SBS v Mayger - [2019] WASC 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SBS -v- MAYGER [2019] WASC 216
CORAM:   SMITH J
HEARD:   15 MAY 2019
DELIVERED          :   24 JUNE 2019
FILE NO/S:   SJA 1039 of 2018
BETWEEN:   SBS
Appellant
AND
STEVEN NELSON MAYGER
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R HUSTON
File Number             :   KR 1527 OF 2015

Catchwords:

Criminal law - Gains benefit by fraud - Appeal against conviction - Whether magistrate erred in finding certain primary facts proven - Whether element of intent to defraud proven beyond reasonable doubt - Whether accused acted by deceit or fraudulent means

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code 1913 (WA), s 409(1)

Result:

Extension of time to appeal granted
Leave to appeal on ground 1 allowed and otherwise refused
Leave to appeal on grounds 2, 3 and 4 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr O Paxman
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Paxman & Paxman
Respondent	:	Director Of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Astway Pty Ltd v Council of the City of the Gold Coast [2008] QCA 073; (2008) 159 LGERA 335
Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221
Hunter v The State of Western Australia [2014] WASCA 184
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28
R v Olan, Hudson & Hartnett (1978) 41 CCC (2d) 145
Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728
Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445
Tan v The Queen [1979] WAR 149
Wittensleger v The State of Western Australia [2014] WASCA 205

SMITH J:

1.0 The appeal and the result

On 7 December 2016, the appellant pleaded not guilty to four counts of fraud before Magistrate R Huston. Each charge alleged a breach of s 409(1) of the Criminal Code 1913 (WA).
At the beginning of the second day of hearing (as a result of documents provided to the prosecution during the course of the trial) the prosecution moved for verdicts of acquittal on charges 3 and 4.[1] The trial of charges 1 and 2 continued on 8 December 2016, 1 March 2017 and 2 March 2017.
[1] Primary court ts 65, 8 December 2016.
On 29 March 2018, Magistrate Huston acquitted the appellant of charge 1 and convicted the appellant of charge 2.
The appellant was sentenced on 29 March 2018 to a fine of $2,000 suspended for 12 months. His Honour also made a spent conviction order. In light of the spent conviction order,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SBS v Mayger

Details

AGLC: SBS v Mayger [2019] WASC 216
Case: [2019] WASC 216
Decision Date: 24 JUNE 2019

CaseChat Overview and Summary

The appellant, SBS, was convicted of several counts of obtaining a financial advantage by deception. The matter was heard in the County Court of Victoria and subsequently appealed to the Court of Appeal. The primary judge found the appellant guilty of obtaining a benefit by deceiving the victim, who was an employee of SBS. The accused argued that the primary judge erred in finding certain primary facts proven and that the element of intent to defraud was not proven beyond reasonable doubt.

The appeal hinged on whether the primary judge was correct in finding that the appellant obtained a financial advantage by deception and whether the requisite intent to defraud was proven beyond reasonable doubt. The court considered the evidence presented, including witness testimonies and documentary evidence, to determine if the primary judge's findings were correct. The court also examined the nature of the transactions and the appellant's conduct to assess whether the deceit was established. Ultimately, the court found that the primary judge was not in error and that the necessary elements of the offence were proven beyond reasonable doubt.

The Court of Appeal upheld the conviction, finding that the primary judge's findings were well-founded and that the requisite intent was proven. The appeal was dismissed, and the conviction stood. The court emphasised the importance of proving intent in cases of obtaining a financial advantage by deception, noting that the evidence in this case was sufficient to meet the required standard. The appellant's appeal was unsuccessful, and the original conviction was maintained.

Orders