R v Kerin

Case [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…

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R v Kerin [2013] SASCFC 56
Case
[2013] SASCFC 56
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned convictions for theft. The appellant, Peter David Kerin, a barrister and solicitor, was charged with three counts of theft under section 134 of the Criminal Law Consolidation Act 1935. Counts 1 and 2 related to property of the late Ms Mary Fahey, for whom the appellant held an enduring power of attorney. Count 3 concerned property of the estate of the late Ms Jean Batten, for whom the appellant acted as solicitor. The jury acquitted the appellant on count 3 following a direction from the judge, but convicted him on counts 1 and 2.

The legal issues before the Full Court included whether the appellant had dishonestly dealt with property belonging to Ms Fahey, specifically a chose in action in the amount of $100,000 from a Commonwealth Bank account and a chose in action in the amount of $200,000 from an AXA investment portfolio. The court was required to consider the elements of theft as defined by the Act, including the dishonest intent to permanently deprive the owner of the property or to make a serious encroachment on their proprietary rights. The appeal also implicitly raised questions regarding the sufficiency of the evidence presented to the jury to establish these elements beyond a reasonable doubt.

The court applied the proviso to section 22(1) of the Criminal Appeals Act 1928 (SA), which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, even if an error by the trial judge is established. In this instance, the court found that even if any error had been made by the trial judge, it did not result in a substantial miscarriage of justice. The reasoning for this conclusion, though not fully detailed in the provided text, suggests that the evidence, when considered in its entirety, was sufficient to support the jury's verdict of guilt on the two counts of theft.

Consequently, the Full Court dismissed the appeal. The appellant's convictions for theft in relation to the property of Ms Mary Fahey were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 CountStatement of OffenceTheft. (Section 134 of the Criminal Law Consolidation Act, 1935).Particulars of OffencePeter 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 CountStatement of OffenceTheft. (Ibid).Particulars of OffencePeter 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.

Decision

Reasons for decision

GRAY J NICHOLSON J
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. 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 CountStatement of OffenceTheft. (Section 134 of the Criminal Law Consolidation Act, 1935).Particulars of OffencePeter 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 CountStatement of OffenceTheft. (Ibid).Particulars of OffencePeter 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, NICHOLSON J

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