Thakrar v Hull
[2013] WASC 447
•16 DECEMBER 2013
THAKRAR -v- HULL [2013] WASC 447
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 447 | |
| Case No: | SJA:1042/2013 | 16 AUGUST & 23 SEPTEMBER 2013 | |
| Coram: | CORBOY J | 16/12/13 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARVIND KUMAR JAGJIVAN THAKRAR ANDREA KAREN HULL |
Catchwords: | Criminal law Whether magistrate erred in fact in finding appellant guilty of fraudulently causing a detriment Turns on its own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(1), s 39(2) Criminal Code (WA), s 409(1) |
Case References: | Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 Brown v Deveroux [2008] WASC 299; (2008) 192 A Crim R 190 Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 Hunt v Callaghan [2011] WASC 10 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728 The State of Western Australia v Rayney [2013] WASCA 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ANDREA KAREN HULL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : PE 32733 of 2012
Catchwords:
Criminal law - Whether magistrate erred in fact in finding appellant guilty of fraudulently causing a detriment - Turns on its own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1), s 39(2)
Criminal Code (WA), s 409(1)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms S Markham
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Brown v Deveroux [2008] WASC 299; (2008) 192 A Crim R 190
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221
Hunt v Callaghan [2011] WASC 10
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728
The State of Western Australia v Rayney [2013] WASCA 219
- CORBOY J:
The appeal and the result
1 The appellant was charged that between 1 March 2010 and 8 April 2010 at Perth, with intent to defraud by deceit, he caused a detriment, namely $10,000, to the Australian Indian Business Association Inc (the Association). He was convicted of that charge on 5 February 2013, following a two-day trial.
2 The appellant alleged by his proposed grounds of appeal that the learned magistrate had made a number of factual errors in his findings. It was contended that the effect of those errors was that the magistrate had further erred in finding that the charge had been proved beyond a reasonable doubt.
3 The appellant represented himself in the appeal. Further submissions were sought following the hearing of the appeal on three questions that were not raised in the grounds of appeal but which, arguably, might have arisen out of the magistrate's reasons for decision:
(a) whether his Honour was required, in effect, to direct himself according to Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507;
(b) if so, whether there was evidence that was capable of establishing beyond a reasonable doubt that the appellant had knowingly deceived the president of the Association at the time when he gave a cheque to the president for signing - the gist of the prosecution case being that the appellant had presented a blank cheque to the president for signing intending to subsequently complete the cheque in such a way as to cause the Association to make a payment that had not been authorised;
(c) whether it was open to conclude that the trial had not been fairly conducted having regard to the prosecutor's opening and closing statements, the terms of the charge and the facts alleged in the statement of material facts.
4 I have concluded that the appellant has not established that the magistrate made any error of fact or that the conviction should be set aside on any other ground. Accordingly, I find that the appellant should be granted leave to appeal but the appeal should be dismissed.
The prosecution case
5 The purpose of the Association was to provide a 'business networking club' (Khare, ts 5). The affairs of the Association were managed by an executive committee comprising a president, vice-president, secretary, treasurer and at least four other persons (rule 10 of the constitution of the Association: exhibit B1).
6 The appellant was the Association's treasurer in 2010. The responsibilities of the treasurer included (rule 13(c) of the constitution):
[To] make payments from the funds of the Association with the authorityof a general meeting or of the Committee and in so doing ensure that all cheques are signed by one of the following Committee members ---
(i) Treasurer and (President or Vice President)
(ii) Secretary and (President or Vice President)
(emphasis added)
7 The prosecution alleged that the executive committee of the Association had adopted a practice by which, from time to time, the president signed blank cheques that were provided by and returned to the treasurer. The reason for the practice was explained by Mr Kiran Khare who was the president of the Association in 2010 (ts 6):
Now, what was the situation in relation to payments of accounts for the organisation?---We inherited a system we would sign two to three blank cheques so that the day-to-day running or the running of the association, the little payments were like the postal payments or the small payments would be made on a regular basis, because we used to meet once a month and if there was extraordinary expenditure it would be coming through the minutes, through the discussion in the committee meeting.
8 The prosecution further alleged that:
(a) On about 8 April 2010, the appellant completed and signed a blank cheque that had been given to him pursuant to that practice and which had been, accordingly, also signed by the president.
(b) The payee of the cheque as drawn by the appellant was SAM International Pty Ltd as trustee for FUN (FUN was an acronym used to refer to the Financial Undertaking Networking Unit Trust). The cheque was made payable in an amount of $10,000.
(c) The appellant and his wife were directors of SAM International (SAM).
(d) The appellant had not been authorised by the executive committee of the Association to draw a cheque in favour of SAM in an amount of $10,000.
9 The prosecution called a number of members of the executive committee of the Association as at April 2010: the president, Mr Khare; the vice-president, Mr Kamleshkumar Patel; the secretary, Mr Anil Bhudia; a committee member, Mr Stephen Cousins; a member of the Association who became its secretary in May 2010, Mr Roger Akkasou; a committee member, Mr Ashok Kinariwala; and another committee member, Mr Numera Kerai. The prosecution also called Constable Andrea Hull who was, in March 2012, attached to the Major Fraud Squad. It is not necessary to separately summarise the evidence given by each of those witnesses.
The appellant's case
10 The appellant gave evidence that he caused SAM to be incorporated. The company was to engage in two activities: first, to provide education about investing to members of what the appellant referred to as the 'FUN Club'; second, to provide an investment vehicle for the holders of units in the FUN Unit Trust (the FUN trust).
11 The appellant stated further that the executive committee had agreed at a meeting held in January 2010 that the Association would:
(a) become a member of the FUN Club by paying a subscription fee of $450;
(b) purchase units in the FUN trust to a value of $10,000 as an investment.
12 Accordingly, the appellant maintained that he was authorised by the executive committee of the Association to pay $10,000 to SAM. He denied that there was a practice of the president providing him with signed blank cheques to enable the Association to meet its incidental expenses. He stated that the president had signed a cheque made payable to SAM at a meeting of the executive committee held on 31 March 2010 and that the cheque had been completed prior to signing
The magistrate's findings
13 His Honour found that:
(a) As at March 2010, the Association held approximately $17,000 in term deposits. A term deposit (by inference, in an amount of $10,000) was to mature on 6 April 2010 (5 February 2013, ts 2).
(b) The president regularly signed blank cheques that were then given to the treasurer. His Honour found that the evidence of 'a number of prosecution witnesses' regarding that practice was 'credible and plausible and the accused's denial not so' (ts 5).
(c) The executive committee did not discuss investing in the FUN trust at any meeting held between January and April 2010. There was no reference to any discussion or decision about investing in the trust in the minutes of the executive committee and the witnesses called by the prosecution denied that there had been any discussion (ts 5 - 6).
(d) Contrary to his evidence, the appellant had not received an application form (for units in the FUN trust) that had been signed by the Association and which he had returned to Mr Patel (ts 6).
(e) It was implausible that the Association would place 'a major portion of its assets' with an entity that was 'in its infancy' (ts 6).
14 The magistrate concluded that:
I am satisfied that the accused in his capacity of treasurer induced the president to sign a blank cheque on the basis it was to be used for club expenses but with the intent to withdraw a sum of $10,000 to place [it] in the trust. The accused was a co-director of the trustee company at the relevant time and motivation for such an act on his part whether it be personal gain or otherwise is simply not known but in my view that is not of significance (ts 6).
15 The magistrate made no express finding as to when and how the appellant had induced the president to sign the blank cheque. However, he noted in his reasons that Mr Khare had stated that he had signed blank cheques at the March 2010 meeting of the executive committee in accordance with the Association's practice. It may be inferred that his Honour accepted that evidence, together with other evidence given by Mr Khare regarding a decision taken by the executive committee to subscribe for membership of the FUN Club. His Honour summarised the relevant parts of Mr Khare's evidence as follows (ts 3):
His evidence was that at the March 2010 meeting this practice occurred. He said the association cheque dated 8 April 2010 payable to SAM International Pty Ltd as trustee for FUN was only seen by him in August of 2011 albeit it had his signature on it. He said such a payment had not been authorised by the association committee. He said the fund trust had been discussed by members of the committee in March of 2010 and been agreed to join as a member for purposes of learning to invest only so that any association members could attend trust educational meetings only but not that one would necessarily invest in the association - not to invest the association's funds.
He gave evidence that of an investment - if that investment in the trust was to be made it would have had to [be] recorded in the minutes of the association meetings. The minutes of the association meetings [of] January, February and March of 2010 were produced and tendered. None of these minutes recorded any mention of an investment of $10,000 in FUN. He denied that there was a discussion and agreement at the January 2010 meeting to invest the $10,000 in the funds trust units.
He agreed he signed a member's agreement on behalf of the association which was to allow association members to access to the educational side of the FUN Trust. This occurred in January 2010 albeit it was dated 24 January 2010 and says that that was filled in by the accused in March of 2010. The association bank records show that a cheque for $450 which was the joining fee for such joining of the trust was drawn on 23 February 2010 some three weeks after the February 2010 meeting.
The appellant's proposed grounds of appeal
16 The appellant's proposed grounds of appeal (headed '2nd Revised Grounds of Appeal') were contained in ten closely-typed pages. The appellant also provided a 16 page document (entitled, 'Statement of Response to the letter from Supreme Court') which was partly an explanation about a number of documents that the appellant had filed in his appeal and partly submissions concerning the appellant's case at trial and in his appeal.
17 The intended effect of the proposed grounds was further explained and clarified at the first hearing of the appeal. In summary, the appellant alleged that:
(1) the magistrate's 'understanding' that the FUN trust had two aims (educational and investment) would have been 'different' if certain documents had been tendered as exhibits at the trial (the proposed grounds of appeal identified the documents; copies of the documents formed part of the bundle of additional documents filed by the appellant);
(2) the magistrate would have made different findings about the status of the FUN trust as at April 2010 had the bundle of documents accompanying the proposed grounds of appeal been tendered at the trial;
(3) the magistrate erred in placing weight on the absence of any reference in the minutes of the executive committee to the proposed investment by the Association in the FUN trust;
(4) (in effect) the magistrate erred in finding that the executive committee had not discussed and approved an investment by the Association in the FUN trust;
(5) the magistrate erred in finding that there was a practice by which the president of the Association signed blank cheques to enable the treasurer to pay the Association's incidental expenses;
(6) the magistrate erred in finding that the appellant had the only key to the Association's post box and so had access to bank statements issued by the Association's bank;
(7) the magistrate erred in finding that the prosecution witnesses gave plausible and credible evidence;
(8) the prosecutor ought to have played and tendered an electronically recorded interview conducted by the police with the appellant;
(9) the magistrate erred in rejecting the appellant's evidence as being self-serving;
(10) the magistrate erred by placing weight on the appellant's role in establishing the FUN trust when the appellant had also been instrumental in the formation of the Association.
18 The parties accepted that this summary captured their understanding of the matters sought to be raised by the appellant in his proposed grounds of appeal. It should also be noted that the appellant mostly sought by his 'grounds' of appeal and supporting submissions to re-argue his case rather than to identify appellable errors of fact or law.
The principles relevant to the appeal
19 Section 8(1)(a) of the Criminal Appeals Act 2004 (WA) (the Act) provides that an appeal may be allowed on grounds that include that the court of summary jurisdiction made an error of law or fact or both law and fact. Section 8(1)(b) of the Act provides that an appeal may be allowed on the ground that there was a miscarriage of justice. Obviously, a miscarriage of justice will occur where a guilty verdict was unreasonable or could not have been supported by the evidence: Hunt v Callaghan [2011] WASC 10 [150].
20 Section 39(1) of the Act provides that the appeal court must decide an appeal on the evidence and material that was before the lower court; that is, the appeal is by way of a rehearing on the evidence received in the court of summary jurisdiction. That is subject to the power of the appeal court to receive further evidence pursuant to s 40 of the Act.
21 The nature of an appeal from a judge sitting alone or a magistrate was considered by the Court of Appeal in The State of Western Australia v Rayney [2013] WASCA 219 [372] - [375]. Briefly stated, the appellate court is required to review the whole record of the trial and to make its own independent assessment of the evidence. However, it must make due allowance for the 'natural limitations' inherent in an appellate court proceeding on the record so that, ordinarily, credibility-based findings will not be reversed on appeal unless it has been demonstrated that those findings were flawed by reference to inconvertible facts or uncontested testimony.
22 The principles to be applied when it is alleged in an appeal that a conviction should be set aside as being unreasonable or not supported by the evidence are well-established and do not need to be further explored in these reasons: see M v The Queen [1994] HCA 63; (1994) 181 CLR 487 especially at 492 - 494.
The further documents filed by the appellant
23 As has been noted, some of the appellant's proposed grounds of appeal relied on the alleged effect of documents that were not produced during the trial. The appellant accepted that the documents had been available at the time of the trial. He was represented at the trial but did not contend that his case had been conducted incompetently by his counsel. The appellant's only explanation for why the documents were not produced at the trial was that he did appreciate that they were relevant.
24 The respondent did not object to the appellant referring to and tendering the additional documents in the appeal: the respondent's position was that the documents were, at best, of limited relevance and that they did not establish that the learned magistrate had erred as the appellant contended or that there had been a miscarriage of justice.
Section 409 Criminal Code
25 Section 409(1)(d) of the Criminal Code (WA) creates the offence with which the appellant was charged. It provides that any person who, with intent to defraud, by deceit or any fraudulent means causes a detriment, pecuniary or otherwise, to any person is guilty of a crime. The appellant was charged with causing a detriment to the Association by deceit; that is, he was not alleged in the alternative to have used fraudulent means.
26 Deceit means 'to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false': Graham-Helwig v The State of Western Australia [2005] WASCA 127; (2005) 30 WAR 221 [13] (Wheeler J citing Re London and Globe Finance Corporation Ltd [1903] 1 Ch 728, 732, Buckley J). The expression 'intent to defraud' bears its common law meaning when used in s 409 of the Code: Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215. Paragraphs (a) to (f) of s 409(1) do not alter or enlarge the meaning of 'intent to defraud' at common law. Rather, the concept of 'intent to defraud' confines the scope of the offence created by the subsection so that pars (a) to (f) must be construed and applied by reference to the common law meaning of 'intent to defraud': Bolitho [154] (McLure JA) and [170] (Buss JA).
27 A person will be defrauded if (among other things) they are induced by deception to act or to refrain from acting to their economic loss, detriment or prejudice. Proof that the accused intended to defraud the complainant and that he or she did so by deceit or by employing fraudulent means are separate elements of the offence created by s 409(1) of the Code. Obviously, deceit and fraudulent means involve dishonesty by the accused.
28 In this instance, the appellant was alleged to have acted dishonestly by presenting a blank cheque for signing by the president of the Association without disclosing the purpose for which he intended to use the cheque in circumstances where (on the prosecution's case):
(a) blank cheques were routinely presented to and signed by the president to enable the Association's incidental expenses to be paid;
(b) the treasurer was only empowered to make payments that were authorised by the Association in general meeting or by the executive committee; and
(c) the investment of $10,000 in the FUN trust was not an incidental expense nor was it an investment that had been authorised by the executive committee.
29 Obviously, it was necessary for the prosecution to prove that the appellant intended to defraud the Association at the time that he presented the blank cheque for signing by the president - that is, at the time of the alleged deception. No doubt the appellant would have committed an offence if he had formed an intention to misuse the cheque to obtain funds from the Association sometime after it was presented to and signed by the president. However, that offence would be different to the offence with which the appellant had been charged.
'Ground' 1: the aims of the FUN trust
30 The magistrate stated in his reasons that, as he understood the evidence, 'the trust' had two aims: 'one of education and training aspect to assist members who had joined to understand investing strategies and the other to allow members to acquire units in a unit trust and participate in investments' (5 February 2013, ts 2). That statement did not quite capture the detail of the appellant's evidence (which was not contested on this point). The appellant drew a distinction between the 'FUN Club' and the FUN trust. The aim of the club was to provide a forum for members to learn about investing; the purpose of the trust was to engage in investing (15 January 2013, ts 15 - 16). The two entities were, however, connected in that only club members could acquire units in the trust.
31 In the appeal, the appellant produced a copy of the trust deed for the FUN trust and other documents to establish that the purpose of the trust was solely to engage in investing (section 3 of the file of documents). However, as has been noted, the appellant's evidence concerning the separate objectives of the FUN Club and the FUN trust was not challenged and there is no reason to reject that evidence. It is, therefore, not necessary to have recourse to the documents produced by the appellant for the appeal to establish the proposition for which the appellant contended in his notice of appeal - that the FUN trust was not established to provide education about investing but, rather, its sole purpose was to engage in investing.
32 Mr Khare gave evidence that the executive committee agreed that the Association should become a corporate member of the FUN Club. An agreement was signed so that a limited number of members of the Association could participate in the educational activities of the club and a fee of $450 was paid. According to Mr Khare, that was the only payment to SAM, the FUN Club or the FUN trust that was authorised by the executive committee of the Association.
33 The magistrate accepted Mr Khare's evidence on those matters. He apparently referred to the two 'aims' of 'the trust' to distinguish between the payment of $450 to SAM that was authorised and the disputed payment of $10,000. The substance of his findings would not have been different if he had more accurately stated the effect of the appellant's evidence regarding the different purposes of the FUN Club and the FUN trust. Indeed, to draw the distinction is to merely emphasise that on Mr Khare's evidence, as accepted by the magistrate, the executive committee did not authorise the payment of any money to the FUN trust for investment purposes. Accordingly, the magistrate's mistake in referring to the trust as having two aims was immaterial to the determination of the charge brought against the appellant.
'Ground' 2: the 'status' of the FUN trust
34 The magistrate concluded from the contents of the minutes of a meeting of the FUN trust held on 8 April 2010 that the trust was in a 'formative stage' at that time. That conclusion formed the basis for a further finding that 'it is of significance further that at the time the association agreed to invest in January 2010 the trust itself was in its infancy as reflected by the April 2010 minutes and to suggest that the association was in agreeance to place a major portion of its assets in such a body was implausible and [I] reject it' (5 February 2013, ts 6; the reference to the Association agreeing in January 2010 to invest was presumably to the decision by the executive committee to join the FUN Club).
35 The minutes of the meeting held on 8 April 2010 to which the magistrate referred (exhibit D) recorded that the appellant had advised the meeting that 'the "FUN" rules were still being finalised and that once they are sorted out the bank account for the investments would be opened along with the bank guarantee'. It appears that it was this statement in the minutes that suggested to the magistrate that the trust was still in a formative stage as at April 2010.
36 The appellant contended that the magistrate's finding regarding the status of the FUN trust would have been different if he had been provided with a number of documents concerning the formation of the trust (identified in pars 4 and 5 of his grounds of appeal and forming part of the bundle of documents in the appeal). Those documents indicate that the first meeting of persons associated with the FUN Club and/or FUN trust was held on 2 March 2010. It was agreed at the meeting to 'accept' the trust deed and that the appellant would open bank accounts in the following week.
37 The documents also included an email dated 26 April 2010 attaching a statement of the 'principles by which FUN is organised'. The statement set out the objects of FUN (without distinguishing between the FUN Club and the FUN trust - that is, the objectives referred to both education and investment) and contained a number of 'rules' relating to the operation of the FUN trust.
38 The point of the appellant's contentions relating to the magistrate's findings about the status of the FUN trust appears to have been to emphasise that the trust had been fully constituted by March/April 2010 and was in a position to receive (and had received) subscriptions for units in the trust by the time that the appellant completed the Association's cheque in favour of SAM (8 April 2010). Consistent with those contentions, an email dated 26 April 2010 produced by the appellant in the appeal advised the recipients that the deadline for purchasing units in the FUN trust was 27 April 2010.
39 However, the point of the magistrate's finding was not to suggest that by March/April 2010 the trust had not been fully constituted as a legal entity capable of holding and dealing with property. Rather, the magistrate found, in effect, that it was improbable that the executive committee would agree to invest a substantial portion of the Association's reserves in an investment vehicle that had just been created.
40 The finding that the FUN trust was in its formative stage, in the sense that it had just been established, in March/April 2010 was plainly supported by the document to which the magistrate referred and by the documents produced by the appellant in the appeal. It was also supported by evidence given by Mr Khare about settling the rules of the FUN trust for investing (ts 21).
41 The appellant alleged that the executive committee had agreed to invest in the FUN trust at its meeting held on 11 January 2010. The trust had not been fully constituted at that time. More importantly, there was no evidence that those involved in the formation of the trust had agreed an investment strategy and operating model which would have provided a basis for the Association's executive committee to make an informed decision about investing in the trust. In my view, it was open to the magistrate to find that it was improbable that the committee would have decided prior to April 2010 that the Association should invest a substantial amount of its accumulated surplus in the FUN trust in those circumstances.
'Grounds' 3 and 4: the minutes of the executive committee
42 The minutes of the meetings of the executive committee held between January and March 2010 did not refer to a decision to invest $10,000 in the FUN trust or to any discussion about such an investment. That fact was one of a number of matters relied on by the magistrate to reject the appellant's evidence that a decision had been taken by the executive committee at its January 2010 meeting to invest in the FUN trust.
43 The appellant contended that the minutes of the executive committee were not a reliable record as they did not accurately and completely record all that had occurred during meetings. This accorded with the informal way in which the affairs of the Association were conducted. The appellant also alleged that the minutes of the March 2010 executive committee meeting were fabricated.
44 The appellant made several submissions in support of those contentions. In my view, those submissions did not establish that the magistrate erred by taking into account the absence of any reference to an investment in the FUN trust in the minutes of the meetings of the executive committee. My reasons for that conclusion are as follows.
45 The first submission made by the appellant was that the minutes for the committee's meetings in January to March 2010 (exhibits F, G and H) indicated that matters such as the approval of expenditure and discussions about investments were not recorded. Implicit in that submission was the proposition that there had been discussion about those matters at the meetings but the discussion had not been recorded in the minutes. It is merely circular reasoning to observe in answer to that submission that the magistrate accepted the evidence of the prosecution witnesses that there was no discussion about investing in the FUN trust. However, there was evidence that, as a matter of practice, the minutes would have recorded a decision to invest in the trust if such a decision had been made: see Mr Khare at ts 15 - 16, ts 18 - 129; Mr Patel at ts 41 - 42; Mr Bhudia at ts 49 and Mr Kinariwala at ts 80. That evidence also indicated that, as a matter of practice, the minutes did not record the fact that blank cheques had been signed or that incidental expenses were to be or had been paid.
46 The second submission made by the appellant concerned the minutes of the January 2010 meeting of the executive committee. The minutes recorded the treasurer as reporting '16 K + Distributed document'. The appellant contended that the 'Distributed document' referred to a draft document about the FUN trust and that it was at this meeting that the executive committee agreed to invest in the trust. Although not entirely clear from his proposed grounds of appeal, it appears that the appellant alleged that the executive committee approved an investment in the FUN trust in January 2010 on the understanding that the funds received by the trust would be used to acquire shares in Telstra and that the investment would be 'covered' by a bank guarantee to be obtained by the trust.
47 The appellant's evidence was that the executive committee approved an investment in the FUN trust at its January 2010 meeting and that the cheque was then completed and signed by the president and himself on 31 March 2010 (15 January 2013, ts 15; the appellant did not explain how the cheque came to be dated 8 April 2010). The appellant stated that the committee agreed at its January 2010 meeting that the investment would be made from the proceeds of a term deposit that was shortly due to mature (ts 16). However, he did not give evidence that he distributed a draft document concerning the trust or the particular investment that it was proposed that the trust would make using funds to be subscribed by unit holders. The draft document that the appellant contended was distributed to the executive committee was not produced in evidence (or in the appeal).
48 The third submission made by the appellant was to the effect that his evidence that the executive committee had decided to invest in the FUN trust at its January 2010 meeting was supported by documents filed in the appeal establishing that SAM had arranged for a bank guarantee to be granted in favour of FUN. The suggestion was that the guarantee provided one reason for why the executive committee had decided to invest in the trust.
49 The appellant made that suggestion in his evidence during the trial (15 January 2013, ts 40). However, the suggestion was only made in re-examination (and as best I can ascertain, this was also when the existence of a bank guarantee in favour of the FUN trust was first raised in the trial). Consequently, the allegations that the executive committee had been informed that an investment in the FUN trust would be 'covered' by a bank guarantee and that this had influenced the executive committee to invest in the trust were never put to the witnesses called by the prosecution.
50 The magistrate did not refer to this aspect of the appellant's evidence. However, he was entitled to give it little or no weight in determining whether the executive committee had discussed making an investment in the FUN trust given that the assertions were only made in the course of the appellant's re-examination at the very end of the trial. It should also be noted that the documents filed in the appeal concerning the guarantee were created after January 2010.
51 Finally, the appellant submitted that the minutes of the March 2010 meeting of the executive committee were fabricated. Mr Bhudia stated that the minutes of that meeting were similar to but not the same as his 'standard' format (ts 47). However, he did not go so far in his evidence as to say that he did not prepare the minutes or that they were not genuine (and it must be remembered that he gave evidence almost three years after the March 2010 meeting). Significantly, it was not put to Mr Bhudia that the minutes had been fabricated.
'Ground' 6: the post box and the bank statements
52 There was a conflict in the evidence of the prosecution witnesses about when it was discovered that the Association had paid $10,000 to SAM. Mr Patel stated that he had obtained copies of the Association's banking records in mid-2011 after the appellant had failed to produce the Association's accounts. He discovered that the payment had been made from those records. He confronted Mr Khare about the payments; Mr Khare 'expressed surprise' (ts 37 - 38).
53 Mr Khare gave evidence on this point that was consistent with that given by Mr Patel (ts 10). When pressed about the matter in cross-examination, Mr Khare stated that nobody knew about the payment because the appellant was responsible for opening the Association's post box and, therefore, the appellant had direct access to statements issued by the Association's bank (ts 23).
54 However, Mr Kerai stated that he had learnt about the payment in about May 2010 from Mr Khare (15 January 2013, ts 7). It should be added that Mr Kerai also stated that there had been no discussion about making an investment in the FUN trust at any executive committee meeting prior to May 2010.
55 The magistrate did not make an express finding regarding the conflict in the evidence between Mr Patel and Mr Khare, on the one hand, and Mr Kerai on the other hand. However, he found that the appellant was the 'custodian' of the Association's post box and so had 'control' of statements sent by the Association's bank. Accordingly, his Honour must be taken to have accepted Mr Khare's evidence that the executive committee did not discover in 2010 that the payment had been made and the explanation for why that had been so.
56 The appellant contended that:
(a) there had been two keys to the Association's post box - one key held by the secretary and one by the treasurer;
(b) he had been given a key to the post box when he had been elected treasurer but he seldom accessed the post box because he could obtain details regarding the Association's bank account online;
(c) Mr Khare and Mr Patel had access to the Association's bank records as they were authorised signatories to the account; and
(d) statements issued by the Association's bank were addressed to the secretary who, in practice, received all of the Association's mail.
57 Those contentions merely re-stated the effect of the appellant's evidence and submissions in the trial. They did not demonstrate that the magistrate had erred in finding that the appellant had received the statements issued on the Association's bank account (a finding that supported the further finding that other members of the Association only discovered the payment to SAM in about April 2011).
58 The appellant's evidence was inconsistent with evidence given by some of the prosecution witnesses - evidence that the magistrate was entitled to, and did, accept:
(a) As has been noted, Mr Khare stated that the appellant received the Association's bank statements as he had the key to the post box (ts 22 - 23). He stated further that there was only one key to the post box and the appellant was given the key at a time when the Association did not have a secretary (ts 32 - 33).
(b) Mr Akkasou (who was the secretary of the Association between May 2010 and May 2011) stated that the appellant had the key to the Association's post box and was responsible for collecting the post. Mr Akkasou did not have a key to the post box and was not given a key on becoming secretary (ts 65).
59 In addition, the secretary of the Association prior to Mr Akkasou, Mr Bhudia, was called by the prosecution. However, it was not put to him that he had a key to the post box or that he had received statements concerning the Association's bank account direct from its bank.
60 Finally, it was not put to either Mr Khare or Mr Patel that they had, in 2010, routinely accessed records concerning the Association's bank account. The fact that they were authorised signatories on the account did not mean, of course, that they were supplied with statements by the Association's bank as a matter of course.
'Grounds' 4 to 6: findings about the prosecution's evidence
61 The magistrate accepted evidence adduced by the prosecution that the executive committee had not discussed and approved an investment by the Association in the FUN trust and that the president of the Association had signed a blank cheque at the March 2010 meeting of the executive committee pursuant to a practice that had been adopted for paying incidental expenses. Those findings were based on evidence given by Mr Khare, Mr Bhudia (that an investment in the FUN trust was never discussed at a meeting of the executive committee); Mr Cousins; Mr Kinariwala (that there was a practice of signing blank cheques at committee meetings to enable the Association's expenses to be paid) and Mr Kerai.
62 The appellant made a number of submissions regarding the evidence given by the prosecution's witnesses about those matters:
(a) The appellant noted that Mr Khare had referred to payments for post as an example of the kind of expenses that were paid by cheques that had been signed in blank. The appellant alleged in the appeal that he had personally made payments for the Association's post as treasurer and had been subsequently reimbursed by the Association. However, that was not a matter that was put to Mr Khare and the appellant did not give evidence to that effect at the trial.
(b) Mr Khare stated that the blank cheque that he signed at the March 2010 meeting of the executive committee was left on the table around which the committee had met and was visible to committee members who were present. However, Mr Patel stated that he had not seen a blank cheque signed in the meetings that he attended. This submission by the appellant overlooked Mr Patel's evidence that he was not present at the meeting of the executive committee held on 31 March 2010 (ts 40). Further, the evidence given by Mr Patel to which the appellant referred in his submission was not inconsistent with the evidence given by Mr Khare when read in context.
(c) Mr Bhudia stated that he could not recall any cheques being signed at the meeting of the executive committee held on 31 March 2010 (ts 49). However, in my view the actual effect of Mr Bhudia's evidence was that he could not remember whether or not blank cheques had been signed at the meeting rather than that he denied that the cheques had been signed.
(d) Mr Kinariwala referred to payments made by the Association to caterers for amounts in excess of $1,500 (ts 78). He stated that those payments had been approved by the executive committee with the committee's decisions being recorded in the minutes of its meetings (ts 80). The appellant contended that this evidence was inconsistent with the contents of the minutes that were tendered. However, Mr Kinariwala explained that there had been a considerable delay in the caterers presenting the cheques to which he had referred to in his evidence. The inference was that the payments had been approved by the executive committee at meetings that had been conducted earlier than the meetings for which minutes had been tendered (ts 81).
(e) As has been explained, there was a difference in the prosecution's evidence about when the payment to the FUN trust was discovered. That difference was not referred to by the magistrate. However, it is clear that his Honour accepted the evidence of Mr Khare and Mr Patel and that, generally, he found their evidence to be truthful and reliable. The finding that the payment was not discovered until 2011 was logical given the finding that the executive committee did not approve the payment. There was no reason why the committee would not have taken some step to recover the payment had it discovered that it had been made some time shortly after April 2010.
'Ground' 7: the record of interview
63 The appellant contended that the prosecutor ought to have played a record of interview conducted between himself and police investigators. The appellant did not explain what the interview would have disclosed that might have affected the determination of the charge made against him. Further, the appellant was represented and it would have been open to his counsel to have required the prosecutor to play the record of interview or to have had the video played as part of the appellant's case if that had been thought to be advantageous to his defence.
'Grounds' 8 and 9: findings about the appellant's evidence
64 The appellant contended that the magistrate had erred by rejecting his evidence; he complained, in particular, about the magistrate characterising his evidence as self-serving. However, the appellant did not identify any particular error by the magistrate in rejecting his evidence beyond the matters referred to in the other 'grounds' of appeal. Further, the rejection of the appellant's evidence was, at least in part, a credibility finding. It was, in my view, a finding that was logically reasoned. Four prosecution witnesses gave evidence that the executive committee did not discuss an investment in the FUN trust - too many for a mistaken recollection. There was no rational reason why the prosecution witnesses should have colluded to mislead the court and none was suggested in the trial. There were no contemporaneous documents produced that corroborated the appellant's evidence.
65 As to the final ground of appeal (that the magistrate erred in placing weight on the appellant's role in the formation of the FUN trust), the appellant's involvement in the trust was obviously relevant as it suggested a motive for why he would have sought to divert the Association's funds into the trust.
The appellant's intention
66 The prosecution was required to prove that the appellant intended to defraud the Association at the time that he presented the blank cheque to the president for signing; that is, that he intended at that time to complete the cheque in such a way as to cause the Association to make a payment to the FUN trust knowing that it would have been necessary for the executive committee to approve the payment and that the payment had not, in fact, been approved. The prosecutor did not expressly acknowledge in his opening or closing addresses the requirement to prove the appellant's state of mind.
67 Consequently, there was, perhaps, some ambiguity in what the prosecution alleged was the deceit perpetrated by the appellant. The statement of material facts implied that the appellant committed the offence by falsely representing (perhaps by a combination of conduct and silence as to his intentions) to the president that the blank cheque was to be used to pay an incidental expense consistent with the Association's practice. The prosecutor stated in his opening that (14 January 2013, ts 2 - 3):
[T]he prosecution case is that this organisation was in the habit of the president would sign a couple of blank cheques … and then [give] them to the treasurer … they were to meet some of the incidental expenses of this association … There was the expectation on the part of the president when he's presenting these cheques to the accused that they will be used for that purpose.
68 The prosecutor then alleged that the cheque was subsequently completed by the appellant by making the payee SAM and continued:
So [the] prosecution say that nobody on that committee authorised that to occur, that the trickery … was the accused making out the cheque to this body that wasn't approved by the committee … So that's pretty much the crux of it. We say that [the] cheque was never approved.
69 The prosecutor closed his case by submitting that the appellant had 'seized the opportunity' presented by the Association's procedure of having blank cheques signed by the president and by the fact that a term deposit in the amount of $10,000 matured on 6 April 2010.
70 The prosecutor's opening and closing addresses could have been understood as leaving open the possibility that the appellant had formed the intention to use the cheque to effect a payment to SAM after it had been signed in blank by the president; that is, that the appellant did not deceive the president when he presented the cheque for signing as he had not formed an intention to use the cheque to make an unauthorised payment to SAM. Rather, the appellant had 'seized the opportunity' some time later when he completed the cheque and presented it for payment.
71 The appellant's counsel focussed in his closing on whether the prosecution had proved beyond a reasonable doubt that the cheque signed by the president was a blank cheque. Consequently, his concern was with what had occurred at the March 2010 meeting of the executive committee when the cheque was signed according to both Mr Khare and the appellant. That approach was consistent with the appellant's evidence - according to the appellant, the executive committee had expressly authorised an investment in the FUN trust in January 2010 and the cheque signed by the president in March 2010 had been completed to show the payee and the amount.
72 The magistrate found that the appellant 'in his capacity of treasurer induced the president to sign a blank cheque on the basis it was to be used for club expenses but with the intent to withdraw a sum of $10,000 to place in the trust' (ts 6). His Honour then referred to the decision of Hasluck J in Brown v Deveroux [2008] WASC 299; (2008) 192 A Crim R 190 and concluded (ts 7):
I find that at the time of presenting the blank cheque to the president of the association, the accused represented the cheque was to be used for the payment of expenses. I find that at the time of representing the cheque for signature the accused intended to make the cheque payable to SAM International Pty Ltd trading as FUN Trust in the full knowledge that such payment had not been approved and would not have been approved if it was known for the true purpose.
73 Accordingly, the magistrate found that there had been a false representation made by the appellant to the president of the Association at the time that the blank cheque was signed; that the president was induced by that representation to sign the blank cheque and that the appellant intended to defraud the Association at the time when the president signed the cheque (that is, in March 2010). Those findings reflected the facts alleged in the statement of material facts.
74 Criminal proceedings are adversarial. As McHugh and Hayne JJ observed in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [51]:
A criminal trial under the common law system remains today, as it has been for many centuries, based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and cross-examines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court's role is generally limited to determining what legal rules govern the issues selected by the parties and whether the evidence and contentions of the parties are within those rules.
75 Their Honours earlier observed that the adversarial nature of our legal system relied on an impartial judge as arbiter of the issues and required that the parties determine which issues were put before the court for decision [48]. Those observations were made in the course of rejecting a submission that a court of criminal appeal has a duty to examine the record for errors that were 'manifest on the face of the record' where a convicted person alleged that his or her conviction was 'unsafe or unsatisfactory'.
76 As I have emphasised, the appellant in this case maintained that the executive committee of the Association had authorised an investment in SAM in January 2010 and that the cheque that was signed by the president in March 2010 had been prepared to give effect to that authorisation. The appellant maintained that the cheque had not been presented to the president for signing in a blank form. Consequently, the appellant did not put in issue his intention at the time that he presented the cheque to the president. Rather, the issues to be determined on the appellant's case were whether the executive committee had authorised the payment to SAM and whether the cheque had been presented for signing in blank. The magistrate rejected the appellant's evidence on those matters.
77 It was necessarily implicit in the appellant's evidence that he had formed an intention to apply the cheque for the purpose of causing the Association to invest in the FUN trust at the time that the cheque was presented to the president for signing. It is to be inferred that the prosecutor did not focus on the appellant's state of mind for that reason. In my view, the magistrate is to be taken to have accepted what was implicit in the appellant's evidence and which was not disputed by the prosecution. Accordingly, it was not necessary in those circumstances for the magistrate to further direct himself on the effect of rejecting the appellant's evidence about the central issues to be decided in determining whether the prosecution had proved its case beyond a reasonable doubt.
78 I also do not consider that the trial was conducted in a way that was unfair to the appellant in any material respect despite the possible ambiguity in the prosecutor's opening and closing addresses about the alleged act of deceit and the appellant's state of mind at the relevant time. The magistrate's findings reflected the basis upon which the appellant had chosen to contest the prosecution case.
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