R v McFarlane

[2024] NSWDC 193

District Court

New South Wales

Medium Neutral Citation:

R v McFarlane [2024] NSWDC 193

Hearing dates:

11, 12 and 13 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Verdict: Not guilty of Count 1 — Guilty of Count 2

Catchwords:

CRIME — Fraud — Dishonestly cause financial advantage by deception

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation

CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

EVIDENCE — Discretions ­ — Judicial Notice ­ — Assessment of evidence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

AK v Western Australia [2008] HCA 8; 232 CLR 438

Coombes v Rodes and Traffic Authority & Ors [2006] NSWCA 229

Fleming v The Queen (1998) 197 CLR 250

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

R v Baden-Clay [2016] HCA 35; 258 CLR 308

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Category:

Principal judgment

Parties:

Micheal McFarlane (the accused)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
P Williams (for the accused)
C Todd (for the Crown)

Solicitors:
Dillon-Smith Lawyers (for the accused)
Public Prosecutions (NSW) (Crown)

File Number(s):

2022/343336

JUDGMENT – EX TEMORE REVISED

1. On 11 March 2024, Michael McFarlane, who prefers to be known as Michael Potts, said he was not guilty of two serious offences. They are:

1. Count 1 – Between 17 October 2022 and 19 October 2022 at Moruya, he did Dishonestly Obtain a Financial Advantage, namely, transferring monies from Enrique Carriage’s Commonwealth Bank account into his own account and/or withdrawing funds from the said Commonwealth Bank account: Crimes Act 1900 (NSW), s 192E(1)(b); and

2. Count 2 – That he, on 21 October 2022 at Moruya, did enter a Dwelling House situated at Moruya with Intent to Commit a Serious Indictable Offence, therein namely Intimidation, in Circumstances of Aggravation, namely, he knew persons were present, and in circumstances of Special Aggravation, namely, that he did intentionally wound Enrique Carriage: Crimes Act 1900, s 111(3).

A judge alone trial

2. Potts, for proper reasons, waived his right to trial by jury and elected for trial by judge alone: Criminal Procedure Act 1986 (NSW), s 133. The trial proceeded before me at Bega District Court. The evidence was presented on 11, 12 and 13 March 2024. This morning I heard submissions from the Crown Prosecutor and Mr Williams, of counsel, instructed by Mr Sumbak, solicitor, on behalf of the accused.

3. I am obliged not just to return verdicts but also include in my judgment the principles of law applied and the findings of fact upon which I rely. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve any issues of law and fact that need to be determined: AK v Western Australia [2008] HCA 8; 232 CLR 438 at [85]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [259].

4. As a judge sitting alone, I can make any findings that could have been made by a jury on the question of guilt of an accused. If any warnings are required, I am obliged to take those warnings into account. I must properly formulate those warnings and principles and expose my reasoning process, linking the relevant principles with findings of facts so as to justify those findings and the ultimate verdicts reached: Criminal Procedure Act, ss 132, 132A, 133; Fleming v The Queen (1998) 197 CLR 250.

Key directions

5. The most important direction in any criminal trial is this:

• The prosecution bring the charge, they must prove each critical element of a charge beyond reasonable doubt.    The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only reach a guilty verdict if I have no reasonable doubt the Crown has proved its case. If the Crown failed to meet that high onus, or if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty.

6. The defence tendered one exhibit. The accused did not give evidence. It is important to note at the outset that, consistent with the principle I have just enunciated, his presumption of innocence continues. As a matter of law his election not to give evidence can never be used against him. It constitutes no admission by him, and no negative inference can be drawn from the fact he exercised a right every citizen has. His silence in Court can never be used to fill gaps in the evidence. It may not be used in assessing whether the prosecution has proved its case beyond reasonable doubt in any way. I do not speculate about what he might have said had he given evidence.

7. I have to determine what facts are proved, and what opinions, if any, I accept. Lay opinions were properly admitted, and I made rulings about them during the course of the trial. I have also indicated during the course of the trial that certain aspects of the evidence which were either inadmissible or went to matters of prejudice not relevant to the issues would not form part of my deliberations. I sought to do so as that evidence was given, because we do not have the benefit of the transcript. I do not have the advantage being able to go through the transcript and nominate each particular matter. I gave myself important directions at the time certain evidence was led or where I indicated my opinion as to that evidence.

8. In reaching my judgment I can draw inferences. I cannot use my personal experience to make findings of fact, but I can draw inferences if that personal experience satisfies the test relating to ‘common knowledge’ set out in s 144 Evidence Act 1995 (NSW). And, by raising the matter at the time have sought to ensure that a party is not prejudiced by my doing so: Coombes v Rodes and Traffic Authority & Ors [2006] NSWCA 229 [68]-[69].

9. In this case I made it clear that I am fairly familiar with the town of Moruya where these incidents occurred. Nothing much turns on that, but it does enable me to understand the size of the town and the population of the town. Because I often sit in Bega, from where Moruya matters come in the course of these sittings, two of the witnesses in this trial were before me for other proceedings unrelated to the trial. Those matters were drawn to the attention of counsel.

10. In one of them, I sentenced Enrique Carriage. I was made aware that he had cooperated with authorities and made a statement in relation to this matter, as an alleged “victim”, and that he was giving evidence in a trial in these sittings, hence I gave him the benefit of a finding pursuant to s 23 Crimes (Sentencing Procedure) Act 1999 (NSW). I am aware of that benefit and cautioned myself that where someone does receive a benefit on sentence, it is a matter that may go to their credit and credibility and must be assessed along with all the other evidence.

11. I note that for most people giving evidence in a trial is not common and may be stressful, and this even applies to police officers. I note that where people have suffered trauma it may affect people differently as to whether and how they show emotion or distress. I am must be particularly careful in a matter such as this not to draw conclusions based solely on how witnesses give their evidence. I am aware that people react and appear differently. It was obvious that the witnesses who gave evidence here come from different backgrounds and have different abilities, values, and life experiences to my own. Some used vernacular English that would not commonly be used by someone of my age and vintage, education, and background.

12. There are many variables. Some witness showed some signs of stress. One witness showed signs of what to a lay observer, might be taken to be signs of a mental illness. The manner in which a witness gives evidence is not always the most important factor. What I have to do is assess the evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

13. Where witnesses show a negative attitude to NSW Police and direct hostility to them, where they have limited education, possible mental illness, possible drug use, have suffered apparent disadvantage, I have to be particularly careful to not stereotype or not draw negative inferences solely because of their personal background. It does not mean I cannot take their attitudes and behaviour into account. But I have to be aware of the fact that people are brought to Court from their other lives and that while courts treat matters with as much formality as possible, people who are not familiar with the legal system (except when they are brought before it as an accused) do not always behave in, or have values that might be common to, those of a middle class judge, no matter what their background.

Circumstantial evidence

14. I cannot convict unless the elements of the offence are proved. For Count 1, the prosecution rely upon, both direct and circumstantial evidence. There are well settled principles relating to proof of a circumstantial case. They were set out in R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [47]-[50]. Omitting citations, they are:

1. When a case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused;

2. To engage the trier of fact to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference, but it should be the only rational inference that the circumstances would enable them to draw;

3. For an inference to be reasonable it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a trier of fact from finding the accused guilty if the inference of guilt is the only inference open to reasonable people upon consideration of the facts in the evidence;

4. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence;

5. The evidence at trial is not to be looked at in piecemeal fashion.

Elements

15. Turning now to the elements of the offences.

16. I remind myself again the burden of proof of an element of an offence remains with the prosecution and that burden never shifts. It is not for the accused to prove his innocence.

17. So far as Count 1, obviously the prosecution must prove beyond reasonable doubt that Michael Potts was responsible for the crime. They must prove that there was a deception. They must prove that by deception he accessed the bank account of Enrique Carriage and dishonestly obtained an advantage for himself or caused a financial disadvantage to a person.

18. So far as Count 2 is concerned, the prosecution must prove that the accused entered the dwelling house with intent to commit a serious indictable offence of intimidation. When he entered the house, he knew someone was inside. And that he intentionally wounded Enrique Carriage.

Key terms

19. Deception is defined in s 192B Crimes Act:

“(1)  In this Part, deception means any deception, by words or other conduct, as to fact or as to law, including—

(a)  a deception as to the intentions of the person using the deception or any other person, or

(b)  conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2)  A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.” (emphasis in original)

20. What I have to focus on is the act, whether it was deceptive. The standard I apply is that of ordinary decent people. Deception can be achieved in many ways and here it involved the use of the bank account and electronic devices.

21. Dishonesty is defined in s 4B Crimes Act.

“(1) In this Act—

dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.”

22. When determining whether an act is or is not dishonest. The standard I apply is that of ordinary decent people.

23. The term ‘Advantage’ is set out in 192D Crimes Act:

“(1) In this Part, obtain a financial advantage includes—

(a) obtain a financial advantage for oneself or for another person, and

(b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and

(c) keep a financial advantage that one has,

whether the financial advantage is permanent or temporary.

(2) In this Part, cause a financial disadvantage means—

(a) cause a financial disadvantage to another person, or

(b) induce a third person to do something that results in another person suffering a financial disadvantage,

whether the financial disadvantage is permanent or temporary.”

24. Mr Crown carefully took me through those provisions.

25. As to Count 2 – It is not in dispute that if the prosecution case put through Mr Carriage is accepted beyond reasonable doubt I could convict. The person identified was the accused. It is said he did enter the premises. Those premises were a dwelling. It would have been obvious to anyone entering the premises that other people were there. If what was done was done within the premises the alleged actions would have constituted intimidation.

26. As a matter of law Intimidation is a serious indictable offence.

27. ‘Intimidation’ – is defined as something which would involve the harassment or molestation of the complainant or have caused the complainant to have a reasonable apprehension of injury been caused to himself or to fear for their safety.

28. ‘Wound’ – means an injury breaking or cutting the anterior layer of the skin.

29. ‘Intent’ and ‘intention’ – are very familiar words. Here, if I accept the prosecution case, it is not seriously suggested that I would not draw the obvious and inevitable consequence from a person’s act and conclude that he deliberately carried out those acts.

Consideration – Count 1

30. Returning to Count 1. The accused is charged that, by deception, he dishonestly obtained a financial advantage, and caused a financial disadvantage, by accessing the bank account of Enrique Carriage.

31. The prosecution contends the financial advantage was his use of that bank account to deposit and withdraw money from it, and the disadvantage was that some of the money withdrawn was in fact Enrique Carriage’s Centrelink payment; some $700.

32. The deception was his use of the mobile phone belonging to Carriage and his accessing that account by electronic means in order to obtain both the advantage and cause the disadvantage. It is the prosecution’s case that the financial benefit, financial advantage, obtained as a result of that deception, and it was intentional that he either did so deliberately or used others to obtain the advantage to himself and bring about the disadvantage to Mr Carriage.

33. The uncontradicted evidence before me, is that Mr Carriage lost, or had taken, his mobile phone. Someone, other than himself, accessed his accounts and utilised his accounts during the period 17 October 2022 to 19 October 2022.

34. His account records were tendered as Exhibit A.

35. When Mr Carriage gave evidence, he was taken to a transaction on 18 October 2022 direct credit number, Centrelink Youth Allowance, and then another number. He said he knew nothing about that payment, that direct credit.

36. I note that the numbers associated with the direct credit also appear on Exhibit A on 9 October and 21 October. He gave evidence that they related to his fortnightly Youth Allowance. I note that the numbers on 18 October are identical.

37. In evidence, he said he had no knowledge of that payment. Senior Constable Buchanan said that that when the initial complaint was made, he was shown Exhibit A, or produced Exhibit A, and told by Mr Carriage that the 18 October direct credit related to his Youth Allowance.

38. It is important to note that there is no evidence before me from either Centrelink or from Commonwealth Bank of Australia (‘CBA’) other than Exhibit A .

39. When I assess the evidence, I have regard to exhibited CCTV video which shows individuals accessing a bank, where the evidence before me is the CBA, indicated that the CCTV corresponded with the transactions on 17 October and 18 October. Certain people can be seen accessing the ATM at that time. One of them was identified by a police officer. She said she knew her well. She also knew she had a direct association of a personal nature with the accused. That woman she said also has connections with other parts of the evidence. I will not name her at this stage, simply because she has further related proceedings before the Court. Someone else will have to make factual findings in relation to her actions.

40. Mr Carriage says he did not authorise anyone to access his account. Having reviewed the evidence about his losing his phone and then having it returned to him, I am satisfied beyond reasonable doubt that a person by deception accessed his bank account. They dishonestly obtained an advantage for themselves and caused him a financial disadvantage.

41. The critical question I have to determine is whether that person was the accused. There is a plausible scenario that it was the accused, but ‘plausible scenario’ is not the test.

42. The accused was present when Mr Carriage says the phone went missing. According to a witness who recovered it from him, the accused was in possession of the phone in October or November 2022. That witness did have some animosity towards the accused; a matter I take into account.

43. There is a transaction recorded in Exhibit A to an account carrying a name the same as the accused, but there is no material before me as to who authorised that transaction.

44. The evidence before me is he did have an association with the woman, identified by Detective Senior Constable Buchanan, who made a withdrawal.

45. It is quite possible that the accused did commit the offence but that is not the test. It is equally possible that the woman described as “his partner” committed the offence.

46. There was evidence from Mr Carriage that when the phone was received by him, he saw the bank and Centrelink details of the accused, well, the person with the name of the accused, but no download of information from his phone or screenshots were taken. In their absence the accuracy of what was seen by Mr Carriage cannot be objectively verified.

47. It is possible that Mr Carriage had access to the phone after the transactions were made. It is possible that female was the person who committed the offence. It is possible that the accused and the female committed the offence as part of a joint criminal enterprise. They are all possibilities, but proof beyond reasonable doubt requires more than that.

Verdict – Count 1

50. If I go back to the directions, I have to give myself; for an inference to be reasonable it must rest upon something more than mere conjecture. It must be the only inference open after a consideration of all the facts in the evidence. Where there remains the possibility of inferences falling short of proof of guilt, the accused must have the benefit of the doubt. Here he must have the benefit of the doubt in relation to that matter. I record a not guilty verdict in relation to Count 1.

Count 2 – Submissions

51. In submissions, Mr Crown said that when I consider what Mr Carriage said in context, I would and should, convict.

51. Mr Williams’ submission in response stressed the “problems” with Carriage’s account, not the least being there is what he described as a “fundamentally different version” given by an eyewitness, Mr McCarron.

52. He noted that Mr Carriage had told police, who were at the scene within minutes or seconds of the event, that nothing had happened. He submitted that, given the onus of proof is on the Crown, have significant regard to missing evidence. That is; how is it that the accused in fact knew Carriage was at the premises? He noted that here are witnesses who could have been called but have not given evidence. He said there are witnesses who were called but they were in effect “missing in action”, in that they did not see what happened or, in one case, seem to have slept through the events, or conveniently not been there at the time events are said to have occurred. He noted that there was no direct forensic evidence apart from the wound itself.

Consideration – Count 2

54. Mr Carriage was a quiet but well-spoken man. He was obviously nervous about giving evidence but there was nothing in his demeanour or presentation that caused me any particular concerns.

55. He said that he was at a home in Moruya enjoying a smoke of what he called “yarndi” what I know is a common local term for marijuana. He said that he knew Michael Potts and knew him well. Although they were not friends and they had had negative interactions in the past. He said that he was first aware of Potts arriving at the premises when he heard him call out, “Snitch”.

56. There is evidence before me that when he went to the police station with his mother to report the interference with his bank account the woman, referred to in Count 1 as the accused’s partner, saw him go to the police station and video recorded on her phone that he was doing so.

57. Mr Carriage said, Potts entered the home. He said he pulled a knife from his pants and rushed at him. Mr Carriage said that he ran from the lounge room of the house. It is depicted in the photographs before me as an Exhibit C.

58. He said he got caught in a “dead end” in the laundry of the premises. There he had a scuffle with Potts. At one stage, he said, Potts was on top of him, and trying to get him with the knife. He said that Potts’ uncle was present. The uncle, he says, had arrived together with Potts. Soon after both men left. At that point he checked himself for injuries. He then noticed a cut to his hand. It was a deep incision, which he described as “too deep to feel”.

59. If I accept that version of events beyond reasonable doubt, it would prove each element of Count 1. There was an entry to a dwelling house in which he was. He also said there were words exchanged in the lounge room. The production of a knife in the lounge room indicated, in no uncertain terms, that there was an intent to at the very least, commit the serious indictable offence of intimidation. It is obvious from the description of the house that the person who entered was aware someone was inside. The scuffle with a knife in the laundry, after having been chased and cornered there, could lead to only one conclusion, that the wound was intentionally inflicted.

60. The real question in this case is: Can I accept beyond reasonable doubt what was said by Mr Carriage?

61. Mr McCarron who was present at the home gave evidence from custody via video-link from the South Coast Correctional Facility late in the afternoon. He had, as parties are well aware, been on a truck to Batemans Bay on his way to Bega but was then turned round. He was, from a lay observer’s point of view, florid, hyperactive in his speech, very speedy and difficult to follow. He had his head down for some of his evidence and he mumbled or spoke so quickly it was hard for everyone to follow exactly what he said. His evidence focused on his personal memories and his narrative put himself at the centre of events. He focused most of his evidence on his interaction with the person that he described as an uncle of the accused. He said the uncle had who entered the premises at about the same time as the accused. He did say that his recollection was that the accused had chased Mr Carriage to the laundry. His evidence was that he saw the uncle with the knife and the uncle was attempting to use the knife on Mr Carriage. He said he blocked the uncle and at one stage he said the uncle stabbed Mr Carriage. Later, he resiled from that assertion, saying he “thought” the uncle struck Mr Carriage. But he clearly put the uncle with a knife in the laundry.

62. Mr Carriage, although he mentioned the uncle being present, did not in any way implicate the uncle in any direct assault on him. Mr Carriage’s evidence was clear – the stabbing occurred during the struggle in the laundry while the accused was on top of him.

63. Mr Carriage did not make any complaint about the accused when he was spoken to by police about his injury shortly after the events. McCarron mentioned a fall to the police as being the cause of the injury. It would appear that at that stage Carriage did not contradict what he said and may have affirmed it. A COPS entry from the event recorded at the time noted that, when Carriage was asked what happened, he abused police, telling them to “fuck off” and all he needed was “an ambulance”. The note says:

“At this stage it is unclear what has happened. The vic and witnesses are refusing to tell police what happened, abusing police to leave. Police will allege the cut to the victim’s hand was from an edged weapon but cannot confirm this as the victim was attempting to hide it from police. I have photographed the wound taken shortly afterwards.”

64. The Agreed Facts state that, following the admissions to Moruya and Canberra hospitals, the injury was recorded as a deep laceration which cut the extensor tendon and required surgery to repair. If the wound was a result of the fall, it was a fall onto something sharp or edged; applying my own limited experience of such injuries and the nature of the injury and the medical consequences.

65. It is not for a judge to make excuses for witnesses, but a judge can recognise problems that witnesses face. It is not unusual for people who have ingrained suspicion of police to not cooperate with them. One of the people that was at the scene was arrested for breach of bail.

66. The police were met with a hostile situation, but they had responded quickly to a call from a neighbour, who clearly heard a disturbance and called triple-0. The triple-0 notes state that that disturbance was still being heard by the triple-0 operator.

67. Mr McCarron was giving evidence 2 years after the events, and I am sure many other things had happened in his life. The fact that he told a different version does not, in my view, undermine the clear, precise, and exact evidence of Mr Carriage; whose evidence I accepted.

68. I am conscious that Mr McCarron’s version differs, but it does not directly contradict the evidence of Mr Carriage. It is quite possible, from his perspective, that he focused on whatever the uncle was doing, not what was done by the accused. But this is not a joint criminal enterprise, and Mr McCarrion was not there during the whole of the incident in the laundry.

69. There was a motivation. That motivation is reflected in the cry of the word “snitch” at the outset.

70. Carriage made an immediate complaint to his mother, who picked him up and took him to the hospital. He has kept to that consistent version since that time.

Verdict – Count 2

71. Having reviewed all of the evidence and giving myself the directions noted, I am satisfied beyond reasonable doubt that each of the elements of Count 2 has been proved beyond reasonable doubt. I find the accused guilty of that charge.

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Decision last updated: 30 May 2024