R v Fischetti & Caggiano
[2003] ACTCA 5
THE QUEEN v FRANK FISCHETTI and MARIA CAGGIANO
[2003] ACTCA 5 (31 March 2003)
CATCHWORDS
CRIMINAL LAW – appeal against orders discharging jury from returning a verdict and recording verdict of acquittal – conspiracy to commit an offence against a law of the territory, namely the theft of approximately $150,000 – trial judge found no material capable of supporting actual allegation made hence prosecution on indictment as presented could not possibly succeed.
PRACTICE AND PROCEDURE – application for verdict of acquittal prior to presentation of Crown case and empanelment of jury – cancellation of jury panel summoned for the trial with consent of all counsel – power to direct the entry of a verdict of acquittal – jury must be empanelled for trial judge to validly make an order for acquittal under s 287 Crimes Act 1900.
Supreme Court Act 1933 (ACT), s 68B
Crimes Act 1900 (ACT), ss 261, 281, 287
Evidence Act 1995 (Cth) s 191
R v Dorking Justices; Ex parte Harrington [1983] QB 1076
Davern v Messel (1984) 155 CLR 21
Doylev R (1987) 30 A Crim R 379
Brown v R (1986) 160 CLR 171
Doney v R (1990) 171 CLR 207
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 10 - 2002
No. SCC 162-3 of 1998
Judges: Higgins CJ, Spender and Cooper JJ
Court of Appeal of the Australian Capital Territory
Date: 31 March 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 10 - 2002
) No. SCC 162-3 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:FRANK FISCHETTI
AND:MARIA CAGGIANO
Respondents
ORDER
Judges: Higgins CJ, Spender and Cooper JJ
Date: 31 March 2003
Place: Canberra
THE COURT ORDERS THAT:
The orders of acquittal are set aside.
The proceedings be remitted to Crispin J, to proceed according to law and having regard to these reasons.
IN THE SUPREME COURT OF THE ) No. ACTCA 10 of 2002
) No. SCC 162-3 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:FRANK FISCHETTI
AND:MARIA CAGGIANO
Respondents
Judges: Higgins CJ, Spender and Cooper JJ
Date: 31 March 2003
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The respondents were accused of conspiracy to steal $150,000.00 from the St George Bank Ltd.
The appellant (represented by the Director of Public Prosecutions (ACT) (DPP)), on 6 March 2002, presented an indictment to that effect to which the respondents entered a “not guilty” plea.
The respondents, by their counsel (Mr Hart for Mr Fischetti and Mr Corr for Ms Caggiano), then submitted that the facts intended to be proved by the appellant were incapable of establishing the offence alleged. That is, that, whatever the wrongdoing the respondents had allegedly conspired to commit, it did not amount to stealing from the St George Bank.
It was alleged that in 1996 the accused had, for the purposes of their business, established an EFTPOS facility. Such a facility permits the operator of the facility to charge credit cards with debits electronically. One such transaction was processed manually on behalf of an American citizen. This involved manually recording a 16 digit credit card number.
In 1997, it was alleged, the accused used the first 12 digits of that credit card, adding four further digits at random. Some of those latter digits corresponded with issued credit cards of the MBNA American Bank of Wilmington Delaware. Such a “strike” enabled the EFTPOS operator to enter a debit which would result in that bank transferring a credit to the account linked to the EFTPOS facility. This was an account opened by the accused Caggiano with the St George Bank.
Monies were then withdrawn, via ATM transactions, from that account, both in Canberra and in Sydney. It was alleged that over some weeks $100,000.00 was, in fact, withdrawn.
Whilst the business to which the EFTPOS facility was attached was situated in Canberra, the machine itself, via a telephone line and modem, could be, and allegedly was, used in the fraudulent manner described, at various locations throughout Australia and processed by the Bank of South Australia which had provided it. The prosecution conceded that it could not prove who actually fraudulently used the EFTPOS machine.
Nevertheless, it is apparent from the supporting material alleged that it would be proved to a level capable of acceptance that monies were obtained by the processing of American credit card transactions which were related in that the first 12 digits were identical.
On 4 March 2002, the matter came before Crispin J. Mr Robertson appeared for the DPP. All counsel joined in requesting his Honour not to empanel a jury. It also appeared that counsel did not adhere to the original five day estimate should the trial proceed, suggesting that over ten days would be needed. That led his Honour to observe:
“Well, I think realistically there are two possibilities. One is that the indictment could be formally presented and the legal arguments could proceed on the understanding that it will almost certainly not be possible to empanel a jury at this time and that the trial will then need to be part-heard, and the other resolve the trial date at this stage.”
Further, with the consent of all counsel, his Honour then cancelled the jury panel summoned for the trial. The matter was adjourned for further argument to 5 March and then 6 March 2002.
Mr Hart, for the accused Fischetti, submitted to his Honour that the prosecution case was misconceived. First, he submitted, the St George Bank had not been the victim of theft. It was merely a conduit to an American bank. That latter bank had debited accounts of customers who then, naturally, disputed the transactions. Without evidence from such a customer, it could not be proved that the debit was fraudulently procured. However, even so, it was the American customer, or the customer’s bank in the United States of America, who was the victim. There was, therefore, no theft committed in the Australian Capital Territory, even if such an act would be theft if committed in the Territory.
Mr Robertson submitted that the relevant territorial nexus could only be determined at the end of the prosecution case. There was some territorial nexus in that the conspiracy was hatched, or at least part-performed, in the ACT.
Mr Corr, for the accused Caggiano, raised the additional point that the prosecution was unable to show that any of the allegedly fraudulent transactions occurred in the ACT.
Mr Hart made it plain that the accused were seeking a verdict by direction. He said:
“Yes, well your Honour, it would be a convenient way for all concerned if your Honour was to give a preliminary ruling, then either we’d walk or we’d come back and run a trial and – before the jury. It just seems a – certainly a waste of everybody’s time and the expense of running a trial if we have all these people come. Accepting the Crown case at its highest, has the court got jurisdiction? That’s what I’d be asking and if the answer’s no, well we all go away. If the answer’s yes, well we run a trial because we say we’re not guilty. Is that a fair call?
MR CORR: Yes, I’d agree with that your Honour.
HIS HONOUR: Well Mr Crown, what’s your - - -
MR ROBERTSON: Yes, I’m happy to proceed on that basis.”
The indictment was then presented to his Honour and the accused were arraigned and pleaded not guilty. The “case statement” prepared by the DPP was then tendered and marked “Exhibit A on the voir dire”.
Mr Robertson added that, by virtue of the agreements between the St George Bank, the Bank of South Australia, Visa International and the MBNA Bank of America, evidence would be led that the St George Bank had to bear the losses through the wrongful debits to the United States credit card customers. He conceded that the latter issue had been determined by a civil arbitration process and that neither of the accused had been a party to that process.
His Honour also raised with Mr Robertson a problem he perceived with the indictment, namely, that it alleged one offence against a law of the Territory as the object of the conspiracy, that is, the theft of approximately $150,000.00. The prosecution, of course, alleged that the accused had, in fact, conspired to steal smaller sums on a number of separate occasions. Each theft, Mr Robertson submitted, was committed when the accused withdrew funds from their account with the St George Bank which had been wrongfully credited from time to time with sums sufficient to enable such withdrawals to be made.
Mr Corr challenged the submission that the withdrawals from the St George Bank were capable of constituting thefts in the ACT.
Mr Hart joined in that challenge.
His Honour reserved his decision, delivering it on 22 March 2002. The orders he made were that:
“1.The jury be discharged from returning a verdict in respect of the offence charged, namely that between 18 February and 18 June 1997 the accused conspired to commit an offence under a law of the Territory, namely theft of approximately $150,000 from the St George Bank Limited; and
2.A verdict of acquittal be recorded in favour of each accused in respect of that offence.”
His Honour accepted that much would depend on what was proved at trial. The guiding principles, in his view, were, at [14]:
“… If a customer deposits into a bank account cash stolen from a third party, the subsequent withdrawal of that money would not constitute a theft from the bank because the money would not belong to the bank and the withdrawal would not be facilitated by any deception of the bank. In other circumstances, however, the position may be different. For example, if what is received is not cash but merely an electronic entry which causes the bank to record a credit against the account, the apparent transfer might be cancelled or reversed. There may be no funds genuinely standing to the customer’s credit and the money withdrawn may actually belong to the bank. If the withdrawal was permitted only because the customer had dishonestly induced the bank to believe that corresponding sums had been properly credited to the account then that conduct could, in my opinion, amount to stealing within the expanded meaning of that term provided by ss 84 and 86 of the Crimes Act 1900. It is true, of course, that if the antecedent conduct which led to the amounts being credited to the account amounted to theft from card holders in the United States of America, appropriate charges could be laid in the relevant American jurisdictions and it would be open to the Director of Public Prosecutions to decline to proceed with any further prosecution in this Territory. However, a thief does not acquire any prescriptive right to money merely by facilitating electronic entries purporting to transfer the relevant sum to another account, and a person who dishonestly takes money from such an account is not absolved from criminal responsibility for that act merely by demonstrating that the credit entries which induced the bank to permit the withdrawals had been the product of earlier criminal conduct.”
Thus, if the decision depended on whether the withdrawals from the St George Bank were or evidenced a theft from that Bank, the determination of that issue, his Honour considered, would depend on a full presentation of the Crown case.
But, in his Honour’s view, there was no material capable of supporting the actual allegation made, that is, of conspiracy to commit a Territory offence described as being:
“… namely theft of approximately $150,000 from the St George Bank Limited.”
It was not alleged by the prosecution that any single act of theft of that magnitude had been intended. The actual allegation sought to be proved was of successive acquisitions of smaller sums.
It was no answer, in his Honour’s view, to suggest that the words “of approximately $150,000” were mere surplusage. Nor was it possible to point to which of the various takings sought to be proved was the theft referred to.
Hence, his Honour determined that a prosecution on the indictment as presented could not possibly succeed.
It should be noted that, despite the reference to the jury in the first order, no jury had been, or has been, empanelled.
That is the DPP’s main ground of appeal. The DPP’s contention is a simple one. It is that, because no jury has been empanelled, his Honour lacked the power to direct the entry of a verdict of acquittal. Some reliance was also placed on a lack of a hearing “on the merits”.
In our view, that latter contention is misconceived. There is a hearing “on the merits” whether acquittal is recorded because of a finding as to the law or as to the facts. It is no answer to assert that no factual findings were or needed to be made.
A jury, once empanelled, might be directed to acquit, even on the basis of the Crown opening, if that represents the Crown case taken at its highest, and the presiding judge considers that it could not, in law, justify a conviction. That is so, even if it appears that the trial judge was in error in so finding. In the latter case, the Crown has a right to a reference appeal which will correct the legal error but not disturb the acquittal. It makes no difference that the Crown case is, by agreement, in writing in the form of the Crown’s Case Statement.
However, the primary submission is that the lack of empanelment of the jury deprives the acquittal of validity, whether or not the result, in any event, whether at the outset or at the close of the Crown case, may have been an acquittal by direction.
The DPP referred in that context to R v Dorking Justices; Ex parte Harrington [1983] QB 1076, per Robert Goff LJ at 1081, cited with approval by Mason and Brennan JJ in Davern v Messel (1984) 155 CLR 21 at 50:
“Where a defendant has been in jeopardy and has been acquitted, the court cannot interfere to quash the acquittal and order a new trial, however improperly the verdict may have been obtained. The matter will however be different if there has been such a mistrial as to render the proceedings a nullity; because if they are a nullity, the defendant will not have been lawfully liable to suffer judgment for the offence charged against him, and so will not have been in jeopardy.”
It is not in dispute that if, before verdict but after arraignment, the Crown enters a nolle prosequi, it will terminate the proceedings without the accused being discharged from liability to fresh proceedings in relation to the original offence, see R v Doyle (1987) 30 A Crim R 379.
Nor is it in dispute that, save as provided in s 68B Supreme Court Act 1933 (ACT) and s 287 Crimes Act 1900 (ACT), a trial in this Court of an indictment can only be completed by a verdict of a jury. Otherwise, the indictment remains undischarged, though it may, of course, be withdrawn by the Crown or proceedings thereon stayed by the Court (see The Queen v Brown (1986) 160 CLR 171).
It is expressly recognised in s 261 of the Crimes Act that the trial has commenced once the indictment is presented at least for the purpose of considering objections to the indictment, “before the jury are sworn”. The indictment may, if found defective, be quashed or amended. A trial as to the guilt or innocence of the accused cannot, however, commence until the accused has by a plea of “not guilty” put himself or herself “upon the country”, that is, the jury (see s 281 Crimes Act). No verdict can be given before the jury, by direction or by its own decision, delivers a verdict.
Effect of Section 287 Crimes Act
It was under this section that Crispin J purported to act. It provides:
“If, on the trial of a person for an offence against this Act or any other Territory law, the judge would have power to direct the jury to return a verdict of acquittal in respect of that offence, the judge may, instead of giving such a direction, make an order -
(a)discharging the jury from returning a verdict in respect of that offence; and
(b)recording a verdict of acquittal in respect of that offence.”
Ordinarily such a direction or order would be given or made only after the Crown had presented its case. Even an improbable or tenuous case should be left to the jury to decide unless there is some defect in the case so that no guilty verdict could in law be sustained (see Doney v The Queen (1990) 171 CLR 207).
It is apparent that his Honour construed the indictment as alleging a conspiracy to commit a single offence of theft of “approximately $150,000” from St George Bank. Taken at its highest, it was his Honour’s view that the evidence proposed to be called could not establish any offence answering that description. Indeed, as already noted, it was the Crown’s intention to prove a number of acts at various times each of which, it would contend, were thefts from the St George Bank but none of them being the particular offence alleged.
If his Honour’s view was correct, of course, a verdict of acquittal, if entered, would not bar an indictment alleging a conspiracy to commit, in the Territory, other thefts. The prosecutor had acceded to and urged his Honour to consider the application for a directed verdict. He did not address his Honour as to the need, if any, for the jury to be present.
Of course, but for s 287, a jury would be essential. The judge (unless s 68B Supreme Court Act applies) has no power to enter a verdict, albeit the indictment could be quashed or amended by the Court without a jury being sworn. If the judge “on the trial” determines, by way of preliminary point, that there should be a directed verdict, a consequence of the appellant’s submission is that a jury panel would need to be assembled and a jury chosen and sworn or affirmed. That jury would then be informed that for reasons of law, the judge was entering a verdict of acquittal and they would be discharged. That would, it is conceded, be a monumental waste of time but the appellant submits that the law requires it. The appellant’s rejoinder to the above, albeit that the prosecutor before Crispin J had not suggested it, was that the indictment could have been quashed or stayed without a jury being empanelled.
The previous equivalent of s 287 (then being s 404) was first inserted into the Crimes Act in 1984 (Ordinance No. 78, 1984). This followed a meeting on 5 May 1981 of the ACT Consultative Committee on Criminal Law Reform at which the following discussion was recorded:
“(12) Direction to Acquit
(1)The Chief Judge [Blackburn CJ] said that one matter which had always struck him as important in criminal procedure, and an anomaly which was difficult to reconcile with rational dealings with the jury, was the direction to a jury that they must acquit a person and then the requirement of them to comply with that direction.
(2)Dr O’Connor said that the reason for this procedure was that once a person was put in the charge of a jury he must be discharged by the jury. Reference was made to s.24 of the Crimes Act.
(3)The Chief Judge said that this history was well understood. However, it was demeaning to the jury to be instructed in this way and it would be preferable for the judge to take the responsibility, by virtue of statute, of discharging the accused and releasing him from the charge of the jury.
(4)Mr Maguire said that the issue was partly a presentational one. However, a form of statutory language could probably be found compatible with the proper role of the jury and the realities of the situation.
(5)Mr Menzies expressed reservations about piecemeal reforms of this kind. The Chairman said that reforms of this order could be ‘saved up’ to be included in a subsequent Miscellaneous Provisions Ordinance.
(6)It was agreed that the Chief Judge should prepare a short paper on the subject of Directions to Acquit with a proposal for a substituted procedure.”
This suggestion was followed up at the Ninth Meeting of the Committee on 1 October 1981. The following discussion was recorded:
“9.7 Direction to Acquit
(1)The committee turned to consider the paper prepared by the Chief Judge on ‘The Procedural Consequences of the Judge’s Direction to the Jury to Acquit’.
(2)Dr O’Connor said that the basic reason for the present approach was explained in the language of the Crimes Act itself, namely that the jury represented ‘the country’ and the accused, on his trial, was placed in its hands. However, Dr O’Connor said that already exceptions to this rule had been provided, including by legislation. Provision had been made for the case where deaths on the jury diminished the number of the jury below a safe number. Provision had been made for a perverse jury and for discharge in the case such as had arisen in Helmhout (see Helmhout v R (No. 2) (1981) 53 FLR 381; 5 A Crim R 42; (1982) 38 ALR 584). He said there were now many exceptions and introduction of greater realism in the procedure should not greatly offend the historical principle of the duties of the jury. Nonetheless, the forms ought to be complied with as envisaged by the Chief Judge.
(3)Kelly J said that the present procedures demeaned both the judge and jury and diminished the respect of the jury for our legal institutions and the law. He said that these reasons alone were sufficient to warrant moving to reform. Mr Maguire raised the question of whether academic appeals as provided under s.5A(2) of the Criminal Appeal Act 1912 (NSW) should be introduced into the ACT. This permits a judge before whom a person is tried and acquitted, if so requested by counsel for the Crown after the conclusion of the trial, to reserve for a decision of the Court of Criminal Appeal, any question of law arising in connection with the trial. Mr Maguire said that the provision could be beneficial for the clarification of the criminal law and specially useful because of the state of the criminal law in the ACT. Mr Higgins referred to the desirability of advisory opinions.
(4)Dr. O’Connor said that where a number of counts were included, it would be desirable that the legislation should make it plain that the procedure for judicial acquittal should be available in respect of particular counts, although other counts remain to be tried by the jury.
(5)It was then generally agreed as follows:
(REC.81/18)THAT THE LAW OF THE TERRITORY BE AMENDED TO PROVIDE THAT IN ANY CASE WHERE THE JUDGE IS OF THE VIEW THAT THE PRISONER SHOULD BE ACQUITTED UPON ANY COUNT IN THE INDICTMENT, AS UPON THE GROUND THAT IT WOULD NOT BE SAFE TO ALLOW THE POSSIBILITY OF A CONVICTION, HE SHALL, IN THE PRESENCE OF THE JURY, ORDER THAT THE ACCUSED BE ACQUITTED ON THAT COUNT AND, IN THE PRESENCE OF THE JURY, CAUSE AN ORDER TO THAT EFFECT TO BE FORTHWITH SIGNED AND THE SIGNING OF SUCH AN ORDER SHALL FOR ALL PURPOSES HAVE THE EFFECT OF A VERDICT OF ACQUITTAL UPON THAT COUNT.
The committee resolved to defer consideration of appeals by the Crown on points of law following acquittals. It was suggested that provision might be needed in the above amendment for an indication that mistakes or errors of procedure would not invalidate the acquittal made in this way, as for example where an order was not signed or made in the presence of the jury.”
Then, on 28 July 1982, Mr Andrew Menzies, a member of the [Federal] Attorney-General’s Department and of the Consultative Committee, recommended that proposal to the then Federal Attorney-General, Senator Peter Durack, who approved it. However, it was not till 1984, that the law was amended at the request of the then Attorney-General, Senator Gareth Evans.
The Explanatory Memorandum prepared for that amendment, as is typical, explains nothing but merely paraphrases the proposed section.
It is noted in the 1984 Annual Report of the Consultative Committee that the Ordinance in question had implemented the Committee’s recommendation.
For present purposes, stress is laid by the appellant on the stated intention that the Judge’s order to acquit rather than to direct the jury to do so be “in the presence of the jury”.
It follows, in our opinion, that whether or not Crispin J was correct to conclude that the prosecution must fail, it was necessary if a verdict was to be entered, that a jury be sworn/affirmed to try the case. The option provided for by s 287 can only arise if and when it would otherwise be open to a judge to direct a jury to return a verdict of acquittal. That can occur only when a jury has been empanelled. That view is, we consider, supported by Nadilo v Director of Public Prosecutions (1995) 35 NSWLR 738. Whether or not, had a jury been empanelled, its physical presence was necessary to enable a verdict to be entered, does not need to be considered.
The Court’s response
It should be noted that whilst the order made was invalid because the Court had yet to be properly constituted, that does not imply that the Court could not have acted on the Case Statement, if tendered as a true statement of the evidence upon which the prosecution relied. Indeed, the appellant’s submissions in reply concede this point (and see, in any event, s 191 Evidence Act 1995 (Cth)). Nor can it be said, had the matter proceeded before a jury with a direction being forthwith given or order made to acquit, that there had been no “hearing on the merits”. A ruling that the proposed evidence could not support the indictment does not depend on the jury hearing a Crown opening.
A good example of such a situation was R v Hall (1992) 106 FLR 458. The indictment alleged a defrauding of “a public authority under the Commonwealth”. The named corporation was not such an authority. There had been a hearing only to determine the corporation’s legal status.
Nevertheless, had it been made apparent to Crispin J that, validly to make an order of acquittal, a jury would need to have been empanelled, the prosecution might then have withdrawn the indictment or applied to amend it so as to cure the vice in it his Honour had perceived.
Indeed, it is conceded that the indictment does not in terms accurately reflect the nature of the conspiracy upon which the prosecution intends to rely.
It may also be that when the facts are fully presented, it will be apparent that the conduct alleged does not constitute a theft or thefts in this Territory. It is premature, however, to express a view at this stage on that issue.
It is necessary only to set aside the orders of acquittal. The proceedings, commenced before Crispin J, are remitted to him to proceed according to law.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 31 March 2003
Counsel for the Appellant: Mr R Refshauge, SC
Solicitor for the Appellant: Director of Public Prosecutions (ACT)
Counsel for the Respondent: Mr C M Everson
Solicitor for the Respondent: Saunders & Company
Date of hearing: 4 November 2002
Date of judgment: 31 March 2003
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