit" as it appears in s 140 - Impossible for appellant to gain a financial benefit from falsification or use of document - Whether trial Judge misdirected jury as to the relevance of "impossibility" when assessing appellant's intention at the relevant times - Appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Case against the appellant was circumstantial - Question as to the appellant's state of mind at the time of falsifying and using a particular document - Whether appellant used the document intending to deceive another and by that means intending to benefit himself - Whether open to the jury to be satisfied that the only reasonable explanation for the appellant's conduct was that he intended to gain a financial advantage by reason of his conduct - Sufficient evidence for the jury to be so satisfied - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 130, s 139, s 140, s 141, s 142, s 145, s 148, s 150, s 151, s 249, s 252, s 253, s 259, s 260, s 261; Land and Business (Sale and Conveyancing) Act 1994 (SA) s 5, referred to.

R v COLLINS
[2006] SASC 154
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J. In my view the appeal should be dismissed. I agree with the reasons of Bleby J.
BLEBY J:
Introduction
The appellant appeals by leave against his conviction on two counts of a breach of s 140 of the Criminal Law Consolidation Act 1935 (“the Act”). The grounds of appeal for which leave was given relate to the directions of the trial Judge to the jury, including the answers given to two questions asked by the jury after they had retired, and an allegation that the verdicts are unsafe and unsatisfactory.
The legislation
As the grounds of appeal depend upon a proper application of s 140 of the Act, it is necessary to set out the relevant parts of the Act.
Section 140 is contained in Part 5 of the Act. So far as it is material it provides:
Dishonest dealings with documents
(1)     For the purposes of this section, a document is false if the document gives a misleading impression about—
(a)     the nature, validity or effect of the document; or
(b)     any fact (such as, for example, the identity, capacity or official position of an apparent signatory to the document) on which its validity or effect may be dependent; or
(c)     the existence or terms of a transaction to which the document appears to relate.
(2)     A document that is a true copy of a document that is false under the criteria prescribed by subsection (1) is also false.
(3)     A person engages in conduct to which this section applies if the person—
(a)     creates a document that is false; or
(b)     falsifies a document; or
(c)     has possession of a document knowing it to be false; or
(d)     produces, publishes or uses a document knowing it to be false; or
(e)     destroys, conceals or suppresses a document.
(4)     A person is guilty of an offence if the person dishonestly engages in conduct to which this section applies intending—
(a)     one of the following:
(i)to deceive another, or people generally, or to facilitate deception of another, or people generally, by someone else;
(ii)    to exploit the ignorance of another, or the ignorance of people generally, about the true state of affairs;
(iii)    to manipulate a machine or to facilitate manipulation of a machine by someone else; and
(b)     by that means—
(i)     to benefit him/herself or another; or
(ii)     to cause a detriment to another.
Maximum penalty: Imprisonment for 10 years.
Section 130 of the Act, which contains definitions applicable to Part 5, defines “benefit” to mean:
(a)a benefit of a proprietary nature; or
(b)a financial advantage; or
(c)a benefit of a kind that might be conferred by the exercise of a public duty in a particular way.
The meaning of “benefit”
The word “benefit” is defined in s 130 as a noun. It is used in s 140 as a verb. Although it was not the subject of argument before us, there may be a question whether the definition, in those circumstances, has any application to s 140. In the only other substantive sections in Part 5 of the Act in which the word appears[1] the word is used as a verb. However, it is used as a noun in the definition of “detriment” in s 130. As a defined noun the definition would therefore have some work to do. If the definition does have application to the word as used in s 140, s 140(4)(b)(i) must be read as “to gain a benefit for …” or “to obtain a benefit for …”. It might be argued that that would do unnecessary violence to the language of the section, that the phrase “to benefit him/herself or another” is undefined, and that the nature of the benefit intended is unrestricted.
[1] Section 139, 141 and 142.
I note in passing that for the purposes of Part 6 of the Act the word “benefit” is differently defined as a noun[2], and is used as a noun in ss 148, 150 and 151. It is also differently defined as a noun for the purposes of Part 7A of the Act[3] and used as a noun in s 260 and s 261. It is used as a noun but undefined in Part 7[4] and is the subject of an exclusionary definition in s 253. It could be said that there is a consistency in the Act in defining the word, where required, and using it as a noun. There are also other examples in the Act of using the word in its undefined meaning. While it is not necessary in this case to decide the point, it may be that the verb “benefit” as used in s 140 is undefined, and so has a much wider meaning in the context of this case than merely to confer a financial advantage. Nevertheless, as will be seen, the trial Judge directed the jury that in this case it had the narrower meaning of conferring a financial advantage. That is much narrower than an undefined meaning. Therefore, if the conviction can be supported by the jury being required to apply the narrower of two possible meanings, that can only have favoured the appellant, and no injustice will have been done.
[2] Section 145.
[3] Section 259.
[4] See s 249 and s 252.
The prosecution case
Count 1 of the information alleged that the appellant “… engaged in conduct by falsifying a document, being an Internet Transfer Receipt … and by that means intending to benefit himself”. Count 2 was that he “engaged in conduct by using a document known to be false, being an Internet Transfer Receipt … and by that means intending to benefit himself”.
In November 2003 a property at Mount George was listed for sale for in excess of $2 million. After the appellant’s de facto spouse, Ms Helena Collins, had spoken to the agent about the property, on 21 November the agent met Ms Collins and the appellant at the property and the appellant offered to purchase it for $2.5 million.
On 25 November 2003 the appellant and Ms Collins met the vendors. A contract was drafted reflecting a purchase price of $2.6 million with settlement to take place on 21 January 2004. The contract provided for a deposit of $100,000 payable on the next business day following the expiration of the “cooling off period” provided by s 5 of the Land and Business (Sale and Conveyancing) Act 1994. Under that provision the deposit was payable under the contract by the close of business on Monday 1 December 2003.
The contract was signed by the appellant on 25 November 2003 and by the vendors on the same day.
The following day Ms Collins bought two horses intending to keep them on the Mount George property. The appellant also took steps to arrange insurance on the property.
On 26 November 2003 the appellant and Ms Collins opened bank accounts with the Westpac Banking Corporation. The appellant said at that time that the accounts were being opened because he was to receive a large inheritance.
When the agent delivered the signed contract to the appellant on 26 November the appellant asked the agent if he could agist two horses on the property immediately. The agent replied that this could not be done. On the same day the appellant faxed an Internet Transfer Receipt to the agent to confirm that he had transferred the $100,000 deposit to the agent’s trust account. This was the document the subject of both charges.
On 27 and 28 November the agent advised the appellant that the funds had not been received. The appellant told the agent that it was an error at her end and not his problem.
On 1 December 2003 the agent telephoned the appellant regarding service of an intended notice of default. The appellant again asserted that the transfer of the deposit monies had taken place. The default notice was nevertheless delivered that day.
On 3 December 2003 the appellant sent a facsimile to the agent confirming that the deposit had been transferred and rejecting the default notice. The agent responded by saying that the deposit had not been received and that the contract was to be terminated unless the funds were received.
The case for the prosecution was that the Internet Transfer Receipt had been dishonestly falsified and used by the appellant with the intention of deceiving the agent so as to benefit himself by obtaining a financial advantage with respect to the alleged payment of $100,000 deposit.
The appellant called no evidence. For the purpose of the appeal the appellant accepted that the jury found that the appellant created and, in the relevant sense, used the false document. There was therefore no issue that the appellant had dishonestly engaged in conduct to which s 140 applied. The issue was whether he did so intending to deceive another and by that means intended to benefit himself.
The directions of the trial Judge
In instructing the jury as to the elements of the offence the trial Judge directed the jury that the word “benefit” meant “a benefit of a financial advantage”. The direction was therefore somewhat narrower than might be the case if the prosecution and the Judge had treated the word “benefit” as being undefined. The prosecution had put its case on the appellant having intended to obtain a financial advantage and the trial Judge directed the jury accordingly. In that sense, as mentioned above, the prosecution case and the Judge’s directions can only have been favourable to the appellant.
Counsel for the prosecution addressing the jury had suggested that there were other possible inferences to consider besides that of the accused intending to benefit himself in the relevant sense. Those possibilities included that the appellant was embarrassed and was trying to gain time and that he was trying to please Ms Collins.
The trial Judge mentioned other possible inferences for consideration. They were that the appellant was embarrassed to tell his de facto wife that he did not have the money to pay the deposit, that he might have believed that he had the funds from a MasterCard transaction, that he was waiting upon the receipt of the inheritance money and that he was seeking to buy time to put something else in place.
When directing the jury on this element of the offences, the trial Judge said:
You come to the fourth element: that in so doing, that is by deceiving Brock Real Estate, he intended to benefit himself. You know in his letter of 2 December to Ms Hunt he was quite adamant as to the payment. Did he intend to obtain some benefit? Did he want to be in a position to say something like ‘You have $100,000 of my money’. Look carefully at the letter, P17, when you consider this element.
I repeat that what is important is what was intended at the time all of this occurred. There is no suggestion in the Crown case that at the end of the day he would actually have received the benefit of $100,000 in cold hard terms.
You may think that if the accused intended to deceive Brock Real Estate then he would do so for no purpose other than to obtain a benefit. You may think that the two concepts go together, for example, like, in bookkeeping terms, a credit and a debit. It is a matter for you to consider and determine.
A little later the trial Judge said:
You will recall that Mr Niarchos [counsel for the accused] drew your attention to the words in each count ‘by that means intended to benefit himself’ – those were the words appearing at the end of each count on the information … Mr Niarchos accentuated the three words ‘by that means’. He then spoke to you for some time about the impossibility of the accused, at the end of the day, benefiting in a financial way at all.
He took you through the parts of the contract and spoke of the process by which contracts for the sale of land are completed. He suggested that there had never been compliance with the contract terms and so no benefit, no financial advantage, could accrue in terms of the sum of $100,000.
I repeat what I said to you earlier. Whether there was no possibility that the accused, at the end of the contract, or at some time in the future, would actually receive a benefit in that sum is nothing to the point. What is important is what the accused intended at the time he created and sent this receipt, if that is what you are satisfied he did.
The Judge reminded the jury that they must look to the appellant’s intent at the time of creating or using the document. He later said:
It has been suggested to you that at the end of the day the accused would not have benefited by $100,000. I repeat again, the end of the day is not relevant to what intention you ascribe to the accused at the relevant time in accordance with the elements.
After they had retired the jury asked the following questions:
1.Is the use of a hypothetical $100,000 to secure the contract of a house classed as a financial benefit?
2.Or is a financial benefit only achieved if it reduces the final price required to be paid to gain ownership of the house?
Before answering the question the Judge clarified with the jury that where they referred to “financial benefit” they meant “financial advantage”. He then answered the questions as follows:
Can I just start by reading to you something that I said in the course of my summing up when I was talking to you about intention, because that is the crux of this case; intention.
It is important that you appreciate that this case is about the accused’s intention at the time he did the things alleged, if you are satisfied that that is what he did.
It is often said that what a man does is the best evidence of the purpose he had in mind. So intention is a state of mind.
It is necessary to prove what was the state of mind of the accused when he did this thing, if you are satisfied that’s what he did. What might have happened days or weeks down the track does not matter. If ultimately he was never going to actually receive a credit of $100,000 of (sic) an acknowledgement that he paid a deposit is nothing to the point. What is important for you to consider is what was his intention at the time he did the relevant things; in this case create or falsify a document. Here you must use your commonsense as is applied to the evidence that is acceptable to you.
The expression ‘financial advantage’ is not defined in the Act like these other words that I have given you are. So you have to use your own experience as to what constitutes a financial advantage. You have to use that in the context of what I have said to you about intention and how it applies here. That is, the intention that you are satisfied the accused had, if he did, at the time he did what you are satisfied he did. Whether you decide that he intended to obtain a financial advantage, even though it was impossible for him to obtain, or whether you decide that he was not seeking to obtain a financial advantage, but was in fact seeking to delay the day, either, for example, for the reason that I gave you when you came back, as Mr Niarchos said, just to gain a few more days, is a matter for you. What you must focus on is the intention that you find the accused had at the time he did whatever you are satisfied he did.
In relation to the second question, again it is important to consider what was the intention of the accused in relation to a possible financial advantage at the time he did it. You know that it was impossible of achievement. He was never going to get $100,000 hard cash. The Crown said it to you and I have said it to you today. So irrespective of the impossibility of actually getting the money or a credit for the money down the track, which is an expression I think I used this morning, what you must consider was what his intention was at the time he did whatever you are satisfied he did.
That is where your experience and commonsense as 12 different members of the community bringing your experience here is important. So the completion of the contract, the gaining of the ownership at the end of that process, as described to you by Mr Niarchos, what happens when you buy a house – and perhaps a good many of you know about that – does not have a lot of relevance. What is relevant is earlier when these deeds were done. That intention you pick up from the surrounding circumstances. For example, if you are satisfied that it was done, the fact that it was done, the letter that was written on 2 December and sent to Brocks saying ‘I’ve done it, I’ve done it. Check up, it’s not my fault, it is your fault’ and all those sorts of things, and the other things I have not mentioned here, go onto the scales and you have to make the determination of the sort that I referred to this morning and have referred to now. But the time frame is at the time it was done, it is a matter of that intention. [Emphasis added. See below]
Consideration of the appeal – the Judge’s directions
Nothing could be clearer than that the Judge recognised and told the jury that, at the end of the day, the appellant could not in fact derive a financial advantage by way of credit of $100,000 in the purchase of the house. That was a relevant fact. The Judge was also equally clear that what the jury had to consider was the appellant’s intention at the time of falsifying the document and at the time of using it (by transmitting it to the agent). There was no error in that direction. Other possible reasons for falsifying and using the document relevant to proof of the appellant’s intention at the time had been mentioned by counsel and the Judge. It was left as a matter on which the jury had to be satisfied beyond reasonable doubt.
It did not follow that, because the obtaining of a financial advantage by way of a credit of $100,000 was impossible, the appellant could not possibly have had the necessary intention at the time of engaging in the conduct. The issue of impossibility may be a relevant consideration in deciding whether the appellant had the relevant intention. However, merely because it may have been impossible to have obtained the relevant financial advantage does not mean that the appellant could not have had the relevant intention at the time of falsifying and then using the false document.

Because the issue of impossibility was relevant in deciding whether the appellant had the necessary intention at the time, I consider that two passages in the trial Judge’s charge to the jury could have been misleading. Those passages were:
Whether there was no possibility that the accused, at the end of the contract, or at some time in the future, would actually receive a benefit in that sum is nothing to the point.
and:
I repeat again, the end of the day is not relevant to what intention you ascribe to the accused at the relevant time …
Those directions were given in the course of directing the jury as to proof of the appellant’s intention. They could have been taken to mean that the jury must dismiss the question of impossibility of obtaining a financial advantage from their consideration of the appellant’s intention. It was correct to direct the jury that the impossibility of deriving a financial advantage did not mean that the appellant could not be found guilty of the offences, but in my opinion that fact was nevertheless relevant to a consideration of the accused’s intention at the time.
However, I consider that, if there was a false impression created by the principal summing up, it was corrected in the course of answering the jury’s questions. Once again, the trial Judge was at pains to stress the need to consider only the accused’s intention to obtain a financial advantage at the time of and by means of the relevant conduct.
The effect of what the trial Judge said in the fourth paragraph of the answer as quoted above was that the impossibility of deriving a financial advantage would not require a verdict of not guilty. In my opinion, that was correct. I consider that the question of impossibility was placed in its proper context in the later passages I have emphasised in the answers. In effect the Judge was there saying that the question of impossibility was not irrelevant to proof of the appellant’s intention, but neither was it determinative. In my opinion, that was correct.
After giving a short redirection after the jury had retired, the jury had been out for about 2½ hours before the Judge received the questions. When the answers to the questions had been given, the jury returned with the guilty verdicts after about 25 minutes. The verdicts were therefore reached within a reasonably short time after what I consider was a correct direction.
I do not consider that the grounds based on the trial Judge’s directions to the jury are made out.
Unsafe and unsatisfactory verdicts
Mr Niarchos, counsel for the appellant, argued that, in a circumstantial case such as this, it could not be asserted that deriving a benefit in the nature of a financial advantage was the only rational inference that could be drawn from the evidence. The jury could not be satisfied that there was no other reasonable hypothesis or explanation for the appellant’s conduct.
The jury was carefully directed about the use of circumstantial evidence and the degree of satisfaction required before a guilty verdict could be returned.
In the absence of evidence from the defendant, there were many possibilities that could be conceived, some more fanciful than others, as to what the defendant intended by the conduct. However, at the end of the day it was a matter for the jury to decide based on the context in which the relevant conduct was set. There was evidence on which the jury could conclude that the only reasonable inference open was that by his conduct the appellant intended, at that time, to gain a financial advantage for himself. There were a number of factors which could properly lead the jury to that conclusion. Principal among them was the effort the appellant went to in creating and using the Internet Transfer Receipt in the first place to create the impression that he intended to proceed with the contract, followed by his indignation when questioned by the agent as to the funds being transferred and his sending a further fax insisting that the money was paid, together with his later rejection of the default notice.
Other proved actions were consistent with his intention to complete the contract while maintaining that the deposit had been paid. He had arranged insurance for the property. He had given an assurance to his de facto wife of his proceeding with the purchase of the property sufficient to justify her purchase of the two horses. He had offered a job at the Mount George property to a person associated with the vendor of the horses purchased by Ms Collins. He had asked the agent about the possibility of agisting the two horses prior to settlement.
In those circumstances it was open to the jury to be satisfied that there was no other reasonable hypothesis or explanation for the appellant’s conduct than that he intended, at the time of the conduct and by reason of it to gain a financial advantage, whatever may later have happened to thwart that intention. In my opinion, the appellant does not succeed on this ground.
Conclusion
It follows that in my opinion the appeal must be dismissed.
ANDERSON J I agree that the appeal should be dismissed for the reasons given by Bleby J.