R v Donjerkovic - [2012] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DONJERKOVIC
[2012] SASCFC 2
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Blue)
11 January 2012
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS
The appellant was found guilty by a jury on six counts of deception, contrary to the Criminal Law Consolidation Act 1935 (SA) s 139 - the appellant appealed against convictions - the appellant misrepresented to the victim to transfer monies into an account for the purposes of purchasing and developing residential property as a joint venture - when the monies were transferred into the account, the appellant withdrew, or caused to be withdrawn, money from the account for purposes other than that of the joint venture to the detriment of the victim.
The issue on appeal was whether the deception alleged by the prosecution, and found to be proved by the jury, caused the detriment to the victim as alleged by the prosecution - this required the Court to consider whether in the circumstances it was open to the jury to find that the dishonest deception caused a detriment as alleged by the proscution - whether the Judge's directions on the question of causation were adequate.
Held: As a matter of commonsense, and bearing in mind that the question of causation arises for the purpose of attributing criminal responsibility, it was open to the jury to find as a matter of fact that the appellant's deception caused the detriment to the victim when the funds were transferred from the joint venture account - the Judge's directions on causation were adequate in the circumstances.
Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 130, s 139; Criminal Law Consolidation (Offences of Dishonesty) Act 2002 (SA) s 4, referred to.
Royall v The Queen (1990) 172 CLR 378; Campbell v The Queen [1981] WAR 286, discussed.

R v DONJERKOVIC
[2012] SASCFC 2
Court of Criminal appeal: Doyle CJ, Vanstone and Blue JJ

DOYLE CJ: Mr Donjerkovic was found guilty by a jury on six counts of the offence of deception, contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). All counts were inter-related. Mr Donjerkovic appeals against the convictions. Permission to appeal was granted by a single Judge of this Court.
The issue on appeal is whether the deception alleged by the prosecution, and found to be proved by the jury, caused the detriment relied upon by the prosecution to complete the offence. Mr Heffernan submits that as a matter of law it was not open to the jury to find that the detriment was caused by the deception. He submits that the Judge should have directed the jury to acquit on…

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.

Continue reading R v Donjerkovic

Details

AGLC: R v Donjerkovic [2012] SASCFC 2
Case: [2012] SASCFC 2
Decision Date: 11 January 2012

CaseChat Overview and Summary

The appellant, Mr Donjerkovic, was convicted by a jury on six counts of obtaining property by deception, contrary to section 139 of the *Criminal Law Consolidation Act 1935* (SA). The appellant appealed these convictions to the Supreme Court of South Australia. The dispute centred on whether the deception alleged by the prosecution had caused the detriment suffered by the victim, Mr Doyle, as required for a conviction under the Act.

The central legal issue before the Court was whether the jury’s finding that the appellant’s deception caused the victim’s detriment was open to them on the evidence. This required the Court to consider the adequacy of the trial judge's directions to the jury on the question of causation, specifically whether the deception was operative at the time of the withdrawals from the joint venture account and whether it led to the victim’s loss.

The Court reasoned that the appellant had deceived Mr Doyle by representing that funds transferred into a joint venture account would be used solely for the improvement and sale of a specific property. In reality, the appellant had no such arrangement and intended to use the funds for his own purposes. The Court found that the appellant’s continued misrepresentations, even after the initial transfer of funds, fostered Mr Doyle’s belief and caused him to leave the money at the appellant’s disposal. Applying a common-sense approach to causation for the purposes of criminal responsibility, the Court concluded that the appellant’s deceit was the means by which he gained access to the funds and was therefore the cause of the detriment suffered by Mr Doyle. The Court held that the trial judge’s directions on causation, while brief, were adequate, as they directed the jury to consider whether the deception was still operative at the time of each withdrawal and to give the word "caused" a broad meaning.

The appeal was dismissed, with the Court finding that the jury’s verdict was open to them on the evidence and that no miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

Section 139 of the CLCA came into operation on 5 July 2003. It is part of a package of legislation reshaping offences grouped under the heading of “dishonesty”: see the Criminal Law Consolidation (Offences of Dishonesty) Act 2002 (SA), s 4. The package appears to have been influenced by Chapter 3 of the final report of the Model Criminal Code Officers Committee (MCCOC): Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Parliament of New South Wales, published in 1995. Chapter 3 dealt with “theft, fraud, bribery and related offences”. As it happens, s 139 of the CLCA departs from s 17.2 as proposed by the Model Code recommended by MCCOC. But this case does not call for any analysis of the package as a whole. The issue is that of causation.Facts For present purposes there is no dispute about the relevant facts. Accordingly, I can state them briefly, and in a relatively general way. In March 2005, Mr Doyle agreed to enter into a joint venture with Mr Donjerkovic. The purpose of the joint venture was the redevelopment or improvement and sale of residential premises in Adelaide. The joint venture involved the purchase of residential properties using funds to be provided by Mr Doyle, and the improvement or renovation of those properties by Mr Donjerkovic, again using funds provided by Mr Doyle. The proposal was that the improved or redeveloped properties would be sold and the profit on resale would be divided between Mr Doyle and Mr Donjerkovic. The joint venture was to begin when a suitable property was identified by Mr Donjerkovic. In April 2005, at the request of Mr Donjerkovic, Mr Doyle opened a bank account (the joint venture account) for the purposes of the joint venture. The account was in the name of Noderg Pty Ltd, a company whose shares were held by Mr Doyle and Mrs Doyle. Mr Donjerkovic asked Mr Doyle to arrange for Mr Donjerkovic’s representative to be a signatory to the account, and for Mrs Donjerkovic to have access to certain facilities associated with the account. Mr Doyle did as requested. The effect of this was that Mr Doyle, Mr Donjerkovic and Mrs Donjerkovic could withdraw funds from the account. The case proceeded on the basis that anything Mrs Donjerkovic did was done as agent for Mr Donjerkovic. The plan, it was clear, was that funds advanced by Mr Doyle for the purposes of the joint venture would be paid into the joint venture account and would be drawn on by Mr Donjerkovic, or at his direction. It is clear that Mr Donjerkovic represented to Mr Doyle that funds paid into the joint venture account would be used for, and only for, the purposes of the joint venture. The account was established in April 2005. On 8 November 2005, Mr Donjerkovic told Mr Doyle that he had identified a property, suitable for the purposes of the joint venture at Marryatville, an Adelaide suburb. The property was to be renovated and sold pursuant to the joint venture arrangement. Mr Doyle agreed to provide $105,000 for these purposes. Mr Doyle believed that the money would be used to renovate the property. On the findings of the jury, that belief was fostered by Mr Donjerkovic, expressly and by implication. Mr Donjerkovic asked Mr Doyle to provide an initial amount of $50,000, saying that work on the property was about to begin within a few days. On 14 November 2005, Mr Doyle transferred $50,000 into the joint venture account. The property in question existed. Mr Donjerkovic had had some discussions with the owner. But at no stage did Mr Donjerkovic reach an agreement with the owner for the purchase of the property, or for its redevelopment and renovation. For a few weeks nothing happened, from Mr Doyle’s point of view. On 5 December 2005, Mr Doyle emailed Mr Donjerkovic saying that the $50,000 was still in the account, and suggesting that he might withdraw the money and put it into an account where it would save Mr Doyle some interest expense on his mortgage. On 7 December 2005, Mr Donjerkovic replied by email asking Mr Doyle to leave the money in the account. Having regard to the evidence, and to the jury’s findings, the jury must have been satisfied that at no stage did Mr Donjerkovic tell Mr Doyle that he had not contracted to purchase the property, nor made an arrangement with the owner for its renovation. By implication, Mr Donjerkovic continued to represent that the money was required for, and would be used for, redevelopment of the property at Marryatville.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The relevant part of the Judge’s directions is brief and to the point. He told the jury that the prosecution must prove that the accused deceived Mr Doyle, that the alleged deception was that Mr Doyle’s money was to be applied to the Marryatville property, that the prosecution alleged that the deception was still “operative” at the time of each withdrawal from the bank, and that the prosecution alleged that Mr Donjerkovic well knew by mid-November that he had no arrangement with the owner of the Marryatville property. He told the jury that the deception had to be “still operating” at the time of each withdrawal from the joint venture account. He then directed them as to the meaning of “detriment”. He said:You will notice that in describing this second element I have referred to the need to prove that the proved deception caused a detriment. The word “caused” is to be given a broad meaning. In the immediate sense the detriment was caused or brought about by the withdrawals, transfers and cheques drawn against the Noderg bank account. The prosecution alleges that those withdrawals, transfer and cheques were misuses of that money for purposes other than the development of the Marryatville property. If the money is used by the accused’s wife because he gave her a general direction to use it for Jayco’s [a company controlled by Mr Donjerkovic] bills or he directed her for each transaction, each could be a relevant cause of the loss of Mr Doyle’s money.The Judge could have said a little more to help the jury. But, in the end, as Burt CJ said, he has told them to decide the question for themselves, by implication using their commonsense. There was no need, in my opinion, to spell out that the purpose of the enquiry was to attribute criminal responsibility, although that might usefully have been said. The Judge drew a contrast between the immediate cause of the detriment (the taking of the money) and, by implication, the cause in a broader sense (the deceit). At the end of the day, there was not much to be gained by using other expressions such as “direct cause”, or “proximate cause”, or “significant cause” or other such expressions. On other facts it might have been necessary to say more about causation, but in this case the issue was plain. Could the deceit be treated as the cause of the detriment? In all of the circumstances, there was no need to say any more.Conclusion The Judge was not obliged to direct the jury to acquit Mr Donjerkovic. To have directed the jury that way would have been an error. The directions that the Judge gave the jury were adequate. There has been no miscarriage of justice. The appeal should be dismissed. VANSTONE J: I would dismiss the appeal for the reasons given by the Chief Justice. BLUE J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

The other thing that must always be borne in mind is that the issue is whether causation is made out for the purposes of attributing criminal responsibility for the relevant consequence.Consideration of the issues on appeal I do not accept Mr Heffernan’s submission. I approach the issue using commonsense, doing my best to avoid assuming the answer to the question that arises, and doing my best to avoid using the formula “commonsense” as a substitute for reasoning and reflection. Mr Donjerkovic deceived Mr Doyle about the manner in which Mr Donjerkovic would use money transferred by Mr Doyle to the joint venture account. He told Mr Doyle, knowing it to be false, that he would use the money in the joint venture account improving the property at Marryatville. The deception was intended to cause Mr Doyle to make the money available to Mr Donjerkovic, so that he could use it dishonestly and contrary to the joint venture arrangement. The deceit practised by Mr Donjerkovic persuaded Mr Doyle to put the money at Mr Donjerkovic’s disposition. To my mind, as a matter of commonsense, and for the purpose of attributing criminal responsibility, it was appropriate to conclude that the deception was the cause of the later detriment. That the deceit was the means by which Mr Donjerkovic was able to draw on the funds in the joint venture account appears quite clearly from the circumstances of count six. Within three days of the second transfer of funds to the joint venture account, Mr Donjerkovic took the whole $55,000. The gap between the transfer of funds and the taking of money was greater in the cases of the first five counts, but in my opinion that is of no particular relevance. Moreover, the deception was continued after the first transfer. Mr Donjerkovic did not tell Mr Doyle that he had not made any agreement with the owner of the property. The circumstances indicate that had Mr Doyle known that, he would have taken steps to retrieve his money, or what was left of it, or to prevent its misuse. This is strongly supported by Mr Doyle’s suggestion on 5 December 2005 that as the funds had not been drawn on, he might return the funds to an account where the availability of the funds would save him interest. But in any event, it is clear that the initial deceit by Mr Donjerkovic continued to affect the mind of Mr Doyle, causing him to leave the funds in the joint venture account and at Mr Donjerkovic’s disposal. As a matter of commonsense, and bearing in mind that the question of causation arises for the purpose of attributing criminal responsibility, I am quite satisfied that it was open to the jury to find as a matter of fact that the deceit by Mr Donjerkovic caused the detriment that Mr Doyle suffered, when each of the six transfers of funds from the joint venture account was made. Indeed, in my opinion the finding that the jury made was almost inevitable. To say that is not to deny that the immediate cause of the detriment was, as the Judge pointed out to the jury, the act of Mr Donjerkovic, or Mrs Donjerkovic at his direction, in transferring or withdrawing the funds. But this was nothing more than the consummation of a deceit practised by Mr Donjerkovic on Mr Doyle. It is what Mr Donjerkovic always intended to do, knowing that it was dishonest, to obtain money for his own purposes.