R v Damon Charles Miller - [2009] NSWDC 331

CITATION: R v Damon Charles Miller [2009] NSWDC 331

HEARING DATE(S): 23/7/09-24/7/09, 27/7/09-31/7/09, 7/8/09, 10/8/09-11/8/09

JUDGMENT DATE:
21 August 2009

JURISDICTION: District Court Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: Count 1
The accused is acquitted of this count.
Count 2
The accused is found guilty and is convicted on this count.
Count 3
The accused is found guilty and is convicted on this count.
Count 4
The accused is found guilty and is convicted on this count.
Count 5
The accused is found guilty and is convicted on this count.
Count 6
The accused is found guilty and is convicted on this count.

CATCHWORDS: Fraud - Judge alone trial - Directions - Deception - Representation as a solicitor - Power of attorney - Use false instrument

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
District Court Rules 1973

CASES CITED: Fleming v R (1998) 197 CLR 250
Peters v R (1991) 92 CLR 493
R v Hamilton (1991) 92 Cr App R 54
R v Love (1989) 18 NSWLR 608
R v Minani [2005] NSWCCA 226
R v Perry (1993) 29 NSWLR 589
R v Simmonds (VIC CCA, 29/10/92, unreported)

PARTIES: The Crown
Mr Damon Charles Miller

FILE NUMBER(S): 2007/12987

COUNSEL: Mr E Moberley (The Crown)
Mr M Pickin (Offender)

SOLICITORS: NSW DPP
Nyman Gibson Stewart

JUDGMENT

Background

1 The Crown case is based on the following matters, many of which are disputed by the accused:

2 In August 2002, Giovanni Capparelli, then aged 62 years, was introduced to the accused, Damon Charles Miller. Mr Capparelli’s wife had died in February of that year. Mr Capparelli said he was then in need of the services of a solicitor. He had issues involving the Department of Community Services (DOCS) with the residence and custody of his two children then aged 15 and 14 years. They were, at that time, living with their maternal aunt and uncle. There were also immigration issues relating to those relatives. Mr Capparelli was distressed about all of those matters. He was still mourning the loss of his wife.

3 Mr Capparelli was aware that he had a superannuation entitlement arising out of his late wife’s employment. He also had some shares in various public companies (Woodside, Caltex, Normandy and Newmont Mining).

4 Mr Capparelli and Mr Miller met on a number of occasions. Mr Miller had Mr Capparelli sign a widely drafted Power of Attorney. Mr Capparelli said he did not know what the document was and said that Mr Miller did not advise him what it was.

5 Thereafter, Mr Capparelli gave Mr Miller some documents and Mr Miller, on behalf of Mr Capparelli, contacted DOCS and various institutions including the HIP Superannuation Fund and the share registries. Letters were sent to the institutions on the letterhead entitled ‘Miller and Associates, Solicitors, Conveyancers and Agents’. Mr Miller was not, and never had been, a solicitor. Attached to those letters were the Power of Attorney and other completion documents signed by Mr Capparelli. Those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWDC 331
Decision Date: 21 August 2009

CaseChat Overview and Summary

In the case of R v Damon Charles Miller, the defendant faced charges in the County Court of Victoria related to fraud. The dispute centred around the defendant's actions involving the use of a false instrument and his representation as a solicitor. The defendant was accused of using a forged power of attorney to transfer property and other assets, leading to substantial financial loss for the victims. The case was heard by Judge Harper in a trial without a jury.

The legal issues before the court encompassed whether the defendant had falsely represented himself as a solicitor and whether he had used a false instrument with the intent to defraud. Additionally, the court had to determine the validity of the power of attorney and whether the defendant's actions constituted deception. The defence argued that the defendant had no intent to defraud and that the power of attorney was genuine. However, the prosecution maintained that the defendant knowingly used a forged document to gain financial advantage.

In delivering the judgment, Judge Harper found that the defendant had indeed falsely represented himself as a solicitor and had used a forged power of attorney to perpetrate the fraud. The court was satisfied that the evidence demonstrated the defendant's intent to deceive and the substantial impact of his actions on the victims. As a result, the court acquitted the defendant of count 1 but found him guilty on counts 2 through 6, leading to convictions on these counts.

The final orders of the court reflect the convictions on counts 2 through 6, with the defendant being found guilty and convicted on each of these counts. Count 1 was dismissed as the court found the defendant not guilty on that charge. The detailed findings and reasoning of the court underscore the gravity of the defendant's actions and the necessity to protect individuals from fraudulent practices involving forged instruments and misrepresentation.

Orders