R v Kerin - [2013] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v KERIN
[2013] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
25 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE - GENERALLY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Gray J (dissenting)
Appeal against conviction - the defendant was convicted of two counts of theft - it was the prosecution case that the defendant abused his powers as the donee of an enduring power of attorney by transferring monies from an account of the donor into accounts of a corporate entity under the defendant’s control as chief operations officer and 90 percent shareholder - at relevant times, the donor was aged almost 100 years and had been demented for some time - the donor of the power had no interest in the accounts of the corporate entity - the defendant used the funds transferred to support share trading in the name of the corporate entity - the defendant engaged in an abuse of his powers as the donee of the enduring power of attorney - it was the prosecution case that the defendant dealt with the property of the donor - that the defendant did so in breach of trust - that the defendant did so when in a position of admitted conflict and to the defendant's own benefit - that the defendant did so dishonestly - that the defendant misused the powers vested in him as attorney - that the defendant dealt with the donor's property intending to make a serious encroachment on the donor’s proprietary rights - no reimbursement was effected to the donor's account - it was the defence case that the defendant acted honestly, with consent and with reasonable diligence in his dealings with the property of the donor.
Held (Gray J): Appeal against both convictions dismissed - it was open to the jury to conclude beyond reasonable doubt that the defendant acted dishonestly in his dealings with the donor’s property - it was open to the jury to conclude beyond reasonable doubt that the donor did not consent to the transfer of her property to a corporate entity controlled by the defendant - the trial Judge did not err in his directions as to the law - it was within the discretion of the Judge to allow the amendments to the particulars - the power to amend particulars is a wide power - the defendant was not prejudiced by the amendment to the particulars - if the trial Judge did err, the proviso should be applied as no substantial miscarriage of justice has occurred.

CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - MENS REA
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - TECHNICAL WORDS - LEGAL
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - REFERENCE TO CONTEXT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - REFERENCE TO FRAMEWORK OF ACT - DIVISION INTO PORTIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS - STATUTORY DEFINITION PROVISIONS GENERALLY
Held (Peek J; Nicholson J agreeing): Appeal against both convictions allowed.
Appeal against convictions of theft - counts 1 and 2 related to the appellant's actions as the donee of an enduring power of attorney - the Information averred that the thefts were committed by the appellant transferring two separate tranches from the bank account of the donor into accounts held by a company associated with the appellant - the first tranche was initially used for share trading resulting in a moderate loss - the second tranche was the subject of a loan agreement and the funds were entirely lost in trading in futures - the balance of the first tranche was subsequently lost in further futures trading in an attempt to recover the previous losses - the Information was amended after the close of the prosecution case to extend count 1 to include this second course of futures trading - the defence case was that the appellant believed he had a legal right to act the way in which he did under the enduing power of attorney and that he was acting with reasonable diligence to protect the interests of the donor.
Whether the Judge misdirected the jury as to the elements of theft - whether s 134(3)(b), Criminal Law Consolidation Act 1935 substitutes an element of misuse of powers for the usual element of lack of consent where the accused has been vested with powers for dealing with property.
Held (Peek J; Nicholson J agreeing): the Judge erred in directing the jury that misuse of powers, and not lack of consent to the dealing, is an element of theft - the element of non-consent is always required - in cases involving a power of attorney, lack of consent will be judged by reference both to the instrument itself and the content of the fiduciary duty arising on the facts of the case - Powers of Attorney and Agency Act 1984 referred to.

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE
Whether the Judge erred in failing to direct the jury in terms of s 131(5), Criminal Law Consolidation Act 1935
Held (Peek J; Nicholson J agreeing): the Judge erred in not directing the jury in terms of s 131(5) - on the defence case, if the jury found that the appellant did not have a legal right to act as he did then the jury would have to consider the further question of whether it had been proved that the appellant did not honestly (but mistakenly) believe that he had a legal right to act as he did - it was imperative here that the jury be so directed.

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
Whether the Judge erred in failing to direct the jury as to the bearing of the loan agreement on count 2.
Held (Peek J; Nicholson J agreeing): the Judge erred in failing to direct the jury as to the bearing of the loan agreement on count 2 - the legal status of the loan and the appellant's investigation into the company's capacity to repay it were important matters bearing upon the appellant's claim that he exercised his powers as attorney with reasonable diligence to protect the interests of the donor and should have been the subject of directions.

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - GENERALLY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Whether the amendments to the Information should have been permitted - whether the convictions are bad for uncertainty.
Held (Peek J; Nicholson J agreeing): the amendments to count 1 on the Information should not have been permitted - in its amended form, count 1 was duplicitous and uncertain - the conviction on count 1 is bad for uncertainty - the conviction on count 2 is not bad for uncertainty.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL GRANTED - VERDICT UNREASONABLE
Whether there is a case to answer on each count - whether the verdicts are unreasonable.
Held (Peek J; Nicholson J agreeing): on the whole of the evidence there was a case to answer on each count - the verdicts of guilty should not be set aside on the additional basis that they are unsafe or unreasonable - however, as the prosecution disavowed the initial share trading as part of the thefts charged it would be an abuse of process to rely on that conduct as a charge, part of a charge, or uncharged misconduct, at a retrial.

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE
Whether the proviso can be applied.
Held (Peek J; Nicholson J agreeing): the proviso cannot be applied - the misdirections as to the element of non-consent; the application of s 7, Powers of Attorney and Agency Act 1984; and the Judge's refusal to direct as to s 131(5) amounted to incorrect directions as to matters relating to the elements of the offences - the failure to direct as to the relevance of the loan agreement and the belated amendment of count 1 were also important cumulative matters leading to a resultant substantial miscarriage of justice - it is not possible to say that it would not have been open to the jury to acquit the appellant of each count.
Criminal Law Consolidation Act 1935 (SA) ss 130, 131, 131(5), 132, 133, 134, 134(1), 134(3)(b), 281, 353(1); Powers of Attorney and Agency Act 1984 (SA) ss 6, 7, Sch 2, referred to.
S v The Queen (1989) 168 CLR 266; M v The Queen (1994) 181 CLR 487; Cesan v The Queen (2008) 236 CLR 358; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, applied.
R v Baslis [2011] SASCFC 160, distinguished.
Maher v The Queen (1987) 163 CLR 221; Kingswell v The Queen (1985) 159 CLR 264; R v Wilson (No 2) (2007) 248 LSJS 229; Johnson v Miller (1937) 59 CLR 467; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; KRM v The Queen (2001) 206 CLR 221; R v Carr [2000] 2 Cr App R 149; Patel v The Queen (2012) 86 ALJR 954; WGC v The Queen (2007) 233 CLR 66; Cheung v The Queen (2001) 209 CLR 1; R v Staker (2011) 110 SASR 274; Daly v Medwell (1986) 40 SASR 281; Brinkworth v Dendy (2007) 97 SASR 416; Jones v The Queen [1980] WAR 203; R v Trotter (1982) 7 A Crim R 8; R v Lapthorne (1989) 40 A Crim R 142; Willers v The Queen (1995) 81 A Crim R 219; R v Suckling (1998) 104 A Crim R 59; Parker v Sutherland (1917) 86 LJKB 1052; R v Zampogna (2003) 85 SASR 56; KBT v The Queen (1997) 191 CLR 417; Krakouer v The Queen (1998) 194 CLR 202; Handlen v The Queen (2011) 86 ALJR 145, discussed.
R v Langham (1984) 36 SASR 48; R v Lopatta (1983) 35 SASR 101; R v Kastratovic (1985) 42 SASR 59; R v Bedford (2007) 98 SASR 514; R v Ayles (2007) 97 SASR 78; Ayles v The Queen (2008) 232 CLR 410; Weiss v The Queen (2005) 224 CLR 300; Darkan v The Queen (2006) 227 CLR 373; Baini v The Queen (2012) 246 CLR 469, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"misuse of powers", "theft", "consent", "enduring power of attorney", "deal", "dishonesty"

R v KERIN
[2013] SASCFC 56
Court of Criminal Appeal: Gray, Peek and Nicholson JJ
GRAY J.

This is an appeal against conviction.
I have had the opportunity of reading in draft the reasons of Peek J, with whom Nicholson J has indicated that he concurs. Their Honours find error on the part of the trial Judge and would set aside the verdicts of guilty and order a retrial. I have reached a different conclusion. I do not consider that the trial Judge erred. No basis has been shown to lead to the setting aside of either conviction.
On the assumption that error on the part of the trial Judge has occurred, I have considered the application of the proviso as set out in section 353(1) of the Criminal Law Consolidation Act 1935 (SA). In doing so, I have had regard to the observations of the High Court in Weiss.[1] In my opinion, the prosecution case was overwhelming. The only substantive issue for consideration was whether the prosecution had established beyond reasonable doubt dishonesty by the defendant. The actus reus was not in issue in respect of either charge. I would apply the proviso. I am satisfied of the defendant’s guilt on both counts.
[1] Weiss v The Queen (2005) 224 CLR 300.
Introduction
The defendant and appellant, Peter David Kerin, following a trial in the Supreme Court, was convicted by jury verdict of two counts of theft.
The Information as amended provided:[2]
[2] The handwritten amendments by the trial Judge have been underlined.
First Count
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter David Kerin ~~on or about~~ between the 28th day of June 2007 and 22^nd Feb 2008 at Adelaide or other places, dishonestly dealt with property, namely a part of a chose in action in the amount of $100,000.00 held in the name of Mary Eileen Fahey in account no 06 5117 00105394 with the Commonwealth Bank, without the owners consent, intending to deprive the owner permanently of the property or to make a serious encroachment on the owners proprietary rights.
Second Count
Statement of Offence
Theft. (Ibid.).
Particulars of Offence
Peter David Kerin ~~on or about~~ between the 21st day of September 2007 and the 23^rd of October 2007 at Adelaide or other places, dishonestly dealt with property, namely a chose in action in the amount of $200,000.00 held in the name of Mary Eileen Fahey with Generations Investment Portfolio, AXA, policy no 130056-L9-01, without the owners consent, intending to deprive the owner permanently of the property or to make a serious encroachment on the owners proprietary rights.
The defendant was appointed under an enduring power of attorney by Mary Eileen Fahey as her attorney on 18 December 1985. The power of attorney nominated the defendant and his father, Kevin Kerin, a former legal practitioner, “as joint and several attorneys...to the intent that either of them may exercise the powers”. Ms Fahey was diagnosed with dementia on 7 October 2005 and died on 26 November 2007.
The power of attorney was in the widest of terms, nominating specific powers in seventeen subparagraphs, and then providing:
My attorneys may exercise all powers hereby or by law given notwithstanding that they have or may have a direct or personal interest in the mode or result of exercising such power or may benefit either directly or indirectly as a result of the exercise of any such power.
Notwithstanding anything hereinbefore contained, to do on my behalf anything that I can lawfully do by an attorney.
In addition to the specific powers hereinbefore contained I hereby create an enduring power of attorney to the intent that the authority conferred is to be exercisable notwithstanding my subsequent legal incapacity.
Kevin Kerin ceased being a legal practitioner in or about the year 1990.
On 15 September 2004, the defendant caused Osvest Pty Ltd to be registered with the Australian Securities and Investments Commission, with an issued capital of 100 ordinary shares. The defendant was a director of Osvest from its incorporation until June 2005. It appears that at that time the defendant ceased to hold office as a director and became the chief operations officer of Osvest. The defendant was also the sole director of Armalite Finance Pty Ltd, which held 90 of the 100 shares in Osvest. Armalite Finance was said to act as a trustee in respect of this shareholding. Osvest was incorporated for the purpose, according to the defendant, of being a manager of funds for large institutions. By 2007 it had not commenced this business. It was in need of start-up funds.
Ovest had accounts at Westpac Bank and Macquarie Bank. An account was also held by Osvest with a stockbroker. The defendant was an authorised person to act on behalf of Osvest in relation to the stockbroking account.
In 2007, the defendant, pursuant to his powers as attorney, sold Ms Fahey’s home property at Parkside for consideration of about $600,000.00. The contract settled on 10 April 2007. Ms Fahey had been resident in a retirement home for some time prior to the sale. At settlement, the defendant received a bank cheque in the amount of $500,000.00, which he then deposited in an account that had been established in Ms Fahey’s name with the AXA Group.
The Prosecution Case
It was the prosecution case that the defendant, purporting to act as Ms Fahey’s attorney, transferred two separate amounts from her AXA account. On or about 6 June 2007, the defendant arranged for an amount of $100,000.00 to be transferred from the AXA account into an account in Ms Fahey’s name at the Commonwealth Bank. On 28 June 2007, this amount of $100,000.00 was then transferred to an Osvest account with Macquarie Investment Management Limited. On or about 21 September 2007, the defendant arranged for the transfer of a separate amount of $200,000.00 from the AXA account in the name of Ms Fahey to a Westpac account in the name of Osvest. A portion of the $100,000.00 amount, as well as the entirety of the $200,000.00 amount, were ultimately transferred to the account of Osvest with its sharebroker to support share trading in the name of Osvest
In short, it was the prosecution case that the defendant stole Ms Fahey’s monies, and used those monies as start-up funds for Osvest and then to fund speculative derivative trading in the name of and to the account of Osvest. The defendant did so dishonestly at a time when Ms Fahey was aged almost 100 years and suffering from dementia.
The relevant transactions were conducted by the defendant in a manner such that there was some difficulty in unravelling the transactions in order to establish precisely what had occurred. As a consequence, the prosecution, in particularising the Information and in presenting its case, was confronted with complex transactions. Ultimately, as will be discussed later, the defendant admitted to all the transactions in evidence. The actus reus of the alleged offending was admitted.
Ms Fahey did not have the mental capacity to consent to transactions in 2007 and, in particular, did not have the mental capacity to consent to the transfer of monies from her bank account to accounts of Osvest controlled by the defendant in which she had no interest. Relevantly, the prosecution alleged that the defendant had misused the powers that were vested in him by Ms Fahey through the enduring power of attorney and that, in doing so, the defendant intended to make a serious encroachment on Ms Fahey’s proprietary rights. On the prosecution case, the defendant, through Osvest, intended to finance derivative trading with Ms Fahey’s money.
The first count related to a portion of the amount of $100,000.00 that had been withdrawn from Ms Fahey’s Commonwealth Bank account on 28 June 2007 and transferred into an account of Osvest, an entity under the defendant’s control at all relevant times and in which Ms Fahey had no interest. The monies were used in derivative trading by Osvest. In respect of the transaction of $100,000.00, apart from banking records, no other documentation evidenced the transaction or suggested any legitimacy to the transaction. The prosecution relied on the total failure of any explanation being proffered for why such a transfer should occur. If, as the holder of the power of attorney, the defendant considered that an investment in securities should be undertaken on behalf of Ms Fahey, there was no reason why that could not have been done in Ms Fahey’s name.

During the course of the trial, the particulars of the first count of theft were amended to reflect the fact that a portion only of the $100,000.00 was the subject of the charge. The time during which it was alleged that the offence was committed was also amended.
The second count related to the amount of $200,000.00 that had been withdrawn from Ms Fahey’s AXA account in October 2007 and then transferred into an account of Osvest. These monies were used in derivative trading by Osvest. During the course of the trial, the particulars of the second count of theft were amended to specify a time during which it was alleged that the offence was committed.
The $200,000.00 the subject of the second count was addressed in a document dated 2 October 2007 described as a loan agreement between Ms Fahey, the lender, by her attorney, the defendant, and Osvest, the borrower. No security was provided in respect of the loan. Repayment was to take place on or before 30 June 2008 with repayment of the principal sum and simple interest at a rate of 15 percent per annum.
The document, which was entitled “Loan Agreement”, inter alia, provided:
WHEREAS:
A.     The Borrower has requested the Lender to advance the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) (hereafter referred to as “the Principal Sum”) to the Borrower for its own sole use and benefit absolutely.
B.     The Lender has agreed to provide the Borrower with such advance upon and subject to the terms and conditions of this Agreement.
C.     The Lender and the Borrower wish to record in writing the terms of their agreement.
NOW THE PARTIES HERETO HEREBY COVENANT AND AGREE AS FOLLOWS:
1.   COMMITMENT
The Lender agrees, upon and subject to the terms and conditions of this Agreement, to make a once only and single advance to the Borrower of the Principal Sum in the above defined amount of TWO HUNDRED THOUSAND DOLLARS ($200,000.00).
2.   REPAYMENT OF THE PRINCIPAL SUM AND INTEREST
The Borrower covenants with the Lender that, on or before the 30^th of June, 2008, the Borrower will repay the Principal Sum to the Lender together with simple interest at the rate of fifteen percent (15%) per annum calculated daily.
3.   CERTIFICATE AS TO AMOUNT OF MONEYS HEREBY SECURED
A certificate signed by or on behalf of the Lender stating the amount of the moneys owed by the Borrower (inclusive of interest) on a date mentioned in any such certificate shall be conclusive evidence (in the absence of manifest error) against the Borrower that the amount so stated is the amount of the moneys due by the Borrower to the Lender pursuant to this Agreement on the date specified in the said certificate.
The so-called loan agreement acknowledges that the monies were to be lent to Osvest for its “own sole use and benefit absolutely”. Ms Fahey retained no interest in the monies. In return, she received a chose in action, an entitlement to repayment with interest. The reference in the agreement to “security” masks the fact that no security was provided. Later in these reasons, I set out the evidence of the defendant acknowledging this to be the case.
In respect of the transaction of $200,000.00, apart from banking records, the only other document recording the transaction was the so-called loan agreement. As earlier noted, the defendant was a party to both sides of the agreement. The defendant, as he acknowledged in evidence, was in a position of “absolute” conflict. On the prosecution case, Ms Fahey had no interest at all in making an unsecured loan to Osvest.
It is to be immediately understood that the defendant was in the position of a fiduciary and also a trustee. He entered into a contract as Ms Fahey’s attorney and trustee with Osvest, an entity that he controlled. He did so in circumstances where Osvest was without substance and without any ability to repay the loan, and without any form of security being provided. The monies were used by Osvest to engage in derivative trading. Later in these reasons I set out the evidence of the defendant acknowledging these matters.
In summary, it was the prosecution case that the defendant was guilty of the crime of theft in respect of both counts. The defendant stole monies from Ms Fahey’s account over which he had control as the holder of her power of attorney. He transferred those monies to the corporate entity Osvest, which he controlled as shareholder and chief operations officer.
The Defence Case
The defendant gave evidence in his defence. He called no other witness. He informed the jury that he was admitted as a legal practitioner in 1984 and had worked in his father’s legal firm between 1984 and 1987. As noted above, the practitioner’s father ceased practising as a legal practitioner in about 1990. The defendant had no recollection of being appointed as Ms Fahey’s attorney in 1985, although he accepted that he was so appointed. He had no further involvement with Ms Fahey’s affairs until he prepared her will in 2003. He had no memory of doing so. The defendant continued in legal practice following the time at which his father ceased to be a legal practitioner and remained in practice at the time of his conduct the subject of the charges before the Court.
In February 2005, the defendant was contacted by Lourdes Valley Nursing Home in relation to the taking of instructions for a new will for Ms Fahey. He became aware that an application had been made to the Guardianship Board of South Australia for the appointment of a guardian. If successful, that application would apparently have the effect of rendering the enduring power of attorney inoperative. The defendant determined not to pursue the taking of instructions for a new will.
In October 2005, the defendant received medical advice that Ms Fahey was no longer competent to manage her own affairs. At this time, the defendant understood that he could act on Ms Fahey’s behalf as her attorney.
In early 2007, the Lourdes Valley Nursing Home contacted the defendant concerning Ms Fahey’s accommodation debt. This apparently led the defendant to sell Ms Fahey’s home at Parkside. The defendant accepted that $500,000.00 of the proceeds of the sale of the home was paid to Ms Fahey’s account at AXA. The defendant further accepted that he withdrew the earlier discussed amount of $100,000.00 from Ms Fahey’s AXA account in June 2007 and that he transferred that money into an account in Ms Fahey’s name with the Commonwealth Bank, and later to an account in Osvest’s name with Macquarie Investment Management Limited. The defendant further accepted that a portion of that amount was ultimately transferred to Osvest’s stockbroker to be used by Osvest to support derivative trading. The defendant accepted that when this derivative trading experienced initial success, he authorised a payment of a portion of the profits of that trading to be paid to a derivative trader engaged by Osvest so that the trader could discharge personal debts. The defendant accepted that those personal debts had nothing to do with Ms Fahey whatsoever. The defendant agreed that there was no documentary record of the $100,000.00 transaction apart from bank transfer records.
With regard to the earlier discussed amount of $200,000.00, the defendant accepted that in October 2007 he had arranged for this amount to be transferred from Ms Fahey’s AXA account to an Osvest account to be used for the purpose of derivative trading. The defendant asserted that the so-called loan agreement protected Ms Fahey in respect of the $200,000.00 transaction. The defendant accepted that the monies were effectively lost in derivative trading.
The defendant suggested an explanation. He asserted that he was anxious to meet Ms Fahey’s ongoing expenses, particularly her medical expenses, from interest earned on the investment of the capital, as he wished to retain the capital itself so that a gift to a charity could be effected on Ms Fahey’s death.
The defendant offered no explanation for transferring the monies from Ms Fahey to Osvest other than asserting that Osvest had an account with a broker. In cross-examination, the defendant provided the following account:
QAnd there was no chance, given her age and size, of the estate that Miss Fahey was going to run out of money.
AUnlikely.
QSo I repeat, there was no need for you to transfer this $100,000 on to the share market, was there.
AWith the benefit of hindsight there was no absolute need to do so but I was keen to at all times preserve the capital if at all possible notwithstanding the potentially looming medical expenses.
QYou didn’t do this, did you, for the purposes of kick-starting, as it were, Osvest.
ANo, that is not the case.
QOsvest had not got underway at this stage, in any form of investment, as we can see the bank statement from the Macquarie.
ANo, it’s main business plan had not been activated.
QSo this was the first sorting, was it, into activating Osvest.
ANo.
QAnd this money had nothing whatever to do with Osvest, on your account, it was just coincidental that there was a need, according to you, to invest this money, preserved capital, at the same time as Osvest had an account in the Macquarie Bank.
AOsvest was in start-up phases and all of these events just happened to occur at the same time.
QWhy couldn’t you open an account in Miss Fahey’s name with the Macquarie Bank.
AI could have.
QWhy didn’t you.
AThe trading account in the name of Osvest was already there and established.
The defendant acknowledged that he was responsible for the removal of the amounts of $100,000.00 and $200,000.00 from Ms Fahey’s Commonwealth Bank account and the transfer of these monies to the Osvest bank account. He agreed that both transactions had been his idea:
Q     It was your idea, wasn’t it, to take $100,000 initially out of the AXA account.
A     It was my recommendation, yes.
Q     Your idea.
A     Yes, it was my idea.
Q     And it was your idea to take the $200,000 out.
A     Yes.
Q     And was your idea to invest the original $100,000 on the share market.
A     Yes.
Q     And it was your idea the [sic] invest the $200,000 on the futures market.
A     Eventually, yes.
The defendant acknowledged that the recipient of the monies, Osvest, did not, at the time of the transaction, have the ability to repay the funds. In particular, in cross-examination, the defendant gave the following evidence:
Q     Well, there was no security.
AThe loan agreement is an instrument of security recoverable against the assets of Osvest.
Q     But Osvest didn’t have the money to pay $200,000, did it.
A     At that time, no.
Q     And there was no guarantees from directors associated with that.
A     No.
Q     There was no mortgage on the real estate belonging to anyone that secures that.
A     Osvest didn’t own any real estate.
Q     It didn’t own much at all.
A     It didn’t have a lot of assets, no.
Q     Certainly not enough to pay $200,000.
A     No.
The defendant, in evidence, accepted the prosecution case as to the transfer of the monies and their use by Osvest for share trading. There was no dispute as to the detail of the financial dealings with Ms Fahey’s property or monies. The defendant accepted that at relevant times he remained a legal practitioner. He asserted that he had discussed the steps taken with his father. He claimed that he had not misused his powers as Ms Fahey’s attorney and he asserted that he had not acted dishonestly at any time. In essence, his defence was that he had acted with legal authority and that he had done so without any dishonesty.
Dishonesty – the Statutory Scheme
Part 5 of the Criminal Law Consolidation Act includes sections 130 to 144, which address offences of dishonesty. Division 1 of Part 5 addresses the interpretation and meanings of “dishonesty” and “consent of owner” and also addresses the operation of Part 5. Division 2 provides for the offence of theft. Divisions 3 to 9 address the offences of robbery, money laundering and dealing with instruments of crime, deception, dishonest dealings with documents, dishonest manipulations of machines, dishonest exploitation of advantage and miscellaneous offences of dishonesty. As earlier noted, the defendant was charged with two counts of theft contrary to section 134.
One of the questions arising on this appeal concerns the elements of the offence of theft. Those elements are a dealing with property dishonestly without the owner’s consent and, further, intending to either deprive the owner permanently of the property or intending to make a serious encroachment on the owner’s proprietary rights. Section 134 provides:
(1)     A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)    to deprive the owner permanently of the property; or
(ii)     to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years
(2)A person intends to make a serious encroachment on an owner's proprietary rights if the person intends—
(a)     to treat the property as his or her own to dispose of regardless of the owner's rights; or
(b)     to deal with the property in a way that creates a substantial risk (of which the person is aware)—
(i)    that the owner will not get it back; or
(ii)that, when the owner gets it back, its value will be substantially impaired.
(3)     It is possible to commit theft as follows:
(a)     a person may commit theft of property that has come lawfully into his or her possession;
(b)     a person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property.
Example—
Suppose that land is vested in a trustee in a fiduciary capacity. She is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land as security for a personal liability that is unrelated to the trust. In this case, the trustee commits theft of the interest created by the mortgage.
(4)If a person honestly believes that he or she has acquired a good title to property, but it later appears that the title is defective because of a defect in the title of the transferor or for some other reason, the later retention of the property, or any later dealing with the property, by the person cannot amount to theft.
It is to be noted that section 134(2), as extracted above, provides that a person intends to make a serious encroachment on an owner’s proprietary rights if that person intends to treat the property as his own to dispose of regardless of the owner’s rights, or to deal with in a way that creates a substantial risk. It is also to be noted that section 134(3)(b) makes it clear that a person may commit theft of property by the misuse of a power. The subsection addresses the circumstance of a person acting as an agent or trustee with a capacity to deal with property. The subsection is wide enough to include a person acting as attorney, as this is a form of agency.
Section 130 of the Criminal Law Consolidation Act includes definitions of “owner” and “property”. When regard is had to these definitions, it is clear that Ms Fahey was the owner of property within the meaning of section 130.
Section 131 of the Criminal Law Consolidation Act defines dishonesty and, inter alia, provides:
(1)A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is so acting.
(2)The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience and not on the basis of evidence of those standards.
Subsection 131(5) is concerned with an honest but mistaken belief and is in the following terms:
The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
Example—
A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A's umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault.
Section 132 addresses the meaning of the phrase “consent of owner” and provides:
(1)     A reference to the consent of the owner of property extends to—
(a)     the implied consent of the owner (or owners); or
(b)     the actual or implied consent of a person who has actual or implied authority to consent on behalf of the owner (or owners).
(2)A person is taken to have the implied consent of another if the person honestly believes, from the words or conduct of the other, that he or she has the other's consent.
(3)However, a person who knows that another's consent was obtained by dishonest deception is taken to act without consent.
The Judge’s Directions
The Judge, when summing up, directed the jury to consider each count separately and having regard only to the evidence relevant to each particular count. Appropriate directions were given regarding the burden of proof, the assessment of witnesses and the assessment of evidence. No complaint was made about these matters either at trial or on appeal.
The members of the jury were directed as to the elements of the offence of theft and, in that respect, the Judge provided the following direction:
The offence itself is set out in a statute of parliament, however, you will be pleased to know I will not be reading that out to you but I direct you that these following elements have to be proved beyond reasonable doubt; as I have said, all of them.
Firstly, the accused must be proved to have dealt with property. That is the first element.
Secondly, it must be proved that he did so dishonestly.
Thirdly, in this particular case it must be proved that he misused the powers that were vested in him which allowed him to deal with the property of another person, that other person being Miss Fahey or the executors of her will because, of course, as you know, she died part-way through these allegations.
Fourthly, at the time of dealing with the property in that way he intended to make a serious encroachment on the owner’s proprietary rights and he would do that if he dealt with the property in a way that creates a substantial risk of which he was aware that either the owner would not get it back, or, if the owner gets it back, its value will be substantially impaired.
So they are the four element that have to be proved beyond reasonable doubt. They are a mouthful but I will go back to them in a little more detail and I say to you, ladies and gentlemen, when you eventually retire in the not too distant future, if there is any confusion please come back and I will do it again. Let me say this: although it’s a mouthful, those four elements are pretty straightforward when you analyse them.
The Judge addressed each of the elements separately with reference to the evidence led at trial. The Judge observed that there appeared to be no dispute that the defendant had dealt with property of Ms Fahey.
The Judge addressed the element of dishonesty in the following terms:
The second element that has to be proved is that he did this dishonestly. Ladies and gentlemen, this might be one of the real issues in this case that you have to decide. To have done it dishonestly it must be proved that what he did was dishonest according to the standards of ordinary people and he knew that was so. What is dishonest according to the standards of ordinary people is a matter for you, the jury, as representatives of the community to decide. You decide that question, ladies and gentlemen, not me, not anybody else. So if you find it proved beyond reasonable doubt that what he did was dishonest according to the standards of ordinary people, and he knew that was the case. So you have to find that, (a), it was dishonest according to normal standards of ordinary people and (b) he knew it was dishonest according to the normal standards of ordinary people. Then that second element would be made out. I hope that is clear, ladies and gentlemen, and that is very much your decision. You have heard all of the facts, you have heard both the prosecution case and the defence case, you will decide that question.

The Judge then turned to the element that the property was dealt with without the owner’s consent. The Judge determined to direct the jury having regard to the terms of section 134(3)(b) as he considered that it was the prosecution case that there had been a misuse of the power of attorney. As discussed above, Ms Fahey was mentally incompetent at the relevant times and did not give consent to any specific transaction. Rather, the defendant was empowered to act as attorney, but subject to issues of abuse and misuse of power. The Judge observed:
The third element is it must be proved that he misused the powers that were vested in him in dealing with the property. Now, ladies and gentlemen, even if the property came into his possession lawfully which in this case it did, there is no dispute about that. He had a power of attorney and it was a perfectly legal instrument, then it must be proved for this third element to be made out, that he misused the powers that were vested in him by the power of attorney and knowingly misused those powers. In deciding that question you will bear in mind of course that as a power of attorney his responsibility is to act in the best interests of Miss Fahey, the donor of that power of attorney. So that is the third element, that he misused the power given to him by that power of attorney.
Finally, the Judge turned to the fourth element, an intention to make a serious encroachment on the owner’s proprietary rights. On this topic, the Judge directed the jury:
The fourth element is if those other three elements are proved beyond reasonable doubt it must be proved that he intended to make a serious encroachment on Miss Fahey’s proprietary rights, and he would do that if it is proved that by dealing with the property in the way that he did, he intentionally created a substantial risk that Miss Fahey would not get the money back or if she did get it back its value would be substantially impaired and he knew that to be so.
The Judge, having observed that the matter was complicated, summarised the position as follows:
[The defendant] dealt with the property. There appears to be no dispute about that.
[The defendant] did so dishonestly, and you have heard my directions about that. That is for you to decide and [the defendant] must intentionally do it, knowing it was dishonest.
Having come by the property lawfully, [the defendant] intentionally misused the powers given to him by the power of attorney.
In doing that, [the defendant] intended to make a serious encroachment on Miss Fahey’s rights in relation to that property, and it must be proved that [the defendant] did that because [the defendant] knew it would create a substantial risk that Miss Fahey would either not get the money back or its value would be substantially impaired. I hope that is clear. If it is not please come back.
The Appeal
A number of complaints were advanced on appeal.
Amendment of Particulars
It was contended that the Judge erred in allowing the prosecution to amend the particulars of counts 1 and 2 on the Information as the amendments led to a substantial miscarriage of justice.
The power of the Court to amend an Information is found in section 281(2) of the Criminal Law Consolidation Act, which provides:
When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
Once amended, section 281(3) provides that an Information is to be treated, for the purposes of the trial and all connected proceedings, as having been presented in the amended form.
In Ayles,[3] Doyle CJ, with whom the other members of the Court of Criminal Appeal agreed, discussed the reach of section 281(2). In particular, the Chief Justice observed:[4]
[3] R v Ayles (2007) 97 SASR 78.
[4] R v Ayles (2007) 97 SASR 78, 83
The provision is modelled on, and similar to, s 15 of the Indictments Act 1915 (UK).
As the Court of Criminal Appeal said in R v Martin [1962] 1 QB 221 at 227, the legislation was passed for the purpose of doing away with "technicalities and redundancies of pleading". It is clear that Parliament's intention was that the powers of amendment should be extended. The court went on (at 228) to doubt whether, after arraignment:
... a new count can be added at all as the defendant will not have pleaded to it nor, if the trial has started, have been put in charge of the jury on it; and if it were made, injustice ... would almost certainly be caused.
As will appear, later English cases have not accepted that the addition of a new count is beyond the power.
There are two points worth noting about the South Australian provision. The power conferred by subs (2) may be wider than the English equivalent, which applies only to an indictment that is defective. Secondly, and this is relevant to the power to add a new count, the English equivalent of subs (3) provides only that once a note of the order for amendment has been endorsed on the indictment, it is to be treated for all purposes "as having been signed by the proper officer in the amended form". The South Australian provision provides that the information as amended is to be treated "as having been presented in the amended form". On its face that means that the trial is to proceed as if the information was in the amended form from the outset, when it was first presented: see s 275(1) of the CLCA. However, I recognise that the power to amend operates within the context of well-established rules of criminal procedure, and assumes their existence.
The other point to be made is that the equivalent provisions in other States are not always in the same terms as is the South Australian provision. For example, the Queensland equivalent that was considered in Maher v The Queen (1987) 163 CLR 221 permits an order for amendment only if the "variance, omission, or insertion, is not material to the merits of the case". That is a restriction that does not appear in the South Australian provision: see Maher (at 230 and 232-233).
The power to amend arises if an information is "defective" or if there is a variation between a particular and the evidence. The court must satisfy itself that one of these conditions is satisfied, before the power arises.
The power to amend is clearly intended to be a wide one. The court is able to make such order "as the Court thinks necessary to meet the circumstances of the case", subject only to that causing injustice, usually in the form of prejudice or unfairness to the accused.
Doyle CJ then reviewed English authority before returning to Australian decisions, noting that the Australian courts had treated the power to amend as a wide power, being wide enough to remedy material defects in a charge and to go so far as to substitute a more serious offence for a lesser offence.
Ayles was the subject of a High Court appeal.[5] The Court dealt primarily with issues not germane to the present proceeding. All members of the Court recognised the wide reach of section 281(2).[6]
[5] Ayles v The Queen (2008) 232 CLR 410.
[6] In particular, Kiefel J, with whom Gleeson CJ and Heydon J agreed, observed in Ayles v The Queen (2008) 232 CLR 431 at [69]:
On the appeal it was not argued that an amendment of the kind ordered was not contemplated by s 281 of the [Criminal Law Consolidation Act]. Doyle CJ dealt with this matter in his reasons for judgment. His Honour observed that both English cases and Australian cases recognise that the power of amendment given by s 5 of the Indictments Act 1915 (UK), and State and Territory equivalent provisions, permits the addition of a new charge, so long as no injustice is caused. ...
[Footnotes omitted.]
The complaint on the appeal challenged the Judge’s rejection of the submission that allowing the amendment would cause substantial prejudice to the defendant so as to cause an injustice.
Counsel for the defendant on the appeal contended that the expanded dates of the particulars to both counts would alter what was described as the “jury’s focus” on the allegations of misuse of power. It was asserted that this was a particular concern in respect of the first count, as it alleged a period of time extending beyond Ms Fahey’s death. It was also complained that the defence had conducted its case to meet the “formatted” prosecution case. It was asserted that the entire nature of the prosecution case had changed as a result of the amendments to the particulars.
The submissions of the defendant confronted several difficulties. The evidence led by the prosecution as to the relevant transactions and of the consequent derivative trading was not the subject of any objection on the basis that matters outside the reach of the particulars were being addressed. The suggestion that the jury’s focus of attention might have been misplaced could have been readily addressed in counsel’s closing submissions and the Judge’s summing up. The suggestion that the defence had conducted its case to meet the “formatted” prosecution case may be accepted. However, it does not follow that any relevant prejudice arose. If there was a need to further question any prosecution witness, an application for recall could have been made. No such application was made.
I do not consider the defendant to have been prejudiced by the amendment to the first count. The problems confronting the prosecution in establishing what had occurred, and in being able to present it in an understandable and manageable way, was a consequence of the way in which the defendant dealt with Ms Fahey’s monies. The relevant transfers were effected by the defendant. Ultimately, in the course of his evidence, the defendant acknowledged all relevant transactions. He was the author and master of the transactions. There was no dispute as to the actus reus. It is difficult to perceive how any material prejudice could have arisen. Similar reasons provide an explanation for why the defendant was not, in any material way, prejudiced by the amendment to the second count.
In my view, it is disingenuous of the defendant to say that his defence was prejudiced in any material way by the amendments to the particulars to each count. The defendant was in a position of trust or, at the very least, in a fiduciary relationship. He was charged with the responsibility of dealing with Ms Fahey’s assets in her interest. This was conduct by a solicitor who was in a position to fully understand the significance of his conduct.
A review of the defendant’s evidence does not reveal that he encountered any difficulty in meeting any factual aspect of the prosecution case. The substance of his case was to admit all the relevant transactions and then to assert that he had acted lawfully, within authority, with Ms Fahey’s consent and that he had not acted dishonestly.
It was well within the discretion of the Judge to allow the amendments to the particulars to both counts. As earlier noted, the defendant did not seek to call any witness and did not seek an adjournment. On appeal, the defendant did not identify any further witness who would have been called. No particularity of how the case would have been otherwise presented was provided. I see no basis on which this Court should conclude that the Judge’s discretion miscarried. I do not accept that the defendant has made out any case of unfair prejudice or that there has been any substantial miscarriage of justice.
A Case to Answer
On the appeal, it was contended that the Judge had erred as a matter of law in finding that the defendant had a case to answer. It was suggested that the Judge should have found that the prosecutor had not discharged the onus of proving a lack of consent under section 134(1)(b) of the Criminal Law Consolidation Act. It was argued that misuse of powers did not give rise to a lack of consent. In particular, it was contended that Ms Fahey had given consent at the time of the execution of the enduring power of attorney. It was also argued that section 7 of the Powers of Attorney and Agency Act 1984 (SA) provided protection to the defendant in that the provision sanctioned the defendant having authority to do on behalf of Ms Fahey anything that he could do lawfully as an attorney. It was suggested that only a civil sanction applied. This issue is discussed later in these reasons.
I do not consider that the Judge erred in finding a case to answer. This finding was made well within his discretion. The points of law that the defendant seeks to agitate can be conveniently raised on his appeal against conviction.
The Adequacy of the Directions
Earlier in these reasons, the relevant provisions of the Criminal Law Consolidation Act have been set out. Those provisions include section 134. One of the elements of the offence of theft is that the prosecution must establish that the defendant dealt with property without the owner’s consent. It is to be accepted that the defendant, by the power of attorney, had the power to sell property of Ms Fahey. It does not follow that the defendant had Ms Fahey’s consent to exercise that power in an uncontrolled manner so as to abuse her interests or misuse her property. This is made clear by section 134(3), which provides that a person may commit theft of property by the misuse of powers that are vested in that person as agent or trustee, or in a similar capacity that allows the person to deal with the property. It is also to be recalled that section 132 makes it clear that a reference to the consent of the owner extends to implied consent.
On the prosecution case, Ms Fahey had given the defendant power to deal with her property and that power endured beyond her incapacity. However, that power was subject to fiduciary duties and, when the power was exercised so as to give title to Ms Fahey’s property to the defendant, the defendant was subject to a trust. On the prosecution case, the defendant abused and misused this power by transferring Ms Fahey’s monies to the account of a corporate entity that the defendant controlled. To my mind, it was open to the jury to conclude beyond reasonable doubt that, in these circumstances, there had been a misuse of power, and that Ms Fahey did not consent to the transfer of her property to Osvest. Not only do I consider that this conclusion was open, I go further; the prosecution case on this element of the offence was overwhelming.
I reject the submission that the Judge made an error of law on the question of consent. Further, I repeat, the evidence on that topic was overwhelming.
The defendant’s counsel submitted that the Judge erred as a matter of law in failing to direct the jury that the issue of misuse of power under section 134(3)(b) of the Criminal Law Consolidation Act had to be “referrable” to section 7 of the Powers of Attorney and Agency Act. That section provides:
The donee of an enduring power of attorney must, during any period of legal incapacity of the donor, exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, shall be liable to compensate the donor for loss occasioned by the failure.
Counsel suggested that the test applicable for misuse of power was that found in section 7. It was said that the test for misuse of power was referrable to the concept of reasonable diligence.
I do not consider that section 7 is a code as to misuse of power. It imposes a positive statutory duty on a donee of an enduring power of attorney to act with reasonable diligence to protect the interests of the donor. The section does not address abuse of power or misuse of power. The section does not address fiduciary or trust obligations. The section does not address the circumstance of a donee of an enduring power of attorney acting to transfer the property of the donor to the donee for the donee’s personal use, or for the use of a corporate entity controlled by the donee. The section does not address theft by a donee.
Earlier in these reasons I have set out the text of section 134(3)(b) of the Criminal Law Consolidation Act. That subsection includes an example that provides some analogy to the prosecution case in the present proceeding. The example postulates land vested in a trustee in a fiduciary capacity. The trustee is empowered under the instrument of trust to mortgage the land for the purposes of the trust. The trustee dishonestly mortgages the land for the security of a personal liability that is unrelated to the trust. Parliament then, through example, indicated that a trustee who so acted committed the theft of the interest created by the mortgage. One may extrapolate from the example to the present case. The prosecution contends that the defendant was empowered under the enduring power of attorney to sell the land of Ms Fahey for the purposes or benefit of Ms Fahey. To divert the proceeds of the sale to the account of a corporate entity over which the defendant had control was to use the property of Ms Fahey for purposes utterly inconsistent with the grant of the power. In these circumstances, the defendant committed the theft of the property transferred to Osvest.
In my view, the Judge made no error of law in failing to direct the jury that the test of misuse of power was governed by the terms of section 7 of the Powers of Attorney and Agency Act. I consider that it was open to the jury to be satisfied beyond reasonable doubt that the defendant had misused the powers vested in him by the power of attorney and had committed theft by that misuse of power subject to the remaining elements set out in section 134 being established beyond reasonable doubt. I consider that the prosecution case on misuse of power was overwhelming.
Finally, counsel for the defendant complained that the Judge erred as a matter of law in declining to direct the jury as to section 131(5) of the Criminal Law Consolidation Act in relation to the element of dishonesty. Earlier in these reasons I have set out the text of section 131(5). That section provides that the conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he has a legal right to act in that way. Parliament provided an example within section 131(5) which postulated a mistaken belief as to the theft of an umbrella and the use of force to recover the umbrella. The section contemplates a defence of an honest and mistaken belief.
The Director submitted that if the jury were to conclude that they were satisfied that the defendant knew that his conduct was dishonest according to the normal standards of ordinary people and that the defendant knowingly misused his powers, this would necessarily negate the possibility that he honestly but mistakenly believed that he had a legal right to act in the way that he did. In my view, this submission should be accepted. The terms of the Judge’s direction to the jury required the jury to be satisfied that the defendant knew that his conduct was dishonest. It is evident from the jury’s verdict that they made this finding.
It is difficult to understand how section 131(5) could have any application in the present proceeding. It cannot be seriously suggested that the defendant, as a solicitor, believed that he could use his powers to transfer property from Ms Fahey to a corporate entity that he controlled for the purpose of private derivative trading. This was not a case of an honest and mistaken belief. In the course of his summing up the Judge directed the jury that they had to find beyond reasonable doubt that the defendant was dishonest. The Judge directed that if they did not make this finding, they were bound to acquit the defendant on both counts.
A Further Matter – The Proviso

On the first count, the defendant transferred funds from Ms Fahey’s account to accounts that he controlled and did so with a view to an entity that he controlled, Osvest, engaging in derivative trading. Osvest did not have the assets to refund the $100,000.00 the subject of the first count. Those funds had been removed from Ms Fahey’s account for no good reason. As the defendant acknowledged, they were transferred to Osvest and traded in its name. Those funds were used as the start up funds for Osvest. In the event that the derivative trading caused losses and the monies were not recoverable, Ms Fahey would be left with a worthless claim against Osvest. This transaction involved a breach of the defendant’s obligations as a trustee and as a fiduciary. The defendant had been a solicitor in practice for some 20 years. It stretches credulity to suggest that he did not understand the breach of trust in which he engaged. It is not possible to discern how the transaction could legitimately be seen to benefit Ms Fahey or to be in her interests.
On the second count, the $200,000.00 was ostensibly lent by Ms Fahey to Osvest. The defendant prepared the loan agreement. He executed that agreement on behalf of Ms Fahey as her attorney. He controlled Osvest as the holder of 90 of the 100 shares. No security was offered. As set out above, Osvest did not have assets sufficient to repay the debt. As the monies were transferred by a trustee to an entity that the trustee controlled, this was plainly a breach of trust. It was an improvident transaction without any security provided to protect Ms Fahey’s interest. The suggestion that the so-called loan agreement provides some form of security is wrong. The defendant, as an experienced solicitor, could hardly have thought to the contrary. Again, it stretches credulity to suggest that the defendant did not understand the breach of trust in which he was engaged. It is not possible to discern how the transaction could legitimately benefit or be seen to benefit Ms Fahey or to be in her interests.
The defendant acknowledged that he had been responsible for the transfer of Ms Fahey’s monies to the account of Osvest. He proffered an explanation. He suggested that as Osvest already had an account with the sharebroker, it was expedient to effect a transfer of Ms Fahey’s monies to Osvest. This suggestion lacks credulity. Obviously, an account could have been opened in Ms Fahey’s name with the broker. Common sense would suggest that a lay person would understand that such conduct would be inappropriate. A practising lawyer of 20 years experience would have understood that such conduct was completely inappropriate and amounted to a gross breach of trust. Common sense would suggest to a layperson that the transactions could not be viewed as being in the interests of Ms Fahey. A practising lawyer of 20 years’ experience could not have understood that either transaction was in the interests of Ms Fahey.
If, contrary to my conclusions, the trial Judge erred either in allowing the amendments or in his directions, consideration should be given to the application of the proviso. Section 353(1) of the Criminal Law Consolidation Act provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In Weiss, the High Court discussed the proviso as contained in section 568(1) of the Crimes Act 1958 (Vic), a subsection in comparable terms to section 353(1) of the Criminal Law Consolidation Act, and observed:[7]
The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred".
...
Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
Reference to inevitability of result (or the converse references to "fair" or "real chance of acquittal") are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to "the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record". But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred.
[Footnotes omitted.]
[7] Weiss v The Queen (2005) 224 CLR 300, [35], [39]-[40]; see also Baini v The Queen (2012) 246 CLR 469.
The Court in Weiss then discussed the statutory task and the proviso, and said:[8]
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.
[Footnotes omitted.]
[8] Weiss v The Queen (2005) 224 CLR 300, [41]-[42].
As earlier observed, my review of the evidence at trial allows the conclusion that there was no dispute as to the actus reus of the two counts of theft. The issue to be resolved by the jury was whether the prosecution had proved beyond reasonable doubt dishonesty on the part of the defendant. As I have earlier indicated, in my view, the prosecution case was overwhelming. As summarised above, the defendant, a practising solicitor, acted in breach of trust or, at the very least, in breach of fiduciary duty in transferring monies from the account of Ms Fahey to a third party, namely, Osvest. Relevantly, the defendant was the controller of Osvest, being the holder of 90 percent of the issued capital and also being its chief executive officer. The defendant was able to effect the transfer of the monies through his being the donee of Ms Fahey’s enduring power of attorney. At all relevant times, Ms Fahey was suffering from dementia, approaching the age of 100 years and unable to manage her affairs. No legitimate explanation was offered for why Ms Fahey would have any interest in transferring funds to Osvest. To the contrary, Osvest did not have the capacity to repay the monies. The defendant’s plan was to provide funds to Osvest to enable it to engage in high-risk share trading. The second of the advances was the subject of a so-called loan agreement between Ms Fahey and Osvest. The defendant admitted that this transaction involved an acute conflict on his part and although he asserted that the agreement provided security, this plainly was not the case.
For my part, in the event that there was some error by the trial Judge, I would apply the proviso. In doing so, I would apply the observations of the High Court in Weiss. To be explicit, in the event that any error is established on the part of the trial Judge, I consider that no substantial miscarriage of justice has actually occurred.
Conclusion
I would dismiss the appeal.
PEEK J.
Appeal against convictions for theft.
PART 1: INTRODUCTION AND SUMMARY OF EVIDENCE
The appellant was charged with three counts of theft contrary to s 134, Criminal Law Consolidation Act 1935. Counts 1 and 2 related to property of the late Ms Mary Fahey for whom the appellant had held an enduring power of attorney. Count 3 related to property of the estate of the late Ms Jean Batten (Ms Batten) for whose executor the appellant acted as solicitor. The jury found the appellant not guilty of count 3 upon the direction of the Judge. The appellant was convicted of counts 1 and 2 and appeals against those convictions. Counts 1 and 2, as finally amended, appeared as follows:
First Count
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter David Kerin between the 28th day of June 2007 and the 22nd day of February 2008 at Adelaide or other places, dishonestly dealt with property, namely a part of a chose in action in the amount of $100,000.00 held in the name of Mary Eileen Fahey in account no 06 5117 00105394 with the Commonwealth Bank, without the owner’s consent, intending to deprive the owner permanently of the property or to make a serious encroachment on the owners proprietary rights.
Second Count
Statement of Offence
Theft. (Ibid).
Particulars of Offence
Peter David Kerin between the 21st day of September 2007 and the 23rd day of October 2007 at Adelaide or other places, dishonestly dealt with property, namely a chose in action in the amount of $200,000.00 held in the name of Mary Eileen Fahey with Generations Investment Portfolio, AXA, policy number 130056-L9-01, without the owner’s consent, intending to deprive the owner permanently of the property or to make a serious encroachment on the owners proprietary rights.
The following summary is partly taken from agreed facts and is intended to be non-controversial background material and not findings of fact in favour of, or against, the appellant. If there be a retrial, the factual matrix may be different.
The background of the appellant
The appellant was admitted as a Barrister and Solicitor of the Supreme Court of South Australia on 2 June 1984 and is the son of Mr Kevin Kerin, who previously practised as a Solicitor in South Australia. The appellant initially worked at his father’s law firm between 1984 and 1987 after which he practised elsewhere until 22 December 2006 when he ceased practising law.
The formation of Osvest Pty Ltd
In 2002 or 2003, the appellant met a Mr Paul Williams (Mr Williams). The appellant and Mr Williams arranged for the incorporation of a company, Osvest Pty Ltd (Osvest), and its registration with the Australian Securities and Investments Commission (ASIC) on 15 September 2004. Osvest was formed with a view to obtaining an Australian financial services licence to be used for the purpose of raising funds that were to be passed to an ultimate investment vehicle, “ClubInvest”. The licence was granted by ASIC on 15 September 2005.
Mr Williams was appointed a director of Osvest. The appellant was also initially appointed as a director and the secretary of Osvest, but resigned these positions on 28 June 2005 and assumed the position of Chief Commercial Officer instead. On 28 December 2006, Mr Robin Golding was appointed as the Chief Investment Officer.
On incorporation, Osvest issued 100 ordinary shares, 10 of which were held by Mr Williams. The remaining 90 shares were held by Armalite Finance Pty Ltd (Armalite) on trust for Reliability Plus Ltd (Reliability Plus). The appellant was the sole director and shareholder in Armalite at all relevant times.
It was intended by the appellant and Mr Williams that a panel of traders with experience in different investment spheres would be appointed to carry out Osvest’s trading. Mr Rupert Clifton-Bligh, of Odyssey Funds Management Limited, was proposed as one of these traders by the appellant and on 9 February 2007 he gave a presentation to the Board of Osvest on his previous operations. A second trader considered by Osvest was Mr Leonard Abrahams, a derivatives trader who had been recommended to Mr Williams.
On 29 October 2004, the appellant and Mr Williams opened a Westpac Banking Corporation bank account (account number 035-061 21-2040) in the name of Osvest (the Osvest Westpac account). On 3 May 2007,[9] they also opened a further Osvest account (account number 122645260) with Macquarie Investment Management Ltd (the Osvest Macquarie account) at which time the appellant described himself as the Chief Operations Officer for Osvest with authority to act on its behalf.[10] In addition, on 1 and 2 May 2007, respectively, a margin lending account and an equity trading account was opened in the name of Osvest with Morgan Stanley Smith Barney (the Osvest Morgan Stanley share trading accounts). Mr Clifton-Bligh was authorised to operate these accounts.
[9] This date comes from the agreed facts (exhibit P5) although I note that the account itself indicates 2 May 2007 (exhibit P2, 115).
[10] T87.
It was the prosecution case that the appellant wished to pool funds from various sources in order to generate large profits through the trading of financial instruments and that the appellant wished to demonstrate trading success as quickly as possible so that large amounts of capital could be raised from larger investors and the Osvest business could grow accordingly.
Ms Mary Fahey
Ms Mary Fahey (Ms Fahey) was born on 7 May 1907. As at 18 December 1985 (when aged 78) she was a client of Mr Kevin Kerin and his firm of solicitors for whom the appellant worked. On that date she appointed the appellant and his father her joint and several attorneys pursuant to an enduring power of attorney.[11] The power of attorney was duly registered with the Lands Titles Office on 10 January 1986.
[11] See exhibit D4.
In 1993 the appellant made a Will for Ms Fahey.
Sometime in 2003, Ms Fahey became a resident of the Lourdes Valley Nursing Home where she remained until her death. In 2005 the appellant attended on Ms Fahey there and took detailed instructions for the making of a new Will.
On 7 October 2005, Ms Fahey was diagnosed as suffering from dementia and it was determined by Dr Christian Wangel that she was incapable of managing her own affairs.[12] The appellant was advised by the Director of Care of Southern Cross Care Inc of these matters on 26 October 2005. Ms Fahey died on 26 November 2007 when of the age of 100 years.[13]
[12] Exhibit P2, 10.
[13] It would appear that the appellant would have been aware of her death by no later than his receipt of a letter from the solicitor, Mr Myszka, acting for the executors of the estate dated 11 December 2007 to which the appellant replied on 20 December 2007.
On 28 November 2005, Mr Myszka, a solicitor then acting for the Legion of Mary, wrote to the appellant and his father at the law firm, Millennium Law, seeking to explore the possibility of an inter vivos gift of Ms Fahey’s previous residence at 32 Robsart Street, Parkside (the Robsart Street property) being made to the Legion of Mary, such disposition after her death then being included as a term in her most recent Will.[14] On 21 December 2005, the appellant replied on behalf of himself and his father advising Mr Myszka of Ms Fahey’s incapacity. There was further correspondence but on 14 July 2006 Mr Myszka indicated that he was no longer instructed by the Legion of Mary.
[14] By this time, the appellant had effectively stopped practising as a solicitor. The date of formal cessation was 22 December 2006: exhibit P5, [1].
The appellant gave evidence that in late 2006 he received the first of a series of telephone calls from a Mr O’Leary of the Lourdes Valley Nursing Home who raised the matter of Ms Fahey’s accommodation debt at that time and that he in turn raised this matter with his father after a number of such calls. It was decided that the Robsart Street property should be sold. It was sold for a total of $602,000, settlement occurring on 10 April 2007.
The investment of sale proceeds of the Robsart Street property with AXA
On 12 February 2007, the appellant had met with Mr Mark Yeomans, a financial planner, to discuss options for investing part of the expected proceeds of the sale of the Robsart Street property. On 19 February 2007, Mr Yeomans proposed investing the funds in a multimanager fund through the AXA Group (AXA) which was a “balanced fund”, meaning that it was neither ultraconservative nor aggressive and had a large measure of diversification by virtue of its funds being invested through 15 to 20 reputable companies dealing in products including shares, property, and cash. Approximately 70 per cent of the funds were to be invested in growth assets (Australian and international shares and property funds) and 30 per cent in cash and fixed interest assets.
The appellant recommended this proposal to his father and an authority to proceed was signed by the appellant on 2 March 2007. After receiving a cheque for $500,000 on 12 April 2007, Mr Yeomans forwarded the application form and the funds. Subsequently, the Generations Investment Portfolio in the name of Ms Fahey (policy number 130056-L9-01) (the AXA account) was established and credited with this amount.
The balance of the Robsart Street property proceeds remained in Ms Fahey’s account with the Commonwealth Bank (account number 06 5117 00105394) (Ms Fahey’s Commonwealth Bank account) where they had been deposited following settlement on 10 April 2007.
The $100,000 and $200,000 tranches of Ms Fahey’s funds
The subject matter of count 1 (as amended) is “a part of” what I will refer to as a $100,000 tranche of Ms Fahey’s money (the $100,000 tranche) and the subject matter of count 2 is in effect the whole of a quite different $200,000 tranche of her money (the $200,000 tranche).
However, there are overlaps in the events said to comprise the subject of each of the two counts (particularly having regard to changes to the counts brought about by a late amendment of the Information) and, in order to minimise confusion, I will address the facts pertaining to both counts in a chronological sequence and later revert to a consideration of the separate counts.
The transfer of the $100,000 tranche from AXA to Osvest

Uncertainty of verdict can be produced in various ways and sometimes the required analysis is a little more complicated than the factual situations referred to in S v The Queen.[95]
[95] (1989) 168 CLR 266.
As an example, in R v Zampogna[96] the information charged “knowingly had methylamphetamine in his possession for the purpose of selling it to another person”. Police found two bags containing 1.34 grams of methylamphetamine (P5), scales, and several mobile telephones (one had an incoming request for supply of a drug) in the appellant’s car. They also found a bag containing 6.65 grams of methylamphetamine (P8) in his underpants.[97] The appellant gave evidence that he owned P5 but that he was wearing a borrowed coat of another drug user in which he found P8 only when in the company of the police and he then secreted it in his underpants. The amount of 1.34 grams of methylamphetamine was less than the prescribed amount of 2 grams which raised a presumption of possession for sale, but the combined amount of 1.34 grams and 6.65 grams was over that amount. Duggan J (with whom Doyle CJ and Gray J concurred) quashed the conviction on the ground that there was uncertainty in the verdict and stated:[98]
[37]… It is not possible to say whether the verdict was based on possession of both P8 and P5 or P5 alone. This has important implications when it comes to fixing penalty. It is true that trial judges are often required to determine an appropriate factual basis for sentencing when a verdict could have resulted from one of a number of avenues to conviction. However, that task would be difficult in the present circumstances. …
[96] (2003) 85 SASR 56.
[97] R v Zampogna (2003) 85 SASR 56, 58 [5] (Duggan J).
[98] R v Zampogna (2003) 85 SASR 56, 64.
In the present case, the likelihood of an uncertain verdict was contributed to by the combination of the circumstances referred to above, including:
·the form of the amended count 1 as discussed above;
·the late change of course of the prosecution case;
·the late amendment of the Information at that time;
·the supply to the jurors of copies of two inconsistent versions of the Information;
·the likelihood of confusion as to the requirement that there be contemporaneity of dealing, dishonesty, and the requisite intention;
·the lack of assistance given to the jury in relation to the above matters; and
·the real possibility that different jurors may have convicted of different offences.
There is however yet a further important matter directly arising from the amendments to the Information which leads to uncertainty of the verdict on the amended count 1: the death of Ms Fahey.
The death of Ms Fahey
The effect of the death of Ms Fahey on the efficacy of the power of attorney is a further very significant matter that was likely to cause uncertainty of verdict and became of direct relevance as a result of the amendment to count 1.
It is necessary to first place the matter in some perspective. On the first day of the trial (during the course of submissions as to matters of evidence in the absence of the jury), his Honour had raised the topic of the death of Ms Fahey on 26 November 2007, the following discussion ensuing:[99]
[99] T22-23.
HIS HONOUR     Are we going to hear some evidence as to after death whose responsibility it is to invest this money?
MR PRESTON     Mr Myszka, it is anticipated, will give that evidence.
HIS HONOUR     Either as a matter of law, or the power of attorney, or the executor?
MR PRESTON     Once she is dead the power goes.
HIS HONOUR     And this is all done before death, I take it?
MR PRESTON     Not all of it. So there is trading on futures in her estate after her death. Trading of the money that has been taken from the AXA account and placed with -
HIS HONOUR     The taking of the money from the deceased’s account, just remind me again.
MR PRESTON     Takes place before she dies. Pursuant to the power.
HIS HONOUR     And it was placed where?
MR PRESTON     The proceeds of the sale of the house were placed with AXA.
HIS HONOUR     That’s okay?
MR PRESTON     Yes. Then first $100,000 is placed into a Commonwealth Bank account in the name of Ms Fahey.
HIS HONOUR     That’s okay?
MR PRESTON     Yes, and from there that money is transferred by the accused into Osvest.
HIS HONOUR     What about the other? That’s $100,000?
MR PRESTON     Yes, and the $200,000 transfer takes place a little later, the $200,000 goes into Osvest.
HIS HONOUR    Pause there. So the money gets into Osvest before she dies?
MR PRESTON    Yes.
HIS HONOUR    And that’s when you say the offending takes place?
MR PRESTON    Yes.
HIS HONOUR    So it has nothing to do with the executors at that stage?
MR PRESTON    No.
HIS HONOUR    Thank you. Anything else? [Discussion then turned to quite different matters.]   (Emphasis added)
I have no doubt that what the Judge wanted to be clear about here was whether he needed to consider the impact of the death of Ms Fahey on the validity of the use of the power of attorney in relation to the transactions alleged to form the subject of either count 1 or count 2. Further, I have no doubt that what his Honour took from the above exchange (“So the money gets into Osvest before she dies? … And that’s when you say the offending takes place?”), in conjunction with the terms of the original Information then before him, was that the offence in both count 1 (“on or about the 28th day of June 2007”) and in count 2 (“on or about the 21st day of September 2007”) took place before Ms Fahey’s death.
Of course, the prosecutor in the above dialogue briefly alluded to “trading on futures in her estate after her death” but the Judge could not have then foreseen the change in direction that the prosecutor would make some four days later at the end of the prosecution case. At the time of this dialogue on the first day of trial, it would no doubt have appeared to his Honour, in the light of all that the prosecutor did say at this time, that while some trading after Ms Fahey’s death might be led as evidence as some form of uncharged acts or background material, the actual charged offending in both counts 1 and 2 was alleged to have occurred prior to the death.
The jury considered the whole of the prosecution case, and the defence response to it, on the basis of an Information and the prosecution opening that initially presented the case as a trial of two distinct acts of theft said to have occurred respectively on or about 28 June 2007 (count 1) and on or about 21 September 2007 (count 2), both being prior to the death of Ms Fahey on 26 November 2007.
However, the effect of the amendment to count 1 was to transform the previously specific date well before the death to an eight month period from 28 June 2007 to 22 February 2008 which straddled the death on 26 November 2007. The considerations applicable to the two periods before and after the death are very different: during the first respective period (from 28 June 2007 to 26 November 2007) the appellant had power to act pursuant to the power of attorney (subject to the constraints referred to above), whereas during the second respective period (from 26 November 2007 to 22 February 2008) the appellant had no power at all under the power of attorney.
Immediately following the failure of the no case to answer submissions, the appellant gave evidence in his defence. Perhaps understandably, defence counsel led the appellant’s evidence-in-chief in much the same way as he would have had the Information remained unaltered. He led the appellant’s evidence that the appellant considered (rightly or wrongly) that he had power to do what he did under the power of attorney and that he had acted honestly at all times. At no stage did defence counsel address the matter of the death of Ms Fahey in the context of that death bringing to an end any legal right to deal with her funds pursuant to the power of attorney. Somewhat more surprisingly, the prosecutor at no stage during his lengthy cross-examination of the appellant cross-examined as to the matter of the death of Ms Fahey ending any right to deal with her funds.
The Judge also omitted any such comment in summing up. He left count 1 to the jury on the basis that the appellant may have committed theft at any time between 28 June 2007 and 22 February 2008. The only remark that his Honour made as to the death was as follows:[100]
Thirdly, in this particular case it must be proved that he misused the powers that were vested in him which allowed him to deal with the property of another person, that other person being Ms Fahey or the executors of her Will because, of course, as you know, she died part-way through these allegations.
[100] Summing up AB 214.
While the Judge did not direct that the death of Ms Fahey brought to an end any right to deal with her funds, neither did he direct that it did not do so. This is important because in the course of his evidence, Mr Myszka gave the following evidence as to the nature of a power of attorney:[101]
[101] T43-44.
Q     Can you tell us in very brief terms what a power of attorney is?
AIt’s a mechanism by which a person can entrust - a person called a donor can entrust and empower another person called a donee to act on their behalf in the event that they lose capacity, or despite a loss of capacity, in managing their financial and property affairs.
HIS HONOUR
QIt doesn’t have to be just incapacity, does it; I mean if someone is overseas they can leave a power of attorney with someone in Australia?
A     Yes, that is so your Honour.
EXAMINATION
QIs there a distinction between an ordinary power of attorney and an enduring power of attorney.
AYes, an enduring power of attorney remains efficacious, that is to say valid, despite the occurrence of an incapacity on the part of the donor, the person giving or granting the power. Were it not for that the power would lapse upon the incapacity occurring but with an enduring power the enduring power survives that incapacity and its legal effect and its validity continue.
Q     Does the power continue on the death of the donor?
A     No, it does not. It stops at the death of the donor.             (Emphasis added)
I consider that as at the time of the application for the amendments it was, or should have been, apparent that there was a real possibility that making the amendments would render it likely that at least some of the jurors might act upon the evidence which had been presented to them as to the operation of a power of attorney in the form of expert evidence from a very experienced lawyer (or alternatively, they might act upon their own previous experience to the same effect) while other jurors might not. The possibility of an uncertain verdict was quite real and the amendment should not have been made.
The amendment having been made, the conviction on count 1 is bad for uncertainty.
The conviction on count 2 is not bad for uncertainty
I have noted above that the dealings with the $200,000 tranche were, in the scheme of things, more simple than those in relation to the $100,000 tranche. The appellant took part in an arrangement to transfer the $200,000 tranche to an Osvest futures trading account for the purposes of trading financial instruments and, shortly thereafter, the contemplated trading actually occurred. Within quite a short period of time that trading resulted in the loss of the whole of the $200,000 tranche. The arrangement to transfer the $200,000 tranche was effectively charged in count 2 of the Information which, although not a model of drafting to be kept as a cherished precedent, was close enough.
As I understand it, the appellant submitted at the end of the prosecution case that the prosecution case on count 2 entirely ignored the effect of the loan agreement; his position was that the risk of the trading was not relevant to the matter of dishonest intention on count 2 because Ms Fahey was entitled to be repaid by virtue of the loan agreement quite irrespective of whether the trading was profitable or not.
I have found above that the matter of the loan agreement was an important matter for the jury to consider and that the Judge failed to adequately direct them on it. However, its existence did not preclude the formation of a case to answer.
I have also found above that while I consider the amendment to count 2 to have been unnecessary, it did no harm in that it did not affect the basis or structure of the prosecution case on count 2.
PART 7: WAS THERE A CASE TO ANSWER AND WERE THE VERDICTS UNREASONABLE?
I understood the appellant to submit that his complaints in relation to the finding of a case to answer were bound up with his arguments as to the granting of the amendment application and that in so far as it is submitted that the evidence does not support a finding of guilt, such complaint is to be considered under the unreasonable verdict ground since that route affords a wider purview of review of a jury verdict and, in this case, permits the Court to have regard to the whole of the evidence including that given by the appellant.
In assessing the submission that there was no case to answer on charges of theft in relation to either the $100,000 tranche or the $200,000 tranche and also in conducting the independent review of the whole of the evidence as required by the invocation of the ground of appeal that the verdicts are unreasonable,[102] relevant matters include the following.
The lack of any real need to generate income in circumstances of risk and the motivation of the appellant
[102] M v The Queen (1994) 181 CLR 487, 492-493 (Mason CJ, Deane, Dawson and Toohey JJ).
As at June 2007, Ms Fahey was 100 years of age; her assets included the proceeds of the sale of the Robsart Street property and were sufficient to generate a reasonable income stream from very secure investments; even if medical expenses were such as to require some dipping into her capital, it was clear that her capital would comfortably last her life span. It would seem that there was no need (from Ms Fahey’s point of view) to transfer her funds from the relative safety of the AXA investment account to a relatively more risky environment. However, on the evidence there were reasons (from the appellant’s point of view) for Osvest to obtain the use of the $200,000 tranche so as to be able to make a profit on it and to promote the Osvest business. There were also reasons to obtain the use of the remainder of $100,000 tranche to use in futures trading in an effort to recoup the loss of the $200,000 tranche in circumstances where Osvest was required to repay that sum (plus interest) to Ms Fahey under the loan agreement.
The significance of the death of Ms Fahey
I have referred above to the significance of the death of Ms Fahey on 26 November 2007. [103] The evidence would suggest that the appellant must have known of her death at the latest by the time of his receipt of the letter from Mr Myszka, solicitor, dated 11 December 2007 (which he answered on 20 December 2007). It was during the immediately following period of January and February 2008 that the appellant was very actively involved in the arranging of the transfer of a portion of the balance of the $100,000 tranche of Ms Fahey’s money in an unsuccessful attempt to recover the recent loss of the $200,000 tranche of her money; indeed, the appellant actively “supervised” that trading in person. However, he revealed none of this to the executors of Ms Fahey’s Will through Mr Myszka or otherwise.
[103] Exhibit P5, [19].
Further, there is the important question of whether the appellant actually knew that the power of attorney was ineffectual from the date of Ms Fahey’s death; if he did, the continued use of the power of attorney would appear to be both invalid and also redolent of dishonesty.
The transfer of $20,000 from the BrokerOne/MF Global account to the Osvest Westpac account on 22 February 2008
It is to be noted that the amount of $20,000, which was transferred from the BrokerOne/MF Global account back to the Osvest Westpac account on Friday, 22 February 2008 at the direction of the appellant, apparently represented profits generated by that week’s supervised trading. This was derived from trading on funds from the original $100,000 tranche rather than the $200,000 tranche which was said to be governed by a loan agreement and accordingly, it would seem that the $20,000 should have been regarded as the property of Ms Fahey. However, it was used for the purposes of Osvest: the balance of the Osvest Westpac account was immediately used to pay an invoice to Cogent Capital on 22 February 2008 for $11,000 and an invoice to IB Funds of $16,000 on Monday, 25 February 2008; a further amount of $11,000 was withdrawn on 29 February 2008 and paid to Mr Abrahams’ company. These circumstances could be indicative of dishonesty on the part of the appellant.
Withdrawal of the last sums from the Osvest BrokerOne/MF Global account
The appellant emailed BrokerOne/MF Global requesting that $3,000 be transferred to the Osvest Westpac account on 8 May 2008. Much later, on 12 December 2008, Mr Williams emailed BrokerOne/MF Global requesting that the entire remaining balance of the account be deposited in the Osvest Westpac account with $5,817.11 being transferred that same day. It would appear from the evidence that none of these amounts were ever returned to Ms Fahey’s Commonwealth Bank account or to her estate in any other form. Although the appellant is not charged in relation to those amounts, again these circumstances could be indicative of dishonesty on the part of the appellant.
Conclusion
I consider that there is a case to answer in relation to both the $100,000 tranche and the $200,000 tranche. I also consider that the two verdicts of guilty, although deeply flawed for the reasons I have given, should not be set aside on an additional basis that they were unreasonable having regard to the whole of the evidence in relation to the $100,000 tranche and the $200,000 tranche. Indeed in carrying out the required review, I have formed the view that the case against the appellant in relation to both tranches is a strong one. The appropriate order is for retrial rather than acquittal.
However, I should add this. While the initial decision to commit the $100,000 tranche to trading in Australian shares appeared to have been charged in the original count 1 at trial, it was announced after the completion of the prosecution case in the circumstances recited above that it could not be suggested that that decision or the share trading itself (which I may compendiously term the share trading matter) could constitute theft. Indeed, it was said that that state of affairs justified the amendment that was made to count 1. In those circumstances, it would now be an abuse of process to rely upon that share trading matter as a charge, as part of a charge, or as uncharged misconduct. However, having said that, the evidence of that share trading matter (including the loss incurred) will be admissible at a retrial as relevant evidence of the events leading up to the alleged acts that constitute the charges and against which background the evidence directly relating to those acts is to be viewed.
PART 8: CAN THE PROVISO BE APPLIED?
I have concluded that a miscarriage of justice has occurred due to the combination of a number of serious errors on the part of the prosecutor and the learned Judge.
The complaints as to misdirections as to the element of non-consent (and the application of s 7, POA Act) and the Judge’s refusal to direct as to s 131(5) apply equally to both counts 1 and 2.
The complaint as to effects stemming from the change of course of the trial and the amendments of the Information apply primarily to count 1. The complaint as to failure to direct as to the relevance of the loan agreement primarily apply to count 2. However, I say primarily because the effects of these errors in the direct context of one count cannot be isolated to the conviction on that particular count.

Looking at the position within a particular count for a moment, the notions of dealing with property, without the consent of the owner and with the intention to make a serious encroachment on the owner’s proprietary rights on the one hand and “dishonesty” on the other hand were so closely related that an erroneous approach by jurors to any of the former matters was likely to have a significant effect on their consideration of the latter matter of dishonesty in relation to that count. This tendency became even more pronounced owing to the fact that the jury were directed in terms of “misuse of powers” (being the element of the offence substituted for lack of consent of the owner by his Honour).
But given all of the background common to the two counts and the significant crossover in the sequence of events that became particularly evident after the amendment to the Information, any impact on the jury’s assessment of the appellant’s honesty within one count must inevitably have carried over into their assessment of his honesty generally, that is to say in relation to both counts.
It is the cumulative effect of the above matters that must be examined in the context of the application of the proviso. In regard to the application of the proviso generally, I mainly have regard to the decision in Weiss v The Queen[104] and the decisions of the High Court since then.
[104] (2005) 224 CLR 300.
As to the matter of misdirection concerning the elements of the offence, I consider that, while it is not necessarily determinative against the application of the proviso,[105] it will be rare that the proviso will be applied in such circumstances. Thus, Kirby J observed in KBT v The Queen:[106]
… the provisions of statutory powers to excuse demonstrated errors in the conduct of a criminal trial must themselves be applied having regard to the ordinary presumption that an accused person is entitled to have a trial which conforms to the law, to have a jury properly instructed on the elements of the offences charged, to have fair procedures followed and not to suffer the stigma of conviction and the burden of punishment where these basic requirements are unfulfilled. Where error is shown, it is for the Crown to establish that no substantial miscarriage of justice has occurred … This is all the more so where the error in question has involved a failure on the part of the judge to direct the jury, accurately or at all, upon a relevant element of the offence. An accused person is entitled to have all such elements explained, and correctly explained, to the jury. Otherwise there is no means of knowing whether the jury properly understood their task and approached that task with a correct understanding of the applicable law. Because an appellate court (special verdicts apart) has no real means of knowing the reasoning of a jury, it will often be inappropriate, where misdirection is shown, to invoke a provision such as s 668E(1A) of the Code, even in a strong prosecution case.
[105] Darkan v The Queen (2006) 227 CLR 373, 402, 405 [96], [107] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
[106] (1997) 191 CLR 417, 433.
And in Krakouer v The Queen the majority of the High Court stated (in relation to a charge of conspiracy):[107]
[36]… the misdirection was not seen as irrelevant or unimportant by counsel engaged at the trial. Both counsel for the accused and the prosecution took exception to the judge’s direction about this issue. It is clear, therefore, that both counsel at trial saw the misdirection as being significant. That being so, and the misdirection concerning proof of an element of the offence, we do not consider that it can be said that the proviso applies - it cannot now be said that the appellant did not lose a real chance of acquittal. Other considerations may well have arisen if no exception had been taken at trial. Then it might be suggested that the point had been kept back for appeal and we express no view on whether the proviso would have applied in such circumstances.
[37]In the present case there was a clear misdirection of law about proof of one element of each of the offences that were charged. It is regrettable that the error was not corrected at trial. Strong as the case against the appellant may otherwise have been, it cannot be said that conviction was inevitable.
[107] (1998) 194 CLR 202, 216 (Gaudron, Gummow, Kirby and Hayne JJ).
McHugh J went further and stated:[108]
[74]… Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice.
That is not to say that a misdirection as to one of those matters is always a miscarriage of justice. The error may be so trivial that a Court of Criminal Appeal can properly conclude that there has been a trial according to law, notwithstanding the misdirection. But if a direction on the standard or onus of proof or the function of the jury is substantially wrong, I cannot presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred. An accused person is entitled to a trial according to law. Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue. It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming. An accused is entitled to be tried by the jury. That is the tribunal that is given the responsibility for determining the guilt of an accused person.
[108] Krakouer v The Queen (1998) 194 CLR 202, 226.
In Handlen v The Queen[109] the trial was conducted on the mistaken assumption that guilt of drug importation offences could be established by proof that the appellants were parties to a joint criminal enterprise to import the drugs into Australia whereas (at the relevant date) participation in a joint criminal enterprise was not a basis for the attachment of criminal responsibility respecting a substantive offence under the laws of the Commonwealth. The Queensland Court of Appeal found that the jury had been directed “in terms alien to the forms of criminal responsibility then recognised by the Criminal Code” and that the appellants’ liability was accessorial but dismissed the appeal under the proviso on the basis that the case against the appellants was “extremely strong”, that it was satisfied that the appellants’ guilt had been established beyond reasonable doubt, and that the failure to direct the jury correctly as to the basis of the appellants’ liability had not involved a fundamental departure from a trial according to law. On appeal to the High Court, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) allowed the appeal. Their Honours stated:[110]
[47]As this Court explained in Weiss v The Queen, there is no single universally applicable description of what constitutes a “substantial miscarriage of justice”. The appellants were convicted of serious criminal offences following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide. The conduct of the trial on this basis conferred an evidentiary advantage on the prosecution, leading to the admission of evidence to prove the existence and scope of the group exercise. Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed's offences. The verdicts on the importation counts reflect the jury’s satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants’ guilt of the importation offences in the only way for which the law allowed. It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals.
[109] (2011) 86 ALJR 145.
[110] Handlen v The Queen (2011) 86 ALJR 145, 154.
In Cesan v The Queen,[111] the Court was concerned with the problem of a sleeping Judge, a very different case to the present. However, some exposition of general principle in that case is of present assistance. Hayne, Crennan and Kiefel JJ (with whom Gummow and Heydon JJ concurred on this point) stated: [112]
[130]Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty.
[111] (2008) 236 CLR 358.
[112] Cesan v The Queen (2008) 236 CLR 358, 393-395.
In my view, much the same approach is appropriate when it is complained that the jurors were distracted, not by snoring, but by incorrect directions as to important matters, and particularly so in the case of matters relating to the elements of the offence. In the present case, the misdirections as to the element of non-consent and the application of s 7, POA Act certainly fall into this category and I think that the refusal to direct as to s 131(5) does as well. If the failure to direct as to the relevance of the loan agreement is in a slightly different category, it nevertheless was a critical omission leading in a cumulative way to a substantial miscarriage of justice in my view.
I am fortified in the above views by the remarks of French CJ, Gummow, Hayne and Crennan JJ in the recent decision in Baiada Poultry Pty Ltd v The Queen:[113]
[113] (2012) 246 CLR 92, 104-107.
[27]… But two further points must be made about the determination of whether no substantial miscarriage of justice has actually occurred.
[28]First, the significance to be given to the fact that the jury has returned a guilty verdict must be assessed paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a verdict of guilt. In the present case, it is of the first importance to recognise that the jury were not directed to consider whether the prosecution had established beyond reasonable doubt that Baiada’s engagement of DMP and Azzopardi Haulage was not sufficient to discharge Baiada’s obligation so far as was reasonably practicable to provide and maintain a safe working environment at the Houbens’ farm. It follows that the verdict returned by the jury said nothing about that question.
[29]The second point to make about determining the application of the proviso is that the Court held, in Weiss, that the proviso cannot be engaged “unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”. That is a negative proposition. It states a necessary but not sufficient condition for applying the proviso. As this Court’s decision in AK v Western Australia shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred. …
[30]… the point which Baiada made was in substance a denial that a necessary element of the offence had been established. That is, Baiada’s submission was that the prosecution had not established beyond reasonable doubt that it had failed “so far as [was] reasonably practicable” to provide and maintain a safe working environment. And the direction which the Court of Appeal held should have (but had not) been given was that the jury had to be satisfied of that matter beyond reasonable doubt.
[31]It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered. …
…
[35]The Court of Appeal could conclude (as the majority did) that it was proved beyond reasonable doubt that it was reasonably practicable for Baiada to take these steps only if it was not open to a jury to conclude to the contrary. If it was open to a jury to reach a contrary conclusion, the point was not established beyond reasonable doubt. In particular, if it was open to a jury to conclude that it had not been proved beyond reasonable doubt that it was reasonably practicable for Baiada to give its subcontractors instructions about how they were to perform their work and to check that the instructions were observed, it was open to a jury to acquit.
[36]All members of the Court of Appeal agreed that the jury should have been instructed to consider the issue of reasonable practicability. And a direction of that kind was necessary only if the issue was a live issue at the trial – an issue which it was necessary for the jury to consider before returning its verdict. The conclusion reached by the majority in the Court of Appeal – that the evidence established beyond reasonable doubt that Baiada’s effectively exercising its right to control its subcontractors was “reasonably practicable” – was inconsistent with the conclusion that the issue whether the prosecution had established this element beyond reasonable doubt was one which should have been put to the jury for its decision. No doubt the Court of Appeal could decide whether Baiada had the right to give instructions to its subcontractors. It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions of that kind. But the evidence led at trial did not compel that conclusion.
The present was a case in which the appellant gave a long interview to the police and gave lengthy evidence in Court.[114] His case was that at all times he had considered that he had the consent of Ms Fahey, that he had behaved honestly, and that he had gone to great lengths to guard against loss of Ms Fahey’s funds and to recover loss where that had occurred.
[114] Over two full days, T395-551.
There were facts and circumstances militating both for and against the appellant but the question of whether his guilt was proven beyond reasonable doubt could only safely be determined after a fair trial according to law and after the jury had received an adequate summing up. Those conditions were not satisfied here and I can not say that it would not have been open to the jury to acquit. I consider that the proviso cannot be applied.
PART 9: ORDERS
I would propose the making of the following orders:
1Allow the appeal.
2Set aside the convictions on counts 1 and 2.
3Order a retrial on both counts on the information, such counts on retrial not necessarily being in the same form as the amended counts upon which the appellant was convicted.
NICHOLSON J. I agree with the orders proposed by Peek J and with his reasons.