SBS v Mayger
[2019] WASC 216
•24 JUNE 2019
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, the appellant's name has been anonymised in these reasons.
Charge 2 alleged that between 19 and 22 December 2014, the appellant, 'with intent to defraud, by improper use of company corporate card, gained a benefit, namely use of a hired car trailer to the value of $616'.[2]
[2] Prosecution notice, charge No KR 1527/2015.
The appellant applies for leave to appeal against the conviction on charge 2. The question of whether the appellant should be granted leave to appeal on each of his proposed grounds of appeal was deferred to the hearing of the appeal.
The appellant also seeks an extension of time in which to file the appeal.
The appellant's proposed amended grounds of appeal are as follows:[3]
1.The learned Magistrate made a wrong decision on one or more questions of law in finding certain primary facts proven, in circumstances where there was no, or no sufficient evidence, on which to do so, and compounded that error by relying on those facts for the purpose of inferring guilt.
2.The learned Magistrate erred in finding the element of an intent to defraud proven beyond reasonable doubt when the evidence was insufficient to prove that the appellant had a subjective intention to use the card improperly at the time the benefit (the use of the trailer) was gained or obtained.
3.The learned Magistrate erred in finding the element of deceit or fraudulent means, as particularised in the prosecution notice, proven beyond reasonable doubt when the evidence was insufficient to prove an improper purpose in using the credit card.
4.In the alternative to ground 2 above, the learned Magistrate erred in finding that the deceit or fraudulent means as particularised in the prosecution notice resulted in the accused gaining the benefit as particularised in the prosecution notice.
[3] Amended appeal notice, filed 26 April 2019.
I have found that, other than part of proposed ground 1, proposed grounds 2 to 4 of the appeal have no reasonable prospect of success.
In respect of proposed ground 1, I have found that leave to appeal on proposed ground 1 should be allowed. I have found that the magistrate erred in finding that the car trailer, hired from CAPS Hire in Kununurra on 19 December 2014, was immediately returned by the appellant on returning to Kununurra, Western Australia from Katherine in the Northern Territory on the weekend of 20 and 21 December 2014. To this extent, leave to appeal on proposed ground 1, insofar as ground 1 alleges that the magistrate made a wrong decision in finding one primary fact proven in circumstances where there was no evidence on which to do so, is allowed.
However, for the reasons that follow, I am:
(a)not satisfied that proposed ground 1 is made out, as I am not satisfied that in the absence of the error in respect of the primary fact guilt could not be inferred; and
(b)no substantial miscarriage of justice arises.
2.0 The witnesses
Three witnesses gave evidence on behalf of the prosecution relevant to charge 2. They were:
(a)Mr Thomas William Pearce. At the time of giving evidence in December 2016, Mr Pearce was employed as the operations manager of the Water Corporation in the East Kimberley District, based at the Water Corporation's depot in Kununurra. At the time of the alleged offence, Mr Pearce was employed by the Water Corporation at the depot as a trades team leader responsible for mechanical and electrical tradespeople, fleet vehicles and machinery;[4]
(b)Mr Lee Jeffre Trimbell, the branch manager of CAPS Hire in Kununurra;[5] and
(c)Mr Rino Trolio, the North‑West regional manager of the Water Corporation.[6]
[4] Primary court ts 68, 8 December 2016.
[5] Primary court ts 3 ‑ 4, 1 March 2017.
[6] Primary court ts 14, 1 March 2017.
The appellant elected to give evidence in his defence.
3.0 Summary of background facts
At the time of the offence for which the appellant was convicted, the appellant was employed by the Water Corporation as the operations manager, East Kimberley. The conviction arose out of the hire of a car trailer (paid for by the Water Corporation) that was used by the appellant for a personal purpose.
The appellant was issued with a corporate credit card by the Water Corporation. The appellant's use of the corporate credit card was subject to certain conditions and policies. The corporate credit card was to be used by the appellant to make purchases for, and on behalf of, the Water Corporation. Purchases for purely personal use or benefit were expressly prohibited.
On 19 December 2014 at around 9.00 am, the appellant attended CAPS Hire in Kununurra, spoke to Mr Trimbell and specifically requested to hire a car trailer. The appellant hired a car trailer in the name of the Water Corporation at 9.10 am on that day to be returned on Monday 22 December 2014 at 10.30 am.
The appellant used the car trailer for his own private use between Saturday, 20 December and Sunday, 21 December 2014 when he drove to Katherine in the Northern Territory, collected a personal unlicensed vehicle and transported the vehicle back to Kununurra on the trailer hired from CAPS Hire.
The Water Corporation had an unwritten policy relating to personal use of Water Corporation assets by staff. Whilst there was a dispute about whether the appellant had to obtain approval from a supervisor before assets could be used for his personal use, the practice of use of Water Corporation assets for personal use by employees was not uncommon.[7]
[7] Primary court ts 100, 104 ‑ 105, 107, 8 December 2016.
The hire of the trailer in the amount of $616 was paid for by the appellant using his Water Corporation corporate credit card on 23 December 2014 at 10.53 am.[8]
[8] Exhibit 6.
When corporate credit cards are used by employees purchasing card statements, known as 'P' cards are required to be completed. P cards are an internal Water Corporation document used for reconciling purchases made using Water Corporation corporate credit cards and ensuring that purchases are for a legitimate purpose.[9]
[9] Primary court ts 43, 7 December 2016 and ts 76, 8 December 2016.
The P card statement for the CAPS Hire transaction on 23 December 2014 records in typed print the date, or dates, of a number of transactions; the supplier name; the 'settlement amount' (being the amount charged in respect of each transaction to the particular credit card allocated to the appellant); and the reason for purchase.[10]
[10] Exhibit 5.
On 20 February 2015, the appellant handwrote an entry on the P card and signed the document as true and correct for a transaction recorded on 23 December 2014 for the payment made to CAPS Hire for the amount of $616 as 'plant trailer for mini excavator while other trailer was been repaired'. The appellant also wrote a note on the CAPS Hire invoice to the same effect.[11]
[11] Exhibit 6.
4.0 Prosecution and defence cases at trial
The prosecutor's opening can be summarised as follows:[12]
(a)during the course of his employment, the appellant utilised the corporate credit card issued to him to pay for the hiring of a trailer under the guise of a work‑related expense and he utilised the trailer for his own personal use to tow a vehicle through quarantine posts in Western Australia on 21 December 2014;
(b)the appellant made a dishonest statement on the P card statement in an attempt to reconcile his personal use of the Water Corporation corporate credit card against a legitimate business use, thereby concealing his improper use of the Water Corporation corporate credit card; and
(c)the dishonest entries made by the appellant on the P card statement amounts to the fraudulent aspect of the usage of the card.
[12] Primary court ts 41 ‑ 43, 7 December 2016.
During the course of the prosecution opening, the appellant's counsel informed the magistrate that it was conceded that the trailer was in fact hired by the appellant and he had used the trailer to drive from Kununurra to Katherine and return with his personal vehicle.[13] Counsel for the appellant also informed the magistrate that whilst the fact of the hire of the trailer was not in issue, the transaction itself was in issue in that it was to be contended by the appellant that the car trailer was hired in the course of the appellant's employment with the Water Corporation for use by the Water Corporation.[14]
[13] Primary court ts 43, 7 December 2016.
[14] Primary court ts 45, 7 December 2016.
The defence case at trial was that:[15]
[15] Appellant's outline of submissions, filed 26 April 2019, 5 ‑ 7.
(a)the appellant attended CAPS Hire on the morning of 19 December 2014 for the purpose of hiring a replacement trailer whilst the Water Corporation's mini excavator trailer was out of service;[16]
[16] Primary court ts 130, 2 March 2017.
(b)the appellant hired a car trailer on the Friday morning, 19 December 2014, because he had made a decision to do so earlier that morning (following a staff meeting, at which a safety issue with the mini excavator trailer had been raised). The problem with the mini excavator trailer was that the jockey wheel on the trailer was too low for the towbar height of the Water Corporation vehicles. This made it difficult to load and unload the mini excavator. There had been attempts to fix the issue over several months in 2014. The problem was ultimately resolved by fixing drop down hitches on the vehicles but no alteration was made to the mini excavator trailer;[17]
[17] Primary court ts 130 ‑ 131, 2 March 2017.
(c)on the morning in question, not all vehicles had drop down hitches attached to them and the appellant put the mini excavator out of service because the vehicles in the depot at that time did not have drop down hitches attached to them;[18]
[18] Primary court ts 131, 2 March 2017.
(d)the appellant hired a car trailer (and not a mini excavator trailer) because the Water Corporation's mini excavator weighs 1.9 tonne which was more than the weight of mini excavators hired by CAPS Hire;[19]
[19] Primary court ts 132, 2 March 2017.
(e)shortly after 9.10 am on 19 December 2014, the appellant towed the hire car trailer to the Water Corporation's Kununurra depot which is located a short distance away;
(f)upon arrival at the Kununurra depot, the hire trailer became available to transport the Water Corporation's mini excavator, if required;
(g)at 1.53 pm on 19 December 2014, the appellant received a text message advising him that a vehicle which had been purchased by him from Brisbane was in transit to Katherine in the Northern Territory;[20]
(h)on Monday, 15 December 2014, the appellant had received an email from VIP Automotive Solutions advising him that his vehicle was estimated to arrive in Katherine on Tuesday, 23 December 2014;[21]
(i)at 8.55 am on Saturday, 20 December 2014, the appellant was informed that his vehicle was available for collection in Katherine;[22]
(j)some time after 8.55 am on Saturday, 20 December 2014, the appellant collected the hired car trailer from the Kununurra depot and drove to Katherine in the Northern Territory;
(k)at the time the appellant hired the car trailer from CAPS Hire, he was not aware that his personal vehicle would be available for collection the following day, on Saturday, 20 December 2014;[23]
(l)the appellant transported his personal vehicle using the hired car trailer and returned to Kununurra on Sunday, 21 December 2014;[24]
(m)upon returning to Kununurra, the appellant returned the hired car trailer to the Water Corporation's Kununurra depot. The hired car trailer was available for use by the Water Corporation until it was returned to CAPS Hire on Tuesday, 23 December 2014;[25]
(n)at the time the appellant hired the trailer, he was not aware of the impending arrival of his private vehicle in Katherine. As such, the appellant had not yet formed an intention to borrow the trailer and therefore did not have an intention to defraud;
(o)the appellant believed that the use of the hired trailer on 20 and 21 December 2014 to collect his personal vehicle from Katherine was consistent with the unwritten policy whereby staff were permitted to borrow or use Water Corporation assets and facilities for their own personal use. As such, the appellant did not intend to defraud the Water Corporation as he did not regard his use of his corporate credit card or his borrowing of the trailer as being improper or dishonest; and
(p)the appellant did not obtain a benefit of using the trailer as a consequence of his use of his corporate credit card as pleaded in the prosecution notice.
[20] Exhibit 31: text messages, dated 19 December 2014; primary court ts 139 ‑ 140, 2 March 2017.
[21] Primary court ts 134, 2 March 2017.
[22] Primary court ts 136, 2 March 2017.
[23] Primary court ts 138, 2 March 2017.
[24] Primary court ts 131, 133, 2 March 2017.
[25] Primary court ts 141, 2 March 2017.
5.0 Relevant findings made by the magistrate
His Honour made the following observations relevant to charge 2:[26]
(a)the issue for him to decide on the evidence was what were the appellant's intentions, if any, at the relevant times, and, in particular, did the appellant intend to defraud the Water Corporation by deceit, or by any other fraudulent means, and thereby did the appellant gain a benefit; and
(b)there was no issue that to gain a benefit might be being relieved of the requirement to pay (for the trailer hire).
[26] Primary court ts 15, 29 March 2018.
His Honour then made the following relevant findings of fact:[27]
[27] Primary court ts 20 ‑ 23, 29 March 2018.
(a)Mr Pearce, Mr Trulio, and the appellant's evidence was that there was an accepted practice within the East Kimberley District at Kununurra that Water Corporation employees were allowed the use of Water Corporation assets, such as trailers, tools, generators, pumps, and the workshop assets for their own personal use, provided the approval of the relevant operations manager had been obtained (previously) in each instance;
(b)the appellant's testimony was that:
(i)he hired the car trailer and paid for the car trailer with the Water Corporation's corporate credit card in case the Water Corporation needed to use a trailer that weekend for transporting a Water Corporation excavator;[28]
[28] Although no issue was raised in respect of this finding in the proposed grounds of appeal, the appellant's evidence was that he hired the car trailer for the Friday, until the mini excavator trailer could be looked at again (for repairs) and he hired the car trailer for as long as they needed it. He denied it was hired for the weekend and then went onto say that 'you always get the Saturday and Sunday with that process (of hire)': primary court ts 145, 2 March 2017.
(ii)because of his seniority and widespread practice of using Water Corporation assets for personal projects, he had an honest claim of right to use the car trailer;
(iii)he had no intention to defraud his employer; and
(iv)the appellant hired a specific item (the car trailer) for a specific purpose (to transport the Water Corporation mini-excavator); his use of the car trailer on the same weekend was a coincidence of personal circumstances;
(c)Mr Trimbell's evidence was very clear and unshaken that the appellant only wanted to hire a car trailer, that the car trailer was unsuitable for the Water Corporation's mini excavators and there were seven other excavator trailers (available for hire at CAPS Hire) which the appellant chose to overlook;
(d)at the time the Water Corporation had excavator trailers that were available for use;
(e)the appellant's assertion that the Water Corporation's trailer was having problems with the jockey wheel was disputed to some extent by Mr Pearce who said that the Water Corporation's excavator trailer was fine;
(f)the alignment of the jockey wheel was conceded by Mr Pearce as an actual issue that would not have warranted the hiring of a spare car trailer over that particular weekend;
(g)the appellant admits that the car trailer, hired on Friday, 19 December 2014, was returned three days later on Monday, 22 December 2014 with the costs of $616 being paid for by his Water Corporation corporate credit card;
(h)there was no evidence of actual use by the Water Corporation of the car trailer during the hiring period, or proof that the Water Corporation trailer was modified in that time;
(i)immediately upon returning to Kununurra from Katherine with the Commodore (the appellant's personal vehicle) on the car trailer, the car trailer was returned to CAPS Hire having not been used for any intended or required Water Corporation purpose;
(j)the appellant's assertion that the hire of the car trailer paid for by the Water Corporation by the corporate credit card was not intended by him to defraud the Water Corporation was an impossible coincidence of intended use for personal purposes, and is preposterous, farcical and not even remotely credible;
(k)the hire of the car trailer on Friday, 19 December 2014 from CAPS Hire when multiple excavator trailers were available in the 1.7 tonne to 1.9 tonne range and for the jockey wheel issue was a 'ruse and untrue'; and
(l)the appellant's conduct in hiring the car trailer for the specific use (using it to pick up the unlicensed vehicle in Katherine) for apparently no benefit or use by the Water Corporation is dishonest and for the particular purpose that:
(i)the car trailer was hired at a cost to the Water Corporation that relieved the appellant from having to bear that cost, and was the benefit gained by the appellant; and
(ii)the appellant knew (when he hired the car trailer) he would be needing to use a car trailer to tow his recent purchase from Katherine to Kununurra.
6.0 Ground 1 of the appeal - alleged errors of fact
In relation to the findings of fact made by the magistrate that are challenged in this appeal, the appellant submits that in reaching each of these findings the magistrate made errors of law.
An appeal from a decision of a magistrate will not be allowed unless a material error has been made by the magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or that the proceedings were fundamentally flawed.
However, even if a ground of appeal is decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[29]
6.1 Circumstantial evidence - legal principles
[29] Criminal Appeals Act 2004 (WA), s 14(2).
Circumstantial evidence is evidence of facts from which (if accepted) a judge, magistrate, or jury may infer the existence of a fact in issue.[30]
[30] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).
In assessing the evidence established beyond reasonable doubt by the circumstances the question before a finder of fact is whether it is open on the whole of the evidence, to be satisfied as to the guilt of the accused of an offence as charged.
A circumstantial case is not, however, to be considered on a piecemeal basis or on the rejection of one circumstantial fact alone. This well established point was explained by Gummow, Hayne and Crennan JJ in R v Hillier as follows:[31]
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that 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.
The force of that proposition is well illustrated by the decision in Plomp v The Queen. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife.
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:
'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf Weeder v The Queen.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.'
And as Dixon CJ said in Plomp:
'All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.'
(Emphasis added.)
[31] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] - [48].
Circumstantial evidence may include retrospectant circumstantial evidence. That is, evidence of a subsequent occurrence of an act may be relied upon to support an inference that the state of mind existed at an earlier point in time.[32]
6.2 Did the magistrate err in finding that the car trailer was immediately returned to CAPS Hire?
[32] JD Heydon, Cross on Evidence (11th ed) [1170]; approved in Astway Pty Ltd v Council of the City of the Gold Coast [2008] QCA 073; (2008) 159 LGERA 335 [43] (Atkinson J; Holmes JA & McKenzie AJA agreeing).
As the appellant points out, there was no reliable evidence before his Honour upon which a finding could have been properly made that the appellant returned the car trailer to CAPS Hire immediately upon his return from Katherine to Kununurra.
The appellant's evidence was that he returned from Katherine to Kununurra on Sunday, 21 December 2014 and returned the car trailer to the Water Corporation depot on that afternoon.[33] He also said that the car trailer remained in the depot on 22 and 23 December 2014.[34] His evidence was that he returned the car trailer to CAPS Hire on Tuesday, 23 December 2014.[35]
[33] Primary court ts 152, 2 March 2017.
[34] Primary court ts 141, 2 March 2017.
[35] Primary court ts 141, 2 March 2017; this evidence was given in answer to a leading question in re‑examination without objection from the prosecutor. The prosecutor did not question the appellant about the date or time or return of the car hire trailer to CAPS Hire.
When Mr Trimbell gave evidence he was not asked any questions by the prosecution or the defence about when the car trailer was returned to CAPS Hire. Mr Trimbell's evidence was that the tax invoice for the hire of the car trailer was printed at the time of hire. In particular, the computer generated (a date and time of day) on the document where it is printed out and this would have been between 10 minutes after or five minutes before the appellant came into CAPS Hire and asked to hire a car trailer.[36]
[36] Primary court ts 8, 1 March 2017.
On the face of the document, the invoice records the customer for the hire of the car trailer as the Water Corporation and a customer code as 'CASH - 600'.[37] Under the heading 'Status' the invoice also records 'Returned'; under the heading 'Rental period information' the invoice reads 'contract date: 19/12/2014 and 19/12/2014 9.10am 22/12/2014 10.30am'; and under the heading 'Pricing information' the number of days charged is recorded as 3.50.[38]
[37] Exhibit 6: Mr Trimbell's evidence was that '600' is the code for Kununurra: primary court ts 5, 1 March 2017.
[38] Exhibit 6.
Attached to the face of the copy of the invoice is an eftpos receipt from the Commonwealth Bank recording that payment of $616 was received by credit card on 23 December 2014 at 10.53am. The date recorded on the eftpos receipt is the same date that is recorded for the transaction on the P card statement.[39]
[39] Exhibit 5.
When regard is had to all of this evidence it is clear that the magistrate erred in finding that the car trailer was immediately returned to CAPS Hire upon returning to Kununurra from Katherine.
6.3 Did the magistrate err in finding that the car trailer was unsuitable for use by the Water Corporation's mini excavator?
Mr Trimbell gave the following relevant evidence:[40]
(a)the appellant only asked to hire a car trailer;
(b)a car trailer is about 2 m wide by 4.5 m long and a mini excavator trailer is about 1200 wide by 1800 to 2 m long;
(c)six out of the seven CAPS Hire mini excavator trailers have a full floor with no gap in the middle;
(d)a mini excavator could fit on a car trailer but to do so the tracks (of the mini excavator) may have to be widened because the CAPS Hire car trailer has a pole down the centre of the trailer;
(e)a car trailer could be used (to transport a mini excavator) providing the tracks can be widened over the gap in the centre of the trailer and to do so you would have to measure the tracks of the mini excavator; and
(f)although the CAPS Hire mini excavators weigh 1.7 tonne, a CAPS Hire excavator trailer had been hired to transport the Water Corporation's mini excavator at the time Mr Trimbell was giving his evidence.
[40] Primary court ts 6 ‑ 10, 1 March 2017.
Consequently, Mr Trimbell's evidence was that even if a car trailer could be used to transport a mini excavator it would be necessary to check whether it was possible to fit the mini excavator onto the car trailer by adjusting the tracks.
Mr Trimbell also gave evidence that he would not recommend a car trailer instead of a mini excavator trailer to convey a mini excavator. The effect of his evidence was that:
(a)a car trailer was designed for conveying a car and mini excavator trailers were designed for conveying the mini excavators;[41] and
(b)the CAPS mini excavator trailers were suitable for the Water Corporation's 1.9 or 1.7 tonne mini excavator, as the Water Corporation was hiring one at the time of trial.[42]
[41] Primary court ts 8, 1 March 2017.
[42] Primary court ts 10, 1 March 2017.
When the whole of Mr Trimbell's evidence is considered I am not satisfied that his Honour's finding of fact in this regard was inaccurate.
6.4 Did the magistrate err in finding that the appellant overlooked seven other mini excavator trailers?
Mr Trimbell's evidence that CAPS Hire had seven mini excavator trailers available for hire was challenged in cross‑examination during which Mr Trimbell:[43]
(a)conceded that four of the seven mini excavator trailers had mini excavators on them (which necessarily requires the hire of a mini excavator as well as a trailer); and
(b)could not state with certainty how many excavator trailers were available on 19 December 2014 but said that he rarely had all seven trailers out and that he would be surprised if the three trailers (without excavators) were all out on 19 December 2014.
[43] Primary court ts 9, 1 March 2017.
It was asserted by the defence that in comparison to the 1.7 tonne excavators leased by CAPS Hire, the Water Corporation's mini excavator was larger; it was a 1.9 tonne variant. It was said to follow, therefore, that the conclusion reached by his Honour that the appellant overlooked seven other trailers and hired a car trailer because he needed one large enough to transport his personal vehicle was not the only inference reasonably open on the evidence.
This hypothesis, however, was inconsistent with Mr Trimbell's evidence that the Water Corporation was at the time of trial hiring a CAPS Hire mini excavator trailer for use by the Water Corporation's 1.9 tonne mini excavator. In any event, as the respondent points out, the appellant admitted in cross‑examination that he did not ask for a mini excavator trailer, but only asked to hire a car trailer.[44]
[44] ts 12, 29, 15 May 2019.
The finding made by the magistrate that the appellant overlooked seven other mini excavator trailers must necessarily be understood in the context that the appellant made no inquiry about the hire of a trailer for a mini excavator.
For these reasons, I am not satisfied that his Honour erred in making this finding of fact.
6.5 Did the magistrate err in finding that the issue of the alignment of the jockey wheel of the Water Corporation mini excavator was a ruse?
The magistrate found that the Water Corporation mini excavator trailer was not inoperable and that the hire of the car trailer from CAPS Hire was not warranted because the Water Corporation had excavator trailers that were available for use.
Mr Pearce's evidence was that he recalled that there was a problem in relation to the jockey wheel being too low to attach the trailer to the tow ball of a vehicle. He agreed that he had to put slabs underneath the jockey wheel to get the front of the trailer high enough to attach it to a tow ball. He also recalled that there had been some discussion about modifying the excavator trailer and a number of solutions were canvassed but in the end it was decided that changing the tow balls by installing a dropdown hitch to each of the vehicles was a simpler solution.[45]
[45] Primary court ts 117 ‑ 118, 8 December 2016.
Mr Pearce denied that there had been discussions over modifying the trailers or tow balls around Christmas 2014 and said that it had occurred earlier in the year. He also said that there had been some repairs to the mini excavator trailer earlier that year, in particular to the brakes and suspension of the trailer.[46] However, he did concede that he could be mistaken as to when a dropdown hitch was purchased to fit the vehicles and it is possible that that occurred around Christmas 2014.[47]
[46] Primary court ts 118, 8 December 2016.
[47] Primary court ts 119, 8 December 2016.
Mr Pearce also stated that he did not find out that the car trailer had been hired until after the event, but conceded that he could not remember what occurred on 19 December 2014 or whether he had had a rostered day off on that day, or whether he was rostered off on the previous day.[48]
[48] Primary court ts 119 ‑ 120, 8 December 2016.
Mr Pearce did, however, state that if the Water Corporation trailer was out for repairs at that time, he would have known about it because he would have been the person responsible for organising to have the trailer taken away for repair.[49]
[49] Primary court ts 90 ‑ 91, 8 December 2016.
In any event, as pointed out on behalf of the respondent, the trailer jockey wheel height and the tow ball heights on the vehicles did not render the mini excavator trailer inoperable. The effect of Mr Pearce's evidence was that although it was difficult the mini excavator trailer could nonetheless be properly attached to the vehicles' tow ball.
Of importance is the fact that, on the appellant's own evidence, the Water Corporation did have a trailer available for use that could have been used for the mini excavator on 19 December 2014.[50] The appellant's evidence was that there was also a plant trailer that could be towed by a large truck that could be used to tow a car.[51] It follows that if a trailer was big enough to enable a car to be loaded onto it for towing then this trailer could have been used, if it was necessary to use the mini excavator, on or between 19 December 2014 and 23 December 2014.
[50] Primary court ts 130 ‑ 131, 2 March 2017.
[51] Primary court ts 150, 2 March 2017.
In any event, as the magistrate properly observed there was no evidence that the trailer hired by the appellant was required to be used by the Water Corporation.
Contrary to the appellant's submissions, it is not reasonably arguable that there was any reasonable inference consistent with innocence available on the whole of the evidence at trial. In particular, an inference consistent with innocence that the jockey wheel issue rendered the Water Corporation trailer inoperable and necessitated the appellant's hire of the CAPS Hire car trailer for Water Corporation purposes was not a reasonable inference open to be drawn by his Honour on the evidence before the court.
For these reasons, I am not satisfied that his Honour erred in making this finding of fact.
6.6 Did the magistrate err in finding that the appellant knew when he hired the car trailer that he needed a car trailer to pick up the vehicle from Katherine?
The appellant contends that the magistrate's finding that the appellant knew he needed a car trailer to collect his personal vehicle on the weekend at the time he entered into the contract for hire of the car trailer from CAPS Hire is not supported by the evidence and was unreasonable.
Further, it is argued that it was unreasonable for his Honour to find that the appellant's contention that the hire of the trailer was intended to be used by the Water Corporation as being preposterous, farcical and not remotely credible was contrary to the documentary evidence and the evidence given by the appellant.
The appellant says his evidence as to the timing and manner of learning his vehicle had arrived in Katherine was corroborated by documentary evidence, evidence that was unchallenged by the prosecution in cross‑examination.
The documentary evidence before the magistrate on this issue was that:
(a)on Monday, 15 December 2014:
(i)the appellant received an email from the customer service manager of transporting service, VIP Automotive Solutions, Raelene Furness at 6.36am stating:[52]
[52] Exhibit 30; this email has been edited to anonymise the appellant's name.
Hi S,
The handover on the VH SLE Commodore took place Friday.
As advised by Kristine eta to Katherine Agent is Tuesday 23rd December.
It is now time for payment … can you please advise your preferred payment method for our fees ($2900.00). We accept Visa/Mastercard or direct deposit, with funds required ASAP.
(ii)at 8.28am, the appellant replied as follows:[53]
[53] Exhibit 30; this email has been edited to anonymise the appellant's name.
Hi Raelene
We will do it by direct deposit
What reference do you want on the deposit my name or the vehicle VIN
Regards
SS
(b)On Friday, 19 December 2014
(i)the appellant received the following text message at 13.53.48:[54]
Vehicle is in transit to katherine agent - regards VIP Automotive Solutions (Please do not reply to this message);
(ii)despite the message stating not to reply, the appellant replied at 13.58.40:[55]
Hi Raelene thanks for the update is the truck driver going to still call me when he gets to Mt Isa with his eta for Katherine ?? So I can meet him there
Regards
SS
[54] Exhibit 31.
[55] Exhibit 31; this text message has been edited to anonymise the appellant's name.
The appellant's evidence was that the vehicle arrived in Katherine on the morning of Saturday, 20 December 2014. The appellant initially stated that he received a phone call from the truck driver at 8.55am that morning. When shown his mobile phone records, he agreed he called the truck driver at that time.[56]
[56] Primary court, ts 135 ‑ 136, 2 March 2017.
The appellant also gave evidence that whilst the initial email from VIP Automotive Solutions on Monday, 15 December 2014 estimated delivery of the vehicle as 23 December 2014, he received a text message at some point to say it was coming earlier, and that there were other conversations (that he had had with VIP Automotive Solutions) where it was discussed that a driver was going to call him when it reached Katherine because Katherine was a transit stop for the truck on the way through to Darwin and was not a depot as such.
The appellant's text to VIP Automotive Solutions on 19 December 2014 (in which he asked whether the truck driver was still going to call him when he got to Mount Isa with his eta for Katherine in order that the appellant could meet him there) must be considered with all of the circumstantial evidence that points to an irresistible inference that the Water Corporation had no need for a car trailer on 19 December 2014. Consequently, it was open to his Honour to find as he did, that prior to the appellant hiring the car trailer he already knew that the car was likely to arrive in Katherine on that weekend.
6.7 Conclusion - proposed ground 1
Whilst leave to appeal in relation to part of ground 1 ought to be allowed, I am not satisfied that the error in respect of the timing of the return of the car trailer to CAPS Hire resulted in demonstrable error such that the verdict of guilty is tainted. Nor am I satisfied that such an error by the magistrate resulted in a substantial miscarriage of justice.
Although the evidence establishes that the appellant returned the car trailer to the Water Corporation's depot in Kununurra on Sunday, 21 December 2014, and did not return the car trailer to CAPS Hire until Tuesday, 23 December 2014, when regard is had to the following facts this circumstance alone does not lead to an inference consistent with the innocence of the appellant when regard is had to the following findings of fact:
(a)the appellant knew when he hired the CAPS Hire car trailer he needed a car trailer to tow his vehicle from Katherine to Kununurra that weekend;
(b)the Water Corporation had no need for the use of a car trailer to tow the mini excavator on or between 19 December 2014 to 23 December 2014. To the contrary, the Water Corporation had a truck trailer that could have been used, or the mini excavator trailer could have been used (albeit with some difficulty);
(c)a car trailer is unsuitable for use as a mini excavator trailer without an adjustment of the tracks of the mini excavator;
(d)the appellant's handwritten notes on the CAPS Hire invoice and P statement were false as no repairs to the Water Corporation's mini excavator trailer were necessary (to correct the jockey wheel issue);
(e)there was no evidence that the car trailer hired from CAPS Hire was used by the Water Corporation at any time on or between 19 December 2014 and 23 December 2014; and
(f)the appellant could have asked (Mr Trimbell of CAPS Hire) to hire a mini excavator trailer suitable for towing the Water Corporation's mini excavator, but he did not do so.
7.0 Proposed grounds 2, 3 and 4
The appellant submits:
(a)there was insufficient evidence to prove beyond reasonable doubt that the appellant had a subjective intention to use his corporate credit card improperly at the time the relevant benefit was gained or obtained, namely the use of the car trailer;
(b)that it must be proved that the appellant formed the relevant intention either before or immediately before he gained the benefit of the use of the car trailer; and
(c)the magistrate erred in finding the element of deceit or fraudulent means, as particularised in the prosecution notice, proven beyond reasonable doubt when the evidence was insufficient to prove an improper purpose in using the credit card.
The appellant also raises two issues with the particulars of the charge. Firstly, he raises an issue with the fact that the dates or the period on which the offence was said to have occurred do not include the date on which the corporate credit card was used to pay for the car trailer. Secondly, it is contended that what is pleaded in the charge is an intent to defraud by fraudulent means, rather than by deceit, and the magistrate relied upon fraudulent means not pleaded in the prosecution notice, that is, avoiding the bearing of the cost of the hire of the trailer by using the corporate credit card.
7.1 The elements of the offence of fraud
Section 409(1) of the Criminal Code provides:
(1)Any person who, with intent to defraud, by deceit or any
fraudulent means ‑
(a)obtains property from any person; or
(b)induces any person to deliver property to another person; or
(c)gains a benefit, pecuniary or otherwise, for any person; or
(d)causes a detriment, pecuniary or otherwise, to any person; or
(e)induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f)induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime and is liable ‑
(g)if the person deceived is of or over the age of 60 years, to imprisonment for 10 years; or
(h)in any other case, to imprisonment for 7 years.
Alternative offence: s 378, 414 or 417.
Summary conviction penalty (subject to subsection (2)):
(a)in a case to which paragraph (g) applies:
imprisonment for 3 years and a fine of $36 000; or
(b)in a case to which paragraph (h) applies:
imprisonment for 2 years and a fine of $24 000.
The elements of an offence under s 409(1) that the prosecution must prove are:[57]
(a)a subjective intent to defraud (formed by the accused);
(b)(the employment by the accused of) deceit or fraudulent means (to be judged objectively); and
(c)the deceit or fraudulent means has objectively caused one or more of the consequences specified in pars (a) to (f) of s 409(1).
[57] Hunter v The State of Western Australia [2014] WASCA 184 [36] (McLure P), see also [96] (Buss JA); applying Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [140] ‑ [143], [152], [154] (McLure JA); Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576; R v Kastratovic (1985) 42 SASR 59; (1985) 19 A Crim R 28; Roberts v The State of Western Australia [2005] WASCA 37; (2005) 29 WAR 445.
The element of intent to defraud where s 409(1)(c) applies has its common law meaning and is in turn composed of four components being an intention to:[58]
(1)deprive a person;
(2)of something that is of actual or potential economic value;
(3)by dishonest means; and
(4)to gain a benefit, pecuniary or otherwise, for any person.
[58] Hunter v The State of Western Australia [2014] WASCA 184 [39] ‑ [40] (McLure P).
Proof of deceit or fraudulent means is sufficient to prove the component of an intention to use dishonest means.[59]
[59] Hunter v The State of Western Australia [2014] WASCA 184 [41] (McLure P).
Deceit and fraudulent means connote dishonest conduct. 'Deceit' in criminal law means to induce a person to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.[60]
[60] Hunter v The State of Western Australia [2014] WASCA 184 [37] (McLure P); Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [13] (Wheeler JA); applying Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728, 732 (Buckley J) and Tan v The Queen [1979] WAR 149, 153 (Burt CJ), 156 (Wallace J).
'Fraudulent means' encompasses means which are not in the nature of a falsehood or deceit; it encompasses all other means which can properly be stigmatised as dishonest.[61]
[61] Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [14] (Wheeler JA); applying R v Olan, Hudson & Hartnett (1978) 41 CCC (2d) 145, 149.
Evidence showing that statements on an invoice or invoices are false may be relevant evidence that goes to the proof of deceit or fraudulent means used by an accused.[62] That evidence may also be relevant to proof of an intention to defraud.[63]
7.2 Issues going to the particulars of the charge and the case run at first instance
[62] Wittensleger v The State of Western Australia [2014] WASCA 205 [81] (Hall J; McLure P & Mazza JA agreeing).
[63] Wittensleger v The State of Western Australia [2014] WASCA 205 [81] ‑ [82] (Hall J; McLure P & Mazza JA agreeing).
The dates or period on which the offence of fraud is said to have occurred are stated in the charge as (on and between) 19 December 2014 and 22 December 2014.[64]
[64] Prosecution notice, charge KR 1527/2015.
The appellant did not use the corporate credit card until 23 December 2014. The date or period over which the offence was alleged to have occurred is however not an element of the offence but a mere particular.
It is argued that the appellant has been prejudiced by the particularisation of the charge in that the alleged improper use of the card occurred after the time it is said the offence occurred.
It is also said that the timing of the relevant intent is the time at which the appellant used the corporate credit card to pay for the hire of the trailer. It is argued that the benefit, as particularised in the prosecution (that the appellant 'gained a benefit, namely the use of a hired car trailer to the value of $616') is an impossibility because this had already occurred at the time the appellant is said to have improperly used the corporate credit card.
Instead, it is said that the charge should have either alleged that on 23 December 2014, the appellant, with intent to defraud, by improper use of a company credit card, caused a detriment to the Water Corporation in the amount of $616 or gained a benefit of not having to pay for the use of the hired car trailer to the value of $616.
It is also argued that what is evident from the trial transcript and written submissions provided to the magistrate in closing is that the defence case at trial was focused on answering the allegation that between 19 December 2014 and 22 December 2014, with intent to defraud, by improper use of a corporate credit card, the appellant gained a benefit, namely use of a hired car trailer to the value of $616.
For the reasons that follow, I am of the opinion that the only amendment to the charge that was required was that the period over which the offence was said to have occurred should have been amended to end on 23 December 2014. Such amendment could not have led to a miscarriage of justice, as it could not be said that such an amendment was of such a character to take the appellant by surprise to be misleading or result in a different case that the appellant was required to answer.
The appellant also argues that the case particularised in the charge and run at trial by the prosecution was a case of intent to defraud by fraudulent means and not by deceit. However, this was not the basis upon which the prosecution ran its case at trial. The prosecution did not open on this basis. Nor was the intention to defraud in the charge expressly particularised as by deceit or fraudulent means.
Both the prosecution and defence filed closing written submissions in the Magistrates Court going to the intent to defraud by deceit and/or fraudulent means. In particular, the defence submitted that the prosecution had failed to prove the element of a deceit or fraudulent means as particularised in the prosecution notice and that the prosecution had failed to prove that deceit or fraudulent resulted in the accused gaining a benefit as particularised in the prosecution notice.[65]
[65] Defence outline of closing submissions, filed in the Magistrates Court on 31 July 2017.
The defence in its outline of closing arguments then went on to elaborate in some detail on the particularised deceit or fraudulent means as alleged in the prosecution case.[66]
[66] Defence outline of closing submissions, filed in the Magistrates Court on 31 July 2017 [38] ‑ [55].
The respondent points out that the appellant's submissions are premised on a misconception that the offence is to be determined on the basis of the appellant's subjective intention at the time of entering into the hire contract on Friday, 19 December 2014. However, as particularised in the charge (and if amended), the offence and thus the intention to defraud occurred over a period of time from Friday, 19 December 2014 to Tuesday morning on 23 December 2014 when the appellant returned the trailer to CAPS Hire. When the appellant paid for the car trailer hire using the Water Corporation company credit card, despite the car trailer not being used for Water Corporation purposes and only having been hired and used for personal purposes, the offence was complete.
The magistrate properly apprehended and applied the applicable law. His Honour properly stated that the case before him was to decide on the evidence what the appellant's intentions were, if any, at the relevant times and whether the appellant intended to defraud the Water Corporation by deceit, or by any other fraudulent means.
The appellant's defence turned upon his assertion that the hire of the CAPS Hire car trailer was necessary for Water Corporation purposes; that his use of the car trailer did not affect the Water Corporation's purposes and that it was coincidental that his personal vehicle arrived on that weekend. Whilst the onus never shifted to the appellant, his credibility was an essential issue in determining whether he had an intention to defraud.
His Honour properly found that the appellant intended to defraud the Water Corporation by obtaining the use of the car trailer for his personal purposes (and not for any legitimate business need) and using his corporate credit card to pay the hire fee.
There is no doubt that the appellant obtained a benefit from the use of the car trailer without having to pay for it himself.
The dishonest conduct of the appellant was not a single act, rather it was a course of conduct that was both deceitful and performed by fraudulent means. Whilst his Honour did not specifically find whether the appellant engaged in deceit or fraudulent means, his Honour in effect found that the appellant engaged in dishonest conduct by hiring the trailer in the name of the Water Corporation when he knew he needed the car trailer for his own personal use and the Water Corporation did not need a car trailer.
At law, such conduct can properly be characterised as 'deceit'. His Honour also found that the appellant engaged in fraudulent conduct by dishonestly using the corporate credit card to pay for the trailer. This conduct can properly be characterised as fraudulent means.
This evidence is also relevant to the appellant's intention to defraud. The payment using the credit card supports an inference of the appellant's state of mind at the time that he hired the car trailer and was evidence of an intention to defraud the Water Corporation by causing a financial impost on the Water Corporation to pay for the cost of the hire of the car trailer.
The retrospectant evidence of the statements written on the invoice and the P card statement is also relevant evidence that goes to the proof of deceit and fraudulent means because the statements written by the appellant were false in that the excavator trailer was not being repaired during the period of time for which the trailer was hired.
Conclusion
I am of the opinion that the appellant should be granted an extension of time in which to file the appeal, leave to appeal on proposed ground 1 should be allowed, leave to appeal on proposed grounds 2, 3 and 4 should be refused, and the appeal in its entirety be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith24 JUNE 2019
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