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as a joint venture - when the monies were transferred into the account, the appellant withdrew, or caused to be withdrawn, money from the account for purposes other than that of the joint venture to the detriment of the victim.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

1. 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.

2. 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 all counts.

3. The submission gives rise to two issues.  First, whether in the circumstances it was open to the jury to find that the dishonest deception caused a detriment as alleged by the Director of Public Prosecutions (DPP).  The second issue is whether the Judge’s directions on the question of causation were adequate.

   Legislation

4. Section 139 of the CLCA relevantly provides:

   139    Deception

   A person who deceives another and, by doing so -

   (a)     dishonestly benefits him/herself or a third person; or

   (b)     dishonestly causes a detriment to the person subjected to the deception or a third person,

   is guilty of an offence.

   Relevant definitions are found in s 130. They are as follows:

   deceive means to engage in deception;

   deception means a misrepresentation by words or conduct and includes -

   (a)     a misrepresentation about a past, present or future fact or state of affairs; or

   (b)     a misrepresentation about the intentions of the person making the misrepresentation or another person; or

   (c)     a misrepresentation of law;

   detriment means -

   (a)     a detriment of a proprietary nature; or

   (b)     a financial disadvantage; or

   (c)     loss of an opportunity to gain a benefit; or

   (d)     a detriment of a kind that might result from the exercise of a public duty in a particular way;

5. 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

6. For present purposes there is no dispute about the relevant facts.  Accordingly, I can state them briefly, and in a relatively general way.

7. 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. 

8. 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.

9. 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.

10. No agreement was ever made by Mr Donjerkovic with the owner of the property for its purchase or for its redevelopment.  No work was ever done on the property by Mr Donjerkovic.  Mr Donjerkovic never said to Mr Doyle, or suggested, that the money in the joint venture account might be used for a purpose other than the redevelopment of the Marryatville property. 

11. The first five counts related to withdrawals made by Mr Donjerkovic from the joint venture account, or made by Mrs Donjerkovic at his direction and as his agent.  Withdrawals were made between about 14 December 2005 and 6 January 2006.  These withdrawals, with other generally smaller and uncharged withdrawals, used up the $50,000. 

12. The particulars of each count were to the same effect.  They were that between 7 November 2005 (the day before Mr Donjerkovic proposed to Mr Doyle the Marryatville project) and a later date (a date in December 2005 or January 2006) the day after the relevant withdrawal, Mr Donjerkovic deceived Mr Doyle “… by pretending that funds were required to develop a property at .. Marryatville and by doing so dishonestly caused a detriment, the nature of the detriment being a financial detriment …”.  The financial detriment was identified as the amount of the relevant one of the five withdrawals.  These withdrawals occurred between 14 December 2005 and 6 January 2006.

13. On 7 February 2006, Mr Donjerkovic emailed Mr Doyle.  He asked Mr Doyle to transfer to the joint venture account the balance of the funds that he had agreed to provide.  Mr Doyle was aware that the initial $50,000 had been spent.  In an email to Mr Doyle from Mr Donjerkovic, Mr Doyle referred to “the property” and to “Our JV”.  Mr Doyle transferred a further $50,000 to the joint venture account on 13 February 2006 and $500 on 14 February 2006.  On 17 February 2006 Mr Donjerkovic, or his wife at his direction, transferred the whole amount to a company controlled by Mr Donjerkovic.  This transfer was the subject of count six.

14. All of the money was applied by Mr or Mrs Donjerkovic (as the agent of the former) for purposes other than the joint venture.  It was quite some time before Mr Doyle realised that the money had not been used for the purposes of the joint venture, and that there was no relevant agreement with the owner of the Marryatville property. 

15. Having regard to the evidence, to the Judge’s directions and to the jury’s findings, the jury must have been satisfied of the following matters beyond reasonable doubt.

16. First, that Mr Donjerkovic deceived Mr Doyle, telling him, and knowing it to be false, that the money to be transferred by Mr Doyle to the joint venture account would be used by Mr Donjerkovic for the renovation of the Marryatville property. Second, that the deception began before Mr Doyle made the first transfer to the joint venture account. Third, that from time to time after the first transfer up to the time of the second transfer (and, as it happens, after that) Mr Doyle repeated the deceptive statement, expressly or by implication. Also, that at no stage did Mr Donjerkovic tell Mr Doyle that money to be transferred by him to the joint venture account would not be or had not been used on the property for the purposes of the joint venture. Fourth, the jury must have been satisfied that at the time of each withdrawal from the joint venture account the deception was “operative” (the Judge’s term). That is, that at the time of each withdrawal Mr Doyle continued to believe that if money was withdrawn by Mr Donjerkovic, or at his direction, from the joint venture account, it was withdrawn for the purposes of the joint venture. At all times Mr Donjerkovic knew that this was not true. Fifth, that Mr Doyle suffered a “detriment” for the purposes of s 139 of the CLCA. The detriment alleged was the withdrawal of funds from the joint venture account on six occasions, for the purpose of applying the money to a purpose other than the joint venture project. Sixth, that Mr Donjerkovic acted dishonestly when he asked Mr Doyle to make the two transfers of funds to the joint venture account, and when Mr Donjerkovic made or directed the transfer of funds from the joint venture account to other projects or for other purposes. Seventh, the jury must have been satisfied that Mr Donjerkovic’s deception caused Mr Doyle to suffer the detriment (the unauthorised transfer or withdrawal of funds from the joint venture account and the use for purposes other than the joint venture).

    The issue on appeal

17. Mr Heffernan, counsel for Mr Donjerkovic, submits that the Judge should have directed the jury to acquit Mr Donjerkovic on each count.  The Judge should have done so because on the facts and findings above (other than the seventh finding) it was not open as a matter of law for the jury to find that Mr Donjerkovic’s deception of Mr Doyle (for these purposes not now disputed) caused the detriment (for these purposes not now disputed) identified by the Judge.

18. Mr Heffernan submits that while the deception caused Mr Doyle to transfer the money to the joint venture account, it had no relevant causal effect thereafter.  He put this submission in a number of different ways.  He submits there was not a “direct link between the deception and the detriment”.  The detriment was not “sufficiently proximate” to the deception.  The detriment was not caused by the deception but by the act of Mr Donjerkovic in transferring, or directing a transfer, of the money from the joint venture account to the accounts or purposes determined by Mr Donjerkovic.  The detriment was not “sufficiently proximate” to the deception, nor was there “a cogent link”, between the deception and the detriment.

19. So, in the end, the submission by Mr Heffernan is that as a matter law it was not open to the jury to be satisfied that the deception by Mr Donjerkovic caused the detriment to Mr Doyle upon which the prosecution relied.

    Causation

20. Whether the proved deceit by Mr Donjerkovic caused the proved detriment to Mr Doyle was to be decided by the jury as a question of fact.  The Judge left it to the jury. 

21. Of course, if it was not open to the jury to conclude that the deception caused the detriment, the Judge should have directed the jury accordingly. 

22. There is no need to cite authority for the proposition that it was not necessary for the prosecution to prove that the deceit was the sole or only cause of the detriment, or even that it was the main cause. 

23. In Royall v The Queen (1990) 172 CLR 378 five members of the High Court approved of the following statement by Burt CJ in Campbell v The Queen [1981] WAR 286 at 290:

    It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their commonsense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

    See Mason CJ at 387, Deane and Dawson JJ at 411-412 and Toohey and Gaudron JJ at 423.  As Deane and Dawson JJ commented at 412:

    It may not be possible to take the matter usefully much beyond that.

24. Royall raised the question of causation in a very different context, but there is no reason to think that the statement by Burt CJ is to be treated as limited to the context in Royall. Similarly, Toohey and Gaudron JJ commented at 423:

    In particular, there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased’s death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Reg. v. Butcher [1986] V.R. 43, at pp. 55-56; Reg. v. McKinnon (1971) 124 C.L.R. 107. In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.

25. Four members of the Court took the approach that the question was whether the relevant connection was “sufficiently substantial”: Deane and Dawson JJ at 412, Toohey and Gaudron JJ at 423.  In Royall McHugh J differed from the other members of the Court on the question of whether or not the Judge’s directions were correct. But he made the following statement of principle which, in my opinion, is not inconsistent with the approach of the other members of the Court, nor inconsistent with such binding authority as there is on the question. He said at 441:

    Causation is a question of fact: Reg. v. Evans & Gardiner [No. 2] [1976] V.R. 527, at p. 527; Reg. v. Pagett (1983) 76 Cr. App. R. 279, at pp 290-291. To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett (1983) 76 Cr. App. R., at p 290. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of commonsense, an ordinary person would not hold an accused’s act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence: cf. Campbell v. The Queen [1981] WAR 286, at p. 290; (1980) 2 A. Crim. R., at p. 161.

26. 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

27. 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. 

28. 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.

1. 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.

2. 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. 

3. 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.

4. For those reasons I reject the submission that it was not open to the jury to find that the detriment alleged in relation to each count was caused by the deceit practised by Mr Donjerkovic.

   The Judge’s directions

5. Mr Heffernan made no complaint about the Judge’s directions relating to causation, other than his submission that the Judge should have directed the jury to acquit.

6. 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

7. 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.

8. VANSTONE J:     I would dismiss the appeal for the reasons given by the Chief Justice.

9. BLUE J:     I would dismiss the appeal.  I agree with the reasons of the Chief Justice.