R v Freer - [2021] SADC 81

District Court of South Australia
(Criminal: Application)
R v FREER
[2021] SADC 81
Reasons for Rulings of her Honour Judge Chapman (ex tempore)
6 July 2021
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
The accused is on trial for dishonesty offences. The prosecution closed its case, the defence elected not to call evidence and closing addresses were delivered to the jury. The defence then submitted there was no case on counts 2 and 3.
Held: A trial judge has power to find no case after closing addresses have been completed. There is no case on counts 2 and 3. The jury will be directed to acquit the accused on those counts. The jury will be discharged on count 1.
R v N Ltd and C Ltd (2008) EWCA Crim 1223; R v TS [2017] NSWCCA 247; R v Julie Johnson [1999] EWCA Crim 41; Boakye Court of Appeal Criminal Division, 12 March 1992; Director of Public Prosecutions Reference No 1 of 2017 (2017) 267 CLR 350; R v Gapper and Mazzeo [2007] SASC 119; R v Bilick (1984) 36 SASR 321, discussed.

R v FREER
[2021] SADC 81

Criminal

At the completion of closing addresses, the defence submitted there is no case to answer in relation to counts 2 and 3 on the Information.
The accused is on trial for dishonesty offences. The trial commenced on 29 June 2021.
Count 1 is an offence of aggravated theft.[1] It relates to an allegation that on 7 August 2014, the accused deposited two cheques into his own business account and thereby stole money from his cousin, Nadiene Wright. He was a solicitor representing Ms Wright in her Family Court settlement following a separation from her husband.
[1] Section 134(1) of the Criminal Law Consolidation Act, 1935.
Count 2 is an offence of aggravated deception.[2] On 12 June 2015, Mrs Russell (the mother of Ms Wright) signed a mortgage document which the accused produced to her. Mrs Russell had no idea she was signing such a document. The mortgagee was Mango Capital Pty Ltd. No payments were made on the mortgage and consequently, Mrs Russell lost her house.
[2] Section 139(b) of the Criminal Law Consolidation Act, 1935.
Count 3 is an offence of aggravated dishonestly dealing with documents.[3] This offence concerns a document entitled ‘Authority’. The prosecution case is that this document was falsely produced to Mango Capital Pty Ltd to obtain a loan from Mango Capital Pty Ltd with the purported approval of Mrs Russell. The prosecution alleges this offence was committed before the accused duped Mrs Russell into signing the mortgage on her home, which is the subject of count 2.
[3] Section 140(4) of the Criminal Law Consolidation Act, 1935.
The accused pleaded guilty before the jury panel to count 4, the offence of fabricating evidence. That relates to an affidavit of Mrs Russell filed on 9 May 2016 in the Supreme Court of South Australia. Mango Capital Pty Ltd brought proceedings against Mrs Russell for possession of her home following her default on the mortgage. By his plea, the accused has admitted to fabricating that affidavit.
A ‘no case’ ruling
The issue of whether there is ‘no case’ is a question of law to be determined by the trial judge. A finding that the prosecution has no case may only be made by a trial judge after the prosecution has closed its case.[4] At that stage, the defence has a right to make a submission of no case to answer.
[4] R v N Ltd and C Ltd (2008) EWCA Crim 1223; R v TS [2017] NSWCCA 247.
At the close of the prosecution case in this trial, defence counsel did not make a submission of no case to answer in relation to count 2 or count 3. The accused elected not to give evidence or call any evidence. The prosecution and defence then made their closing addresses to the jury.
After closing addresses and prior to directing the jury on the relevant law, I asked the prosecutor for submissions regarding the evidence he relied upon for proof of the first element of count 2 and for proof of count 3, including his reliance upon the doctrine of joint enterprise regarding count 3.
Following that exchange, the defence made the submission of no case to answer on counts 2 and 3.
I received submissions from counsel on the question of whether a submission of no case to answer may be made at this stage of the trial.
Defence counsel referred to, but did not ultimately rely upon, the decision of R v Julie Johnson[5]. In that case the Court of Appeal (UK) held that the trial judge should have withdrawn the case from the jury after the defence presented evidence at trial which was not contradicted by the prosecution. Reference was made to an unreported case of Boakye[6] which ‘stated as a matter of principle that a judge was entitled to hold that there was no case to answer even at the end of the defence case’. The Court of Appeal went on to state that ‘Were it not to be so the situation could arise where a judge would be powerless to prevent a real miscarriage of justice in a case where there was a sudden change in the strength of the prosecution case as a result of cogent evidence emerging in the defence case. That is what happened here and it is our judgment that the change in the evidence was so fundamental that this case should have been withdrawn from the jury at the stage when the discussion took place in the absence of the jury.’.
[5] [1999] EWCA Crim 41.
[6] Court of Appeal Criminal Division, 12 March 1992.
I do not consider the state of the evidence at the end of the defence case in R v Julie Johnson was such that the decision is authority for a finding of no case as a matter of law at the end of the defence case. In my view, the Court of Appeal was dealing with the discretion of a trial judge to have given a direction akin to a Prasad direction. The decision pre‑dates the High Court’s decision in Director of Public Prosecution Reference No 1 of 2017[7] which found that there is no power to give a Prasad direction under the common law of Australia.
[7] (2019) 267 CLR 350.
In R v Gapper and Mazzeo,[8] the Court of Criminal Appeal (SA) considered the situation that occurred in the trial of Mr Gapper for two counts of possessing a firearm without a licence. The prosecution closed its case before presenting any evidence that Mr Gapper did not have a licence for the firearms. At that stage, the defence did not make a submission of no case to answer.
[8] [2007] SASC 119.
Mr Gapper elected to give evidence. In cross examination, Mr Gapper was asked whether he had a licence for the firearms. Defence counsel objected. The judge overruled the objection. Mr Gapper then admitted that he did not have a licence for the firearms.
It was submitted on appeal that before the prosecutor’s question was answered, the judge should have directed the jury that there was no case to answer. In his reasons, Doyle CJ considered that submission could not be sustained. He went on to remark that ‘the time for such a ruling had passed’.[9] He found there was no basis for an objection to the question and in particular, it could not be objected to on the basis it would remedy a deficiency in the prosecution case. Even if it had been an oversight of defence counsel to make the submission at the close of the prosecution case, there was no miscarriage of justice.
[9] At [102].
In my view, the statement by Doyle CJ that ‘the time for such a ruling had passed’ should be considered in the context of that particular case. The Court was not being asked to determine a general question regarding the power of trial judges to make such a ruling at that time. In the particular context of that trial, the time for making a ruling had literally passed because the submission had not been made prior to Mr Gapper giving evidence and being asked an unobjectionable question. His answer that he did not have a licence for the firearms meant that there was a case to answer and the trial proceeded accordingly. I do not consider the decision is authority for a general proposition that a ruling of no case to answer may not be made once the defence has embarked upon a case.
Although no authority directly on this point was brought to my attention, Mr Culshaw submitted that a trial judge must have power to find no case at this stage of the trial, namely, after the completion of closing addresses. A trial judge is required to direct the jury about the law applicable to the case. If the trial reaches this point and it becomes apparent that there is no evidence to establish the offence as a matter of law, then the obligation must be to direct the jury to acquit. I agree with that submission, as did the Director of Public Prosecutions.
I think there is a difference between the right the accused has to make a submission at the close of the prosecution case of no case to answer and a determination by the trial judge that there is no case. Even if the accused does not exercise the right to make the submission of no case to answer at the close of the prosecution case and proceeds to answer the prosecution case (either by evidence or silence), if there is no case by the time the trial judge is required to direct the jury as to the relevant law, the direction must be for an acquittal. Whilst it is unfortunate that the accused did not make the submission at the close of the prosecution case, that does not preclude a finding of no case at this stage.
The defence submitted that if there is no case as a matter of law at this stage, the remedy is not to declare a mistrial but to direct an acquittal. The DPP agrees.
Count 2 – Aggravated deception
The first element of the offence that the prosecution must prove is that the accused deceived another.
Pursuant to s 130 of the Criminal Law Consolidation Act, 1935 (the CLCA), ‘deceive’ means to engage in a deception. A 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.
The prosecution relied upon a misrepresentation by conduct.
Mrs Russell gave evidence that on Thursday, 11 June 2015, the accused arrived at her daughter’s house. Mrs Russell was there with her grandchildren. Either the accused or her daughter had rung her earlier that day. The accused wanted her passport, Medicare card, birth certificate and a rates notice for her home. He did not really say why he wanted those things. He took her and the children back to her home to get those things. He did not really say anything to her about them at that stage either.
The alleged offence was committed the next day. The accused arrived at Mrs Russell’s daughter’s home. He had papers with him and wanted her to sign them. He did not explain what the papers were. She made him a cup of coffee and they went outside. He said he had papers for her to sign, which she did. He said it was all marked. There were little tabs on it for her to sign. Her grandson made a comment that she was writing a lot. They had coffee, then the accused left and took the papers with him.
She gave evidence that the accused did not explain what the papers were for, nor did she ask him. She did not ask because he was her nephew who she had known all his life. Her was also a lawyer and she trusted what she was signing. They had no conversation about the loan.
The prosecutor conceded there was no misrepresentation by words. The accused did not say anything.
In written submissions, the prosecutor submitted that the prosecution is required to establish that by ‘words or conduct’ that Mrs Russell was deceived by the accused. It was submitted that a person is deceived if they are ‘taken unawares by craft of guile’. The prosecution submitted that to be ‘unaware’ is to be ‘not cognizant of, or ignorant of’ a fact or facts. The written submissions went further to say that the verb ‘conduct’ is defined as ‘to lead, guide’. It can also include acts of ‘directing or managing, a process or transaction’. The definitions came from the Oxford dictionary.
The prosecutor submitted that the accused presented Mrs Russell with documents that were tagged at the places he wanted her to sign. One of those documents must have been the Memorandum of Mortgage (the document the subject of this count) because she recognised her signature on one of the pages. The accused’s conduct was the deliberate and intentional presentation of those tagged documents to Mrs Russell, leading her or guiding her as to where to place her signature. His conduct extended to exposing only as much of the page that was necessary to obtain her signature which prevented her from knowing the actual nature and consequences of those documents. The prosecutor submitted that the accused relied upon his relationship with Mrs Russell and his standing as a lawyer to obtain her signature without question. He would not have been able to obtain a signature from a stranger by simply presenting tagged documents without anything further.
In my view, the prosecutor has identified conduct, but not a misrepresentation by conduct. Initially, the prosecutor submitted that the conduct does not have to amount to a misrepresentation but then conceded that ‘deception’ means ‘a misrepresentation by words or conduct’, as is plain in the legislation. He did not rely upon any of the inclusive examples set out in (a), (b) or (c) of the definition of ‘deception’ in s130 of the CLCA. He submitted that the accused did not just put documents in front of Mrs Russell, but put tags on them to draw her attention so she did not have to look at it.
In his opening, the prosecutor told the jury that ‘the ways in which human beings can deceive each other knows no bounds. There’s a myriad of ways that it can be done but it includes importantly in this matter the prosecution says it includes a misrepresentation about intentions. In this case the accused got Dianne Avis Russell to sign that Memorandum of Mortgage in relation to a loan to Oxcorp Pty Ltd when the defendant knew that Dianne Avis Russell didn’t know anything about that loan and that Dianne Avis Russell thought she was doing something to help her daughter refinance her house, not put $100,000 into the Oxcorp bank account for Mr Oxlade and the defendant to spend’.[10]
[10] T53.
The prosecutor did not make good this element in his closing address. He referred to the accused knowing that Mrs Russell wanted to help out her daughter. He went on to say ‘that’s why he could turn up on 11^th and 12^th and without, you know, without getting into detailed discussion about anything. He knows Dianne Russell probably thinks this is about helping Nadiene. Well, it didn’t come out of the blue. There was enough story in the background. Enough discussion to know yes, mum will help me and if she can and I need to refinance.’.[11]
[11] T241.
Mr Culshaw submitted that there may well be a scenario in which silence could amount to a misrepresentation by conduct. For example, if Mrs Russell had said to the accused she was assuming the documents were about an application for a driver’s licence, his silence and presentation to her of the documents may well be evidence which could fall within the definition. There was no such scenario here. According to Mrs Russell, nothing was said by either of them about the documents on the day in question, nor had there been a discussion between them on a prior occasion.
Taking the evidence at its highest, I find the evidence is not capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused.[12]
[12] R v Bilick (1984) 36 SASR 321 at 327.
I find there is no case as a matter of law.
Count 3 – Aggravated dishonest dealings with documents
A person is guilty of the offence of aggravated dishonest dealings with documents if a person dishonestly produces a document knowing it to be false, intending to deceive another and by that means to benefit himself or another.
The particulars of the offence are that the accused between 31 May 2015 and 1 July 2015 at Adelaide and other places, dishonestly engaged in conduct by producing a document entitled ‘Authority’, dated 1 June 2015, as security for the raising of funds by the accused and/or Oxcorp Pty Ltd knowing it to be false, intending to deceive Mango Capital Pty Ltd and by those means to benefit himself and Colin Oxlade, such benefit being money in the sum of $100,000.
The circumstance of aggravation relied upon is that the offender committed the offence knowing that the victim was over the age of 60 years at the time of the offence.
As Mr Culshaw rightly pointed out, the alleged victim of this offence is not Mrs Russell, but rather Mango Capital Pty Ltd. There is no case on the element of aggravation.
The document relied upon was contained in the exhibit P4 at tab 11. The document is purportedly signed by Dianne Avis Russell on 1 June 2015. It states that she is the sole registered proprietor of certain property and that that property is unencumbered. Paragraph 3 states that ‘I hereby offer to pledge the property as security and hereby authorise and direct Mark Freer and/or Oxcorp Pty Ltd (ACN 115209660) both c/o 90 Carrington Street, Adelaide SA 5000 to use the property as security with respect of financial accommodation to be raised to the limit of $100,000 plus agreed costs and interest’.
Mrs Russell gave evidence that it is not her signature nor her handwriting on the document. Mr Derums, a director of Mango Capital Pty Ltd, gave evidence it was not a Mango Capital Pty Ltd document. Detective McPherson gave evidence this was one of the documents he seized from Grant Legal, the solicitors for Mango Capital Pty Ltd. There was no evidence of the date of that seizure. There was no other evidence about this document.
In his closing address, the prosecutor said very little about count 3.[13] He conceded he could not prove who sent the document or how it got to the lawyers. He referred to his opening address and the ‘idea of common purpose’. He went on to say that the accused ‘must have had something to do with this, you might think. Now I’m not going to say anything more about count 3 than that.’.
[13] T243 – 244.
The first element of the offence is that the accused produced a document. The following inferences were relied upon for a case to answer:
·the document must have been provided to Mango Capital Pty Ltd and/or their lawyers, in furtherance of the loan application,
·that the document must have been provided within the time frame set out in the particulars, specifically it must have been produced prior to the 16^th June, as it had no effect or value or purpose any time after that,
·that the date of the document is probably correct, as it would have been unnecessary to have fabricated it once Dianne Russell had been made a shareholder of Oxcorp Pty and she had signed the memorandum of mortgage on the 12^th June,
·that the defendant must have been involved in producing it to Mango Capital Pty Ltd as he on its face, is a beneficiary of the pledge of the property as security, by his relative, not anyone elses (sic) relative. There is no evidence that Dianne Russell knew anything about Oxcorp Pty Ltd or its director at that time.
·that the fact that the accused has been prepared to fabricate documents to his own end, at Dianne Russell’s expense, can be used to (sic) by the jury to consider his involvement and the dishonest element of this offence.

During submissions, the prosecutor was unable to articulate the common purpose and the evidence which was open to prove such a common purpose.
Taking the evidence at its highest, there was no more than suspicion and speculation regarding the first element of the offence.
I find no case on count 3.
Count 1 – mistrial
Both the prosecution and defence agreed that if I found no case regarding counts 2 and 3, then the jury should be discharged in relation to count 1 on the basis of a mistrial. In my view, that must be so. Given the finding of no case to answer on counts 2 and 3, the evidence heard by the jury regarding that conduct, as well as the plea to count 4, is not admissible on count 1. The evidence regarding counts 1, 2, 3 and 4 was cross-admissible as part of a course of dishonest conduct. The evidence heard by the jury regarding counts 2 and 3, as well as the plea to count 4, is now too prejudicial for the fair consideration of count 1.
I declare a mistrial in relation to count 1 and will discharge the jury.