Theophilus v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THEOPHILUS v POLICE
[2011] SASC 135
Judgment of The Honourable Justice Peek
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
Appeal against conviction of four counts of deception contrary to s 139(a) Criminal Law Consolidation Act 1935 (SA) – the appellant, an employee of North East Mitsubishi (“NEM”), arranged for suppliers to bill NEM for goods and services supposedly for NEM but the benefit of which accrued to the appellant – the appellant was charged with 13 counts of deception, being found guilty of counts 3, 9, 10 and 12 and not guilty on the other nine counts.
Whether the misrepresentations caused the relevant benefits to be received by the appellant – whether the Magistrate erred in failing to draw a Jones v Dunkel inference against the prosecution due to its failure to call the accounts clerk at NEM – whether the Magistrate erred in drawing an adverse inference in relation to appellant’s counsel’s supposed failure to comply with the rule in Browne v Dunn – whether Magistrate erred in finding that the appellant told “a lie told out of the consciousness of guilt” – whether the requisite “deception” was established beyond reasonable doubt.
Held: appeal dismissed in relation to counts 9, 10 and 12 but allowed in relation to count 3 – NEM paid out money because an invoice came to be presented to it as a result of actions initiated by the appellant and for no other reason – that NEM should have noticed defects in the documents and should have withheld payment is not relevant – no obligation on prosecution to call accounts clerk and no inference should have been drawn against the prosecution – Magistrate erred in drawing inference of “recent invention” by the accused on the basis that matters asserted by the accused in evidence had not been put to prosecution witnesses – error does not require conviction on count 9 to be set aside in the circumstances – Magistrate’s finding of “consciousness of guilt” may have gone beyond a mere adverse finding as to credibility and wrongly extended to an admission of positive evidence (an implied admission of guilt) – Magistrate would have come to the same result if she had put aside such reasoning – in relation to count 3, the possibility of an innocent ordering by the appellant of the cabinet coupled with a later and separate formation of an intention to steal the cabinet cannot be negated beyond reasonable doubt – conviction on count 3 set aside – not appropriate to order retrial on count 3.
Criminal Law Consolidation Act 1935 (SA) ss 130, 134, 139, 139(a), 353(1); Justices Act 1921 (SA); Magistrates Court Act 1991 (SA) s 42(5), referred to.
R v Jenkins (2002) 6 VR 81; Dyers v The Queen (2002) 210 CLR 285; R v Manunta (1989) 54 SASR 17; MWJ v The Queen (2006) 222 ALR 436; Pope v Ewendt (1977) 17 SASR 45, applied.
R v Laverty [1970] 3 All ER 432, distinguished.
Taylor v Hayes (1990) 53 SASR 282; Gazepis v Police (1997) 70 SASR 121; Pelham v Homes [1928] SASR 105; Musico v Police [2003] SASC 26; Wait v Police [2003] SASC 94, discussed.
Jones v Dunkel (1959) 101 CLR 298; Shik Aun Low v The Queen (1978) 23 ALR 616; Browne v Dunn (1893) 6 R 67 (HL); Nominal Defendant v Clements (1960) 104 CLR 476; O'Leary v Daire (1984) 13 A Crim R 404; Stock v Wierda (Unreported, Supreme Court of South Australia, Debelle J, 21 June 1991, No 2939); Nikolettos v Johnston (1991) 14 MVR 491; Newman v Byrne [1969] SASR 350; Daly v Medwell (1986) 40 SASR 281; Grey v City of Marion [2005] SASC 92; Gomez v Police [2005] SASC 64; R v Grosser (1999) 73 SASR 584; Harris v The Queen (1950) 55 SASR 321; Edwards v The Queen (1993) 178 CLR 193; Zoneff v The Queen (2000) 200 CLR 234; R v Evans (1985) 38 SASR 344; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573, considered.

THEOPHILUS v POLICE
[2011] SASC 135
Magistrates Appeal

PEEK J. This is an appeal against conviction of four counts of deception contrary to s 139(a) Criminal Law Consolidation Act 1935 (SA).
Background
The appellant commenced employment with a Mitsubishi dealership at Hillcrest known as “North East Mitsubishi” (hereafter “NEM”) in 2004. In September 2006 he was promoted to the position of service manager which he retained until he left NEM on Friday 19 September 2008. That position entailed overall responsibility for the running of the service department with three staff and up to 11 mechanics reporting to him; he had considerable purchasing authority and commensurate familiarity with company financial procedures.
In 2008, Mr Papillo, the majority shareholder in NEM, requested his financial controller, Mr Peter White, to carry out an audit of the business. The appellant was subsequently charged with 13 counts of deception on the present Information, being found guilty of counts 3, 9, 10 and 12 and not guilty on the other nine counts. For reasons that will become apparent, I will consider the convictions in two groups being counts 9, 10 and 12 as the first group and count 3 as the sole member of the second group.
In relation to the first group, counts 9, 10 and 12, the prosecution case was that the appellant arranged for NEM suppliers to bill NEM for goods and services supposedly for NEM but the benefit of which accrued to the appellant. The usual procedure for ordering goods and services was to raise a purchase order and then to give the supplier a purchase order number and to arrange delivery; the invoice would then be processed in the accounts area with the invoice being stamped “processed” and payment being made by NEM to the supplier at the end of the following month. The prosecution case was that the appellant intended to, and did, deceive the NEM accounts department into paying the various suppliers’ invoices by arranging for the suppliers to send their invoices to NEM couched in such a way as to appear to refer to genuine orders on behalf of actual clients of NEM and bearing false purchase order numbers. The prosecution case was that the scheme was successful in that the accounts department did pay the suppliers on the basis of the incorrect invoices, doing so without checking the underlying validity of the details cited therein; the appellant was thus left with the benefits supplied to him for which he paid nothing.
Count 3 was rather different in that the subject of the count, a 36 drawer storage cabinet (“the cabinet”), was ordered by the appellant on a legitimate account of NEM with no false details, it being within his authority to commit NEM to such a purchase. The prosecution case was that the appellant at all times intended to appropriate the cabinet to his own use and, on the prosecution case, it was located by police at the appellant’s home during a search by police on 27 May 2009. I will deal in further detail with this count below.
The Information
The Information was as follows (with the counts upon which the appellant was convicted emphasised):
1.On the 3^rd day of October 2007 at HILLCREST in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being an air compressor of the value $657.89.
Section 139(a) of the Criminal Law Consolidation Act, 1935.
This is a basic offence.
This is a minor indictable offence.
2.On the 10^th day of July 2007 at HILLCREST in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being an apprentice tool kit of the value $1,450.00.
…
3.On the 9^th day of July 2008 at HILLCREST in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being key rings and a storage cabinet of the value $153.75.
…
4.On the 14^th day of July 2008 at HILLCREST in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being outdoor knives of the value $210.47.
…
5.On the 11^th day of August 2008 at HILLCREST in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being a bench grinder and stand of the value $209.00.
…
6.On the 2^nd day of September 2008 at HOLDEN HILL in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, that nature of the benefit being tyres and services of the value $954.00.
…
7.On the 9^th day of September 2008 at KLEMZIG in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being a car audio system of the value $860.00.
…
8.On the 12^th day of September 2008 at RICHMOND in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being car badges and lights of the value $584.54.
…
9.On the 15^th day of September 2008 at WINDSOR GARDENS in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being tyres of the value $1,385.21.
…
10.On the 18^th day of September 2008 at KLEMZIG in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being a multi media system of the value $1,500.00.
…
11.On the 19^th day of September 2008 at HOLDEN HILL in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being car repairs of the value $950.00.
…
12.On the 29^th day of September 2008 at HAMPSTEAD GARDENS in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being upholstery of the value $1,300.00.
…
13.On the 12^th day of December 2008 at WINDSOR GARDENS in the said State, deceived North East Mitsubishi and, by doing so dishonestly benefited himself, the nature of the benefit being tyres of the value $1,385.21.
…
The Magistrate’s judgment
The Magistrate, paying close attention to the strengths and weaknesses of the rather complicated evidence as it related to the various counts, gave lengthy reasons and convicted the appellant on counts 3,[1] 9, 10 and 12 and entered verdicts of not guilty in respect of the other counts.
[1] In respect of one only of the two items charged within that count. No objection as to duplicity was taken at trial or on appeal. I have nevertheless considered that matter.
Grounds of appeal
The grounds of appeal appeared as follows:
1.The Learned Magistrate erred by failing to consider whether the misrepresentations were a casual [sic] connection in relation to the benefit derived by the defendant.
2.The Learned Magistrate erred in drawing a consciousness of guilt from the rejection of a part of the defendant’s evidence.
3.The Learned Magistrate erred in failing to draw a Jones v Dunkel inference in relation to the failure of the accounts clerk at North East Mitsubishi to give evidence.
4.The Learned Magistrate erred in drawing an adverse inference in relation to counsel’s failure to comply with the rule in Browne v Dunn.
5.The Learned Magistrate erred in finding any misrepresentation in relation to count 3 where it was not possible to find that the defendant had that intention at the time the offence was committed.
As is obvious, the grounds are rather poorly drafted. Further, they give inadequate indication of the counts to which they respectively refer, no transcript references and no references to the Magistrate’s reasons. It transpires that some of the grounds are said to relate to each of the counts while others relate only to individual counts. I will deal with the respective counts 9, 10, 12 and 3 in that order and deal with the grounds of appeal as they apply to the particular counts.
Count 9 – tyres purchased from Bridgestone on 15 September 2008
The prosecution case on count 9 was that the appellant deceived NEM by obtaining a set of four tyres from Bridgestone (a NEM supplier) and arranging for Bridgestone to invoice NEM as if the tyres were for a NEM customer, the result being that NEM paid the invoice (exhibit P15) and the appellant retained the tyres.[2] There was no dispute that the Repair Order number handwritten on the Bridgestone invoice (P15) corresponded to an actual NEM customer and that that customer had not had any tyres fitted.
[2] It was established that the appellant’s staff account was not debited for the tyres, or in relation to any of the items referred to in the counts of which he was convicted.
Mr Taylor, a mechanic at Bridgestone, gave evidence that the appellant collected the tyres from him, that he saw the appellant sign the original of the relevant invoice for the tyres (P15) and that he gave the appellant a copy of that invoice. Mr Taylor also stated that because the appellant told him that he did not want the tyres fitted and was “dropping them off to a customer”, he helped the appellant put the tyres in his car; he considered this unusual because special machinery was required to fit these then uncommon 18 inch tyres.
Mr Taylor also said that at that time Bridgestone did about two or three jobs a month for NEM and that Bridgestone would fit the tyres. He stated that there were only two occasions when tyres were collected and not fitted (being the two offences alleged in count 9 and count 13) and that both occasions involved the then uncommon 18 inch size tyres that fitted a Mitsubishi Outlander and a few other vehicles. (As is discussed below, the appellant at that time owned a Mitsubishi Outlander.)
Mr White, who was NEM’s financial controller and was familiar with the appellant’s handwriting, gave evidence that the handwriting on P15 “was consistent with” the handwriting of the appellant. The opinion of Ms Bird, the handwriting expert called by the prosecution, was that there was “qualified support” for this handwriting being that of the appellant. It is to be noted that Ms Bird also expressed the opinion that the known sample of the appellant’s handwriting obtained by police lacked fluency in a way that suggested that the appellant was attempting to disguise his handwriting.
The appellant in his evidence agreed that he had collected tyres from Bridgestone on about 15 September 2008 (the date on invoice P15), but asserted that he had collected them not from Mr Taylor but from a different employee of Bridgestone. He disputed that any of the handwriting on P15, including the signature, was his and denied that he had received any paperwork from Mr Taylor. He further said that he brought the tyres back to NEM and Tyrepower collected and fitted them the following day.
One aspect of the prosecution case was that the appellant owned a Mitsubishi Outlander and that the tyres were probably obtained for that vehicle.[3] The appellant gave evidence that he purchased a set of Hankook tyres for the Outlander from City Discount Tyres in late 2008 or early 2009, the inference being that such purchase would have been inconsistent with the fitting of new tyres obtained from Bridgestones as alleged in count 9. He produced an invoice from City Discount Tyres (exhibit D16) purporting to refer to the Hankook tyres, but the document is notable for the fact that the space for “date” is blank although the space for “time” is typed in as “1:50pm”. The appellant was specific and adamant that the invoice D16 was the original supplied to him. I have examined the exhibit D16 on the Court file and, as the Magistrate observed, it does appear to be a photocopy rather than an original document.
[3] I note in the appellant’s favour that Constable Yacoumis gave evidence that the subject Bridgestone tyres were not on the appellant’s vehicle as at 27 May 2009 when police searched the appellant’s address.
The tender of the invoice receipt was understandably opposed by the prosecution but it was received as D16. In the circumstances of the present case, her Honour should have upheld the prosecution objection, marked the document for identification only and required its maker (or authorised representative) to be called by the appellant to establish its provenance. The prosecution later applied to call rebuttal evidence regarding the provenance of D16 and, in particular, to prove that there was in fact a date on the original of the document D16 when it was supplied by City Discount Tyres and therefore it must have been “photocopied out” in D16. Her Honour refused that application. With respect, I consider that that was plainly an incorrect decision and that the prosecution should have been permitted to adduce that evidence. However, both of these unfortunate errors by the Magistrate favoured the appellant and there is no contention by the respondent in relation to them.
Her Honour’s findings in relation to count 9
Her Honour’s findings in relation to the prosecution evidence on count 9 are as follows:
[174]As stated previously, Mr Taylor presented as a very good witness.
[175]His evidence is clear and straight forward. The defendant, who was previously known to him, arrived to collect four specific tyres the subject of an earlier order by the dealership. The order related to tyres for an Outlander but was not common at the relevant time. He said he helped the defendant load those tyres into a Magna (but conceded that it could have been a Mitsubishi 380) very close to the end of the business day. He said that the defendant signed for those goods before he drove off. The defendant, on the other hand, says that that person was not him and neither his signature of any other hand writing belonging to him appears on P15. Mr Rippin was inconsistent in his recognition of the defendant’s signature and Mrs Theophilus said that it did not belong to the defendant. The defence case is that the defendant collected the tyres the subject of P15 from Bridgestone but Mr Taylor was not involved in that process and the tyres were subsequently fitted by Tyrepower on a customer’s vehicle. During the course of cross-examination, the defendant produced an original invoice for “Hankook” tyres which tyres he said were fitted to his wife’s Outlander in late 2008 or early 2009. Bridgestone tyres, of the type described in P15, were not fitted to the Outlander located by the police at the defendant’s house on 27 May 2007.
[176]There is no dispute that the “RO” number hand written on the relevant invoice (P15) does not match the repair order itself in material respects. That evidence was introduced without objection. Although there is a match of the “RO number”, there is no match of goods and services provided. Customer Jack Roberts was not provided with Bridgestone tyres.
[177]The issue is whether the prosecution has proven beyond reasonable doubt that the defendant was dishonest in his dealings with the tyres.
[178]There is no reason for me to doubt the evidence of Mr Taylor. Whether the defendant arrived in a Magna or Mitsubishi 380 is a minor matter. Based on my every day experience of those vehicles, 1 am prepared to accept that they are similar. Mr Taylor was clear as to who collected the tyres, the time of day this occurred and that the defendant signed for them before he departed.

Her Honour then considered the appellant’s evidence and his credibility in a passage to which I will return later. Her Honour then concluded:
[182]I find, beyond reasonable doubt, that the defendant misrepresented to Mr Taylor that he was authorised by the dealership to collect the tyres on behalf of a customer of the dealership. He signed for the tyres and disguised his signature when he did so. I am prepared to conclude from that that he misappropriated the tyres to the detriment of the dealership. Accordingly, I find all the elements of deception proven beyond reasonable doubt.
The application of grounds of appeal 1 and 3 to count 9
Grounds 1 and 3 are to be taken together and apply to each of the counts. They are not addressed to the question of whether the appellant had behaved deceptively but rather to whether “the misrepresentations” that may have been made caused the relevant benefits to be received by him. Although I requested counsel to redraft ground 1, this did not occur; I think that grounds 1 and 3 were intended to run along the following lines:
1.The learned Magistrate erred in convicting the appellant of each of counts 3, 9, 10 and 12 in that it was not proven beyond reasonable doubt that the appellant had caused the respective averred benefits to be received by himself.
3.The learned Magistrate erred in failing to draw a Jones v Dunkel inference against the prosecution in relation to the matter of causation referred to in ground 1 due to its failure to call the accounts clerk at North East Mitsubishi to give evidence.
A summary of the argument under these two grounds is that even if the appellant had made deceptive misrepresentations, there was no evidence as to the effect, if any, of such misrepresentations on the mind of a Ms Thompson who was the accounts clerk at NEM but who was not called to give evidence.
In order to consider the argument, it is first necessary to notice the elements of the offence of deception. It is a statutory offence somewhat similar to the old misdemeanour of obtaining by a false pretence[4] and is created by s 139 Criminal Law Consolidation Act 1935 (SA) which provides:
[4] But with some marked differences.
139—Deception
A person who deceives another and, by doing so—
(a) dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
The word “deception” is defined in s 130 as follows:
deception means a misrepresentation by words or conduct and includes—
(a) a misrepresentation about a past, present or future fact or state of affairs; or
(b) a misrepresentation about the intentions of the person making the misrepresentation or another person; or
(c) a misrepresentation of law;
The appellant submitted that at NEM “mistakes were common and procedures were lax in relation to the authorisation of invoices” and that if the system had worked correctly, the misrepresentations could not have succeeded in causing the benefit to be received by the appellant. The submission continued that the Magistrate should have drawn a Jones v Dunkel[5] inference against the prosecution in that the relevant accounts person at NEM was not called to give evidence and, in any event, the Magistrate should have had a reasonable doubt about whether an essential element of the charge had been proved.
[5] (1959) 101 CLR 298.
The appellant placed reliance on authorities such as R v Laverty[6] where it was held that the fortunate Mr Laverty was to be acquitted because the possibility existed that the victim may have paid his money over for some reason other than the false representation alleged in the prosecution case. However, the present case is of a quite different kind to the class of case exemplified by R v Laverty. There is a long tradition in cases of “obtaining by a false pretence” of contesting the prosecution case that the purchaser (the victim) had decided to purchase the proffered goods because of the false representation of present fact made by the vendor (the accused) on the basis that the purchaser may have made up his mind to buy for quite different reasons, the misrepresentation having no bearing on his decision. The case of R v Laverty was, of course, a good example of a case of that kind. The appellant had been convicted of obtaining a cheque by deception in connection with the sale of a Hillman Imp motor vehicle in the circumstances recounted by Lord Parker CJ:[7]
Although it was contested at the trial, it was conceded in this court that there was a representation by conduct that the car being sold to Mr Bedborough was the original Hillman Imp to which the chassis plate and rear plate which it bore had been assigned. It is conceded that such a representation was made by conduct; it is clear that that was false, and false to the knowledge of the appellant. The sole question was whether this false representation operated on Mr Bedborough’s mind so as to cause him to hand over this cheque.
As sometimes happens, in this case Mr Bedborough did not give the answers which were helpful to the prosecution, and no leading questions could be put. The nearest answer was: ‘I bought this because I thought the appellant was the owner.’ In other words, he was saying: ‘What induced me to part with my money was the representation by conduct that the appellant had a title to sell.’
[6] [1970] 3 All ER 432.
[7] Ibid 433.
His Lordship later concluded:[8]
The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed, and further it seems to the court in the present case that no jury could say that the only inference here was that Mr Bedborough parted with his money by reason of this false representation. Mr Bedborough may well have been of the mind as he stated he was, namely that what operated on his mind was the belief that the appellant was the owner. Provided that the appellant was the owner it may well be that Mr Bedborough did not mind that the car did not bear its original number plates. At any rate as it seems to the court it cannot be said that the only possible inference here is that that fact actuated on Mr Bedborough’s mind.
[8] Ibid 434.
The first and most obvious difference between that type of case and the present is that here each of the benefits particularised in the respective counts is a delivery of goods from a supplier to the appellant, the appellant having persuaded the supplier to bill NEM. The deception of NEM is said to be constituted by the ultimate presentation of the invoice to the NEM accounts department clerk who, being deceived as to the genuineness of the invoice, pays the supplier. In such circumstances it is difficult to imagine any reason for the payment other than the effect of the deceit alleged.
An analogous situation was examined by the Western Australian Court of Criminal Appeal in Shik Aun Low v The Queen[9] where a medical practitioner was alleged to have falsely pretended that he had rendered professional services, thus causing the Health Insurance Commission (Medibank) to pay sums of money to named persons with intent to defraud. Burt CJ stated:[10]
At the applicant’s trial the Crown did not call any evidence from Medibank and in particular it did not upon any of the counts call the clerk who made the payments so as to lead evidence that the false pretence, which in each case was the false account for medical services, did act upon his or her mind so causing the payment to be made.
In my opinion, in the particular circumstances of these cases, that evidence was not necessary. The onus which is upon the Crown in such cases as these and the standard of persuasion required to discharge it remains constant from case to case, but the evidence required to discharge that onus is another matter altogether and it will necessarily vary from case to case depending upon the circumstances. There are, of course, many cases in which such evidence as was suggested ought to have been called would be necessary and of those cases R v Laverty, supra, may stand as a good illustration. In these cases, however, the accounts which for the purposes of this ground can be taken to be false, and false to the knowledge of the applicant, were prepared from information given by the applicant to his servants and they were prepared, inter alia, so that they would be used to support a “medical benefit claim”. Such a claim could not be successfully made and in the formal sense such a claim could not be completed without them and, if true, the claimant was entitled to be paid in accordance with the information which they contained. In my opinion the fact that the false accounts caused the payments to be made could, on the evidence generally, be found by the jury by way of inference and that fact could be so found beyond reasonable doubt. The circumstances of a case may be such and the circumstances of these cases were such that the question raised by the words “did…cause” as used in this indictment can be proved by inference from other facts and without direct evidence: R v Sullivan (1945) 30 Cr App R 132 and Etim v Hatfield [1975] Crim LR 234, were such cases.
[9] (1978) 23 ALR 616.
[10] Ibid 617-618.
Similarly, Brinsden J (with whom Lavan SPJ concurred) stated:[11]
Now it is true in Grail’s case that the conviction was quashed because the prosecution failed to prove that the prosecutor had parted with his money by reason of the false pretence, the prosecutor not having been asked the question “why did you part with your money?”, while in Sullivan’s case it was held that although the prosecution is bound on a charge of obtaining property on false pretences to prove that the alleged false pretence was the operative inducement, proof need not in every case be afforded by the direct evidence of a witness to this effect, if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement. But it must be remembered that what the prosecution sets out to prove to the requisite standard under s 29A(2) of the Crimes Act, is that the accused with intent to defraud caused by means of a false pretence any money to be paid by the Commonwealth to another. Both in Grail’s case and Sullivan’s case the victim was an individual and hence it was necessary to prove that by reason of the false pretence he had been caused to part with his money. I would not have thought that it must always be the case when the victim is not an individual but a government department, statutory authority or some other such organization, that it is necessary in the case of a false pretence to prove that the false pretence caused the authority to part with its money, by calling direct evidence in the form of the individual who, on behalf of the authority acted upon the false pretence. As long as the evidence adduced by the Crown proves to the requisite standard the causation, it would not, I think matter whether it was direct evidence or evidence from which the only reasonable inference to be drawn is that the pretence caused the organization to part with its money.
[11] Ibid 625-626.
Finally, I refer to R v Jenkins[12] where Charles JA (with whom Ormiston JA agreed on this point) drew together relevant authorities on the point and concluded:[13]
[83]This is, I think, a case, like Sullivan, in which the only inference which could reasonably be drawn was that OST (and its investment division) would not have allowed these loans to proceed, had the true position been known. In other words, for each loan the alleged false pretence was the only reason that could reasonably be suggested as having been the operative inducement. For like reasons I agree with O’Bryan AJA that the trial judge’s direction to the jury on this issue was adequate.
[12] (2002) 6 VR 81.
[13] Ibid 114.
Similarly here, it is the prosecution case that what may be referred to as “the accounts department” paid out money because an invoice came to be presented to it as a result of actions initiated by the appellant and for no other reason. Of course, it may be that the accounts department should have noticed defects in the documents and should have withheld payment but that is none to the point. The relevant accounts were paid and, provided the other elements were duly proven against the appellant, such payment was caused by the “deceit” of the appellant.
As to the allied ground 3, it is to be noted that the High Court has indicated in Dyers v The Queen[14] that a Jones v Dunkel inference against the prosecution should not usually be drawn unless the prosecution had failed to discharge its obligation to call all material witnesses in a criminal prosecution. Thus Gaudron and Hayne JJ there stated:[15]
[6]Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
…
[17]As was held in R v Apostilides [(1984) 154 CLR 563 at 575], it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. …
(Citation appearing in footnote inserted)
[14] (2002) 210 CLR 285.
[15] Ibid 291; 295.
In the present case, counsel for the appellant at trial does not appear to have raised the matter of the non-calling of Ms Thompson with the Magistrate with the result that her Honour did not take up that matter with the prosecutor. However, quite irrespective of whether there was or was not any such discussion, in my view there was clearly no such obligation on the prosecution in the particular circumstances of the present case (for the reasons stated above) and therefore no inference should have been drawn against the prosecution.
For the above reasons, I find that grounds of appeal 1 and 3 are not made out in relation to count 9.
The application of ground of appeal 4 to count 9
The only further ground that applies to count 9 is ground 4 which complains that her Honour “erred in drawing an adverse inference in relation to counsel’s failure to comply with the rule in Browne v Dunn”.[16]
[16] (1893) 6 R 67 (HL). The grounds of appeal are reproduced in full above.
The circumstances are that, in examination-in-chief, the appellant stated that when a customer specifically requested Bridgestone tyres, he would source them from Bridgestone but would then get Tyrepower to fit them. He gave as his reason that the fitting of tyres by Bridgestone was unsatisfactory in that it was expensive, it damaged rims and was unreliable, whereas Tyrepower was reliable and cheaper. In cross-examination, it was forcefully suggested to the appellant that that procedure involved inefficient “double handling”, was unlikely to have been adopted and that the appellant was lying when he asserted that it had been adopted. In this context, the appellant expanded upon (consistently with his evidence-in-chief) the ways in which Bridgestone’s workmanship was unsatisfactory and that, despite the double handling, he therefore preferred to do it that way; he gave further examples of bad workmanship in cross-examination as being scratching alloy wheels, leaving wheels unaligned, not fitting tyres properly, rounding off wheel nuts, not resetting steering angle sensors and overcharging.
Her Honour noted that certain prosecution witnesses had not been cross-examined on those matters by counsel appearing at trial for the appellant and the relevant passage of her reasons is as follows:
[179]The defendant’s evidence, on the other hand, was less than satisfactory.
[180] I refer to the following matters:
(1) The defendant’s explanation of taking possession of the tyres for fitting by Tyrepower was not convincing. This involved double handling of the tyres. The explanation of poor workmanship at Bridgestone was not put to Mr Taylor in cross-examination and is suggestive of recent invention. It is also noteworthy, that Mr Bewley, the owner of Tyrepower, was not asked any questions in cross-examination as to his fitting of the tyres in question.
(Emphasis added)
Two things about this passage appear to be clear. First, her Honour appears to suggest that the rule in Browne v Dunn[17] was engaged by a failure to cross-examine witnesses in the present case and that the weight to be accorded to the evidence of the appellant was adversely affected by that supposed failure. Second, her Honour was not suggesting (and it would have been wrong to do so) that the appellant was thereby precluded from giving the evidence or precluded from relying upon it in final submissions.
[17] (1893) 6 R 67 (HL).
However, what is not clear is what her Honour precisely meant by the term “recent invention” in this context. In certain circumstances, it may well be legitimate to suggest that a failure to cross-examine prosecution witnesses may affect the respective weight to be given to conflicting prosecution and defence evidence in light of the fact that the prosecution witnesses had been given no opportunity to respond to subsequent defence claims or criticisms of their evidence. However, the term “recent invention” appears to suggest rather more than that approach and is of some concern.
The term “recent invention” is usually encountered in the context of the doctrine that an assertion (express or implied) by a cross-examiner that a witness has “recently invented” certain evidence may in certain circumstances be rebutted by adducing evidence of a prior consistent statement made by the witness prior to the time to which the assertion of recent invention must logically relate.[18] The previous statement sought to be tendered to dispel the imputation of recent invention “must be made in such circumstances that it logically does so”.[19]
[18] See generally the decision of the High Court in Nominal Defendant v Clements (1960) 104 CLR 476.
[19] Nominal Defendant v Clements (1960) 104 CLR 476, 495 (Windeyer J).
But clearly, that is not the context in which the term was used in the present case. Of course, insofar as her Honour suggests that an explanation may be an “invention”, her Honour suggests no more than that the explanation may be untrue. However, her Honour appears to be reasoning that a failure to comply with the rule in Browne v Dunn may give rise to an inference that the appellant “recently” invented the explanation which, as a matter of logic, can only mean that the invention took place after the failure to cross-examine had occurred. This must be so because the only matter advanced to suggest that the invention is “recent” is the absence of certain cross-examination and the only way that such absence could logically give rise to an inference of “recency” is if one assumes that the reason for its absence is that the appellant’s story did not exist in the form of instructions in counsel’s brief at the time when that cross-examination should have occurred.

Of course, such a scenario of true recent invention may occur; an accused person under cross-examination who perceives his position to be desperate may begin to assert matters which, if true, should have been put to the relevant prosecution witnesses in cross-examination but had not been. However, the process by which one can start with the bare proposition that matters asserted by the accused in evidence in a criminal trial had not been put to the relevant prosecution witnesses and thereby supposedly safely infer a “recent invention” by the accused person, is fraught with danger. Thus, the drawing of that inference in the present circumstances would depend upon (at the least) the following steps or assumptions:
·that if counsel had had in his brief instructions which coincided with the evidence that the appellant eventually gave (being the evidence asserted to be a recent invention), the rule in Browne v Dunn would have applied so as to require counsel to put those instructions (“the relevant instructions”) in the cross-examination of a particular witness(es), and
·that counsel would necessarily have independently understood and interpreted the application of the rule in Browne v Dunn in the way suggested above, and
·that counsel had an invariable practice of cross-examining in accordance with the rule and would have wished to adhere to the rule in the present case, and
·that if counsel had had the relevant instructions in his brief, he would have read and remembered them and would have perceived that the circumstances activated the rule and required him to put the relevant instructions in cross-examination to the particular witness(es), and
·that, the only explanation for the omission of counsel to omit such cross-examination was because the relevant instructions did not appear in his brief, and
·that the only explanation for the omission of the relevant instructions from counsel’s brief was because the appellant had never mentioned them to his solicitors, and
·that the only explanation for the appellant never mentioning the recent invention to his solicitors was that he had not by that time “invented” them. However this last inference could be drawn only if:
-the appellant’s solicitors adhered to a practice whereby comprehensive client proofing sessions would invariably be conducted which were so thorough that they would necessarily have resulted in the appellant giving instructions as to the matters he eventually referred to in cross-examination if they had at that time truly been his instructions, and
-if the relevant instructions had been mentioned by the appellant to his solicitors, they would necessarily have been carefully recorded, and
-whoever later prepared the brief for counsel would necessarily have included the relevant instructions in the brief delivered to counsel.
As I say, in some cases it may be possible to draw such an inference, but common experience demonstrates that such a chain is highly likely to give way at any number of places! Thus, in R v Manunta[20] King CJ (with whom Legoe and Bollen JJ concurred) sounded the following cautionary note:[21]
I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.
[20] (1989) 54 SASR 17.
[21] Ibid 23-24
More recently, the decision of the High Court in MWJ v The Queen[22] has confirmed and emphasised the extreme caution that is required both in formulating the so-called rule in Browne v Dunn and in applying it, particularly in a criminal trial. Thus Gummow, Kirby and Callinan JJ stated:[23]
[40]Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.
[41]The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant’s objection to the evidence intended to be adduced from the complainant’s mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.
(Emphasis added)
[22] (2006) 222 ALR 436.
[23] Ibid 448.
The factual situation in MWJ v The Queen[24] is somewhat different to the present case but the seriousness of the cautionary guidance there given should not be minimised and does, in my view, apply here. Further, the various possibilities instanced by King CJ in R v Manunta[25] (such as counsel misunderstanding instructions, inadequate statements being obtained from witnesses including the accused person himself, forensic pressures causing looseness or inexactitude in the framing of questions, the matter being simply overlooked, etc) were all potentially present here in abundance. To those examples may be added the real possibility in the present case of a failure by the accused or counsel, or both, to foresee the line of cross-examination about “double handling” that was in fact adopted and hence not to consider whether it was necessary to cross-examine prosecution witnesses upon it. Further, her Honour in the present case does not allude to the relevant fact that the present was not the classic case of a hapless accused under pressure in cross-examination coming up with an explanation for the very first time; as noted above, the present appellant had in fact mentioned this matter in examination-in-chief, his cross-examination not being inconsistent therewith.
[24] (2006) 222 ALR 436.
[25] (1989) 54 SASR 17.
In short, the present appellant submits that it is a “long bow” to draw the inference that the appellant was making up these matters in the witness box for the first time as suggested by the prosecution and as seems to be contemplated by her Honour’s words “recent invention”. Further, the appellant submits, her Honour did not direct herself as to the high degree of caution required in drawing such an inference and did not refer to any authorities on the matter.
The respondent emphasises that her Honour’s words were prefaced by the words “is suggestive of” and submits that it is therefore not demonstrated that her Honour did in fact adopt the process of reasoning suggested by the appellant. However, that submission does not address the fact that her Honour was here giving examples of why she rejected the evidence of the appellant and the giving of this particular example only makes logical sense if her Honour in fact considered that there was some element of recent invention in his evidence; if her Honour did not so consider, there was simply no point in alluding to the matter at all.
I find that the appellant is broadly correct in his complaint. This was not a case where an inference of true recent invention could be safely drawn. If any of the cross-examination suggested by her Honour was in fact required[26] by the rule in Browne v Dunn, it was here impossible to rule out the type of innocent causes referred to above that might explain its absence and it was therefore unsafe to draw the inference of “recent invention” on the basis of such omission. Further, if her Honour were considering whether to draw such an inference, it was necessary for her to at least give herself emphatic cautionary directions of the type referred to in decisions such as R v Manunta[27] and MWJ v The Queen.[28] In my view, if the prosecutor in the present case considered that the rule in Browne v Dunn had been broken and that the prosecution witnesses had been treated unfairly, his appropriate course was that mandated by the High Court in MWJ v The Queen:[29] to apply to recall the relevant prosecution witnesses and invite defence counsel appropriately to cross-examine. However, the prosecutor never made such an application and it is unnecessary for me to decide whether which, if any, of the prosecution witnesses should have been permitted to be recalled if such application had been made.
[26] In my view, the rule did not require counsel to cross-examine Mr Bewley (the owner of Tyrepower) since there was no adverse imputation later to be made against him or his company and therefore no reason of fairness to afford him an opportunity to comment on what was to be said, simply that Tyrepower was retained to fit tyres purchased elsewhere because of their high quality workmanship. In fairness to her Honour, the composition of the relevant paragraph of her judgment may suggest an intended distinction between the evidence of Mr Bewley and that of Mr Taylor, against whose company (Bridgestones) an imputation of bad workmanship was to be made. However, her Honour does say that in relation to the evidence of Mr Bewley, the absence of cross-examination is “notable” but it is unclear why that should be so. It is true that counsel might have attempted to get some support for the appellant’s version by speculative cross-examination of Mr Bewley, but the absence of such an attempt may be due to a number of possibilities including that the possibility did not occur to counsel or, if it did, it was thought too speculative and not worth pursuing on a risks/rewards assessment. Such matters are the province of counsel and do not constitute a safe basis for later drawing an inference against the client.
[27] (1989) 54 SASR 17.
[28] (2006) 222 ALR 436.
[29] Ibid 448.
The consequences of error being established in the present circumstances
However, while I consider that her Honour did err, I am nevertheless of the view that, in the unusual circumstances of this case, this error does not require the conviction on count 9 to be set aside. My reasons follow.
In Taylor v Hayes[30] Perry J considered the general approach to an appeal under the then Justices Act 1921 (SA) in the context of a complaint that the Magistrate had failed to draw a Jones v Dunkel inference where a prosecutor had refused to call police officers who were plainly material witnesses to the disputed event the subject of the charge.[31] His Honour came to the view that the Magistrate had erred and then stated:[32]
For the reasons which I have given, the observations made by the learned magistrate as to why he was not prepared to draw such an inference disclose an error of approach.
Upon my reassessment of the evidence, and even according due weight to the learned magistrate’s findings as to credit, but allowing for the failure by the prosecutor to call any other police witnesses, it could not be said that the complainant’s case was so strong as to exclude a reasonable doubt as to the guilt of the appellant.
In those circumstances, the appeal must be allowed.
Having reached a view of my own on the evidence, it is inappropriate to direct a rehearing.
[30] (1990) 53 SASR 282.
[31] Although decided long before the decision of the High Court in Dyers v The Queen (2002) 210 CLR 285, Perry J’s decision was entirely consistent with Dyers since it had been squarely raised at trial that it would be submitted that a Jones v Dunkel inference should be drawn against the prosecution if it refused to call such material witnesses. As to that matter, his Honour stated (at 287):
It appears that the police prosecutor, Sergeant Clarke, was labouring under a misapprehension as to the effect of the failure to call other police witnesses. In the submissions which he made before the learned magistrate, he attempted to deal with the criticism which had been voiced by counsel for the appellant as to his failure to call other police witnesses by referring to the authorities, such as Richardson v The Queen (1974) 131 CLR 116 and Whitehorn v The Queen (1983) 152 CLR 657 and R v Apostilides (1984) 154 CLR 563, which make it clear that a prosecutor is not bound to call a particular witness, and can not be directed by the court to call a witness. In his submissions Sergeant Clarke moved from a statement of that proposition to the comment that it is ‘for the prosecution to decide who we will call. So I say there can be no criticism for failure to call the other officers, in particular, Godfrey …’. But that submission confuses two principles. The fact that the prosecution cannot be compelled to call any particular witness does not render the prosecution immune from an adverse inference being drawn in an appropriate case by reason of the failure to call a witness or witnesses.
[32] Taylor v Hayes (1990) 53 SASR 282, 288.
It can be seen that Perry J here refers to three possible alternative consequences that may follow a conclusion that a Magistrate had erred. The first is that the appeal will be allowed and the complaint dismissed without order for a retrial if the Court reaches a view of its own that the evidence does not support proof beyond reasonable doubt. The second is that the appeal will be allowed and the complaint dismissed without order for a retrial if the Court cannot reach a view of its own that the evidence does not support proof beyond reasonable doubt but considers that a preponderance of discretionary considerations favours dismissal of the complaint without retrial. The third is that the appeal will be allowed but there will be an order for a retrial if the Court cannot reach a view of its own that the evidence does not support proof beyond reasonable doubt and considers that a preponderance of discretionary considerations favours a retrial.
A question that Perry J did not have to explore in Taylor v Hayes[33] was as to whether there was a fourth alternative consequence – that although a ground of appeal may be made out, the appeal might nevertheless be dismissed.
[33] (1990) 53 SASR 282.
In the earlier decision of Pope v Ewendt,[34] Bray CJ had considered that question. His Honour there stated that an appeal involving the admission of inadmissible evidence could be dismissed only if that evidence could have had no effect upon the result. His Honour emphasised, as had Napier CJ in the earlier decision in Pelham v Homes,[35] that “this course cannot be adopted unless it is clear that the same result must or would have been achieved if the wrongly admitted evidence had been excluded”.[36]
[34] (1977) 17 SASR 45.
[35] [1928] SASR 105.
[36] Pope v Ewendt (1977) 17 SASR 45, 50.
The later cases of O’Leary v Daire[37] (White J), Stock v Wierda[38] (Debelle J), Nikolettos v Johnston[39] (Legoe J), and Musico v Police[40] (Mullighan J) are all examples of former Justices of the Court adopting the approach of Bray CJ in Pope v Ewendt (and indeed that of Napier CJ in the earlier decision in Pelham v Homes[41]) and determining, with appropriate caution, that although a ground of appeal was otherwise made out, the charge had been so clearly proven that it must clearly have been held by the Magistrate to have been proven irrespective of the error which was found to have occurred.
[37] (1984) 13 A Crim R 404, 416.
[38] (Unreported, Supreme Court of South Australia, Debelle J, 21 June 1991, No 2939).
[39] (1991) 14 MVR 491.
[40] [2003] SASC 26.
In Gazepis v Police,[42] it seems to me that Doyle CJ (with whom Lander and Bleby JJ concurred) in effect adopted much the same approach even though using the slightly different language of miscarriage of justice.[43] His Honour referred to s 42(5) Magistrates Court Act 1991 (SA) and stated:[44]
Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, for example, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O’Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
[42] (1997) 70 SASR 121.
[43] His Honour cites the two decisions of Newman v Byrne [1969] SASR 350 and O’Leary v Daire (1984) 13 A Crim R 404 in support of the use of that phrase in the context of a dismissal of a Magistrates appeal. I note that Newman v Byrne was a decision by Mitchell J in the context of a prosecution appeal against an acquittal by a Magistrate where the phrase “miscarriage of justice” may well have been thought appropriate as emphasising the high degree of error and injustice to the prosecution that would have been thought necessary to justify an appeal against an acquittal at a time when the stance against such a form of double jeopardy was much stronger than it is now. In the second decision cited, that of O’Leary v Daire, White J was considering a defence appeal against conviction but, as I read his judgment, his Honour counselled against the importation of a “miscarriage of justice” test from the Criminal Law Consolidation Act 1935 (SA), instead identifying the statement of Bray CJ in Pope v Ewendt as being the correct approach. Thus his Honour stated at 416:
During argument, counsel referred repeatedly to miscarriage of justice and no miscarriage of justice. The Justices Act 1921 (SA) does not contain a provision equivalent to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) which empowers the court to dismiss an appeal (even if the appellant establishes all or some of his grounds of appeal) provided there has been no miscarriage of justice. Perhaps some analogous power of dismissal exists. An appeal may be dismissed if the errors at the hearing could have had no effect on the result: Pope v Ewendt (1977) 17 SASR 45 at 50 per Bray CJ. I hold that the errors complained of in the grounds of appeal (in so far as they were made out) could have had no bearing on the result, since the three convictions were founded upon evidence, which the magistrate believed, more than sufficient to justify them and the findings necessary to support them.
I note that White J took the same approach in the later decision in Daly v Medwell (1986) 40 SASR
281, 292.
[44] Gazepis v Police (1997) 70 SASR 121, 129.

However, with respect, it is my view that the previous authorities, including the decisions of two previous Chief Justices in Pelham v Homes[45] and Pope v Ewendt[46] respectively, do establish that it is incumbent upon the respondent to demonstrate that, in the language of Gazepis, no miscarriage of justice has occurred. I note that in cases subsequent to Gazepis, and in reliance upon that decision, the language of “miscarriage of justice” has been increasingly used. However, it is important to note that it has been emphasised that it is for the respondent to establish that no miscarriage of justice has occurred. This was the approach taken by Mullighan J in Musico.[47] I also note that in Wait v Police,[48] Besanko J found that the Magistrate had erred in placing weight on the defendant’s “failure” to call witnesses in his defence. His Honour then stated:
[49]On the appeal under s 42 I must review the evidence and reach my own conclusions giving due weight to the fact that the Magistrate has seen and heard the witnesses. The fact that there is an error by the Court below does not mean that I am required or permitted to allow the appeal if I am satisfied that there has been no miscarriage of justice (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129). I am satisfied that there has been no miscarriage of justice in this case. The Magistrate was entitled to accept the evidence of Ms Goodenough and to act on it. It established the guilt of the accused.
[45] [1928] SASR 105.
[46] (1977) 17 SASR 45.
[47] [2003] SASC 26.
[48] [2003] SASC 94. His Honour took the same approach in the later decisions in Grey v City Of Marion [2005] SASC 92 and Gomez v Police [2005] SASC 64.
I propose to take the approach adumbrated by Bray CJ in Pope v Ewendt.[49] Adopting that approach, I have come to the view that the combination of strong circumstantial and strong direct evidence produced a prosecution case on count 9 that was overwhelming. As to the circumstantial evidence, this could be affected very little by the mistake to which I have referred. As to the direct evidence, the Magistrate was entitled to accept the prosecution evidence, particularly the evidence of Mr Taylor, as correct beyond reasonable doubt notwithstanding the appellant’s contrary evidence. Here, it is true, her Honour’s comments as to recent invention tend to impinge upon the credibility of the appellant but, in the particular circumstances of the present case, I am sure that her Honour would, on the basis of the combined circumstantial and direct evidence, have come to the same decision quite irrespective of that particular line of reasoning.[50]
[49] (1977) 17 SASR 45.
[50] I note in passing that in Gomez v Police [2005] SASC 64, Besanko J came to the same conclusion where the Magistrate had erred in relation to the application of Browne v Dunn reasoning, being of the view that he had decided the case by reference to whether he was prepared to accept the evidence of the complainant beyond reasonable doubt without necessary resort to such reasoning. Thus his Honour stated (at [23]):
The sixth ground of appeal is that the Magistrate erred in saying that it was not put to L that the appellant did not touch her breast under her clothing for a short time. It was certainly put to L that the appellant did not touch or try to undo her clothing and I think it was effectively put to her that the incident involving the touching of her breast did not occur. I think the Magistrate did err but I do not think that it may have given rise to a risk of a miscarriage of justice (Gazepis v Police(1997) 70 SASR 121 per Doyle CJ at 129; Wait v Police[2003] SASC 94 per Besanko J at [49]). Reading his reasons as a whole I think that it is clear that he has decided the case by reference to whether he should accept L’s evidence beyond reasonable doubt and not by reference to what was and was not put to her. I reject the sixth ground of appeal.
Accordingly, I reject ground 4 of appeal and affirm the conviction on count 9 of the Information.
Counts 10 and 12 – multimedia system and upholstery
The prosecution case on count 10 was that the appellant had sound equipment installed in his Holden panel van by a supplier KGB Car Audio Services Pty Ltd (“KGB”) and, by writing a NEM Repair Order corresponding to a NEM customer onto KGB’s invoice (P16), had deceived NEM into paying the invoice. The prosecution case on count 12 was that the appellant had work done to the upholstery of his Holden panel van and, by writing a NEM Repair Order corresponding to a NEM customer, onto the invoice from Spencer Motor Trimmers (P18), had deceived NEM into paying the invoice. The work referred to in these two counts was done at about the same time on the same panel van and it is convenient to consider the evidence in relation to these two counts in conjunction with each other. The following points may be noted.
Constable Yacoumis gave evidence that the appellant’s panel van was seen at his home address on 27 May 2009 and contained a CD player and a roof mounted television screen.
The respective invoices P16 (count 10) and P18 (count 12) each had NEM Repair Orders written on them corresponding to genuine customers of NEM who had not had that invoiced work done to their cars. Thus Mr White gave evidence that P16 (in relation to count 10), being the invoice of KGB dated 18 September 2008 for a “multimedia system”, had the number “138 RO 532154” handwritten and circled in the middle of the page. He stated that this Repair Order number was genuine in that it matched work for a NEM customer but did not match the work actually carried out for that customer; the work described on the genuine order in fact related to a 60,000 km service and sundry items on that customer’s vehicle and not the supply and fit of a multimedia sound system into the appellant’s van. He also gave evidence that P18 (in relation to count 12), being the invoice of Spencer Motor Trimmers dated 29 September 2008 for the re-trim of Magna seats, similarly had the number “138 RO 532213” appearing near the middle of the page. He stated that this Repair Order number was genuine in that it related to an actual NEM customer (a Ms Addison) but again related to quite different work (a service and door check) and a different vehicle (a Mirage model).
The appellant said that the handwriting “138 R0532154” on P16 was not his and appeared to be that of Mr Dave Bawden, a worker at NEM. He said that a “multimedia system” would normally refer to such things as a touch screen, reverse camera, satellite navigation, CD player, television and Bluetooth, and that such a system was not fitted in his panel van. He stated that the total cost recorded on P16 did not represent the amount he paid for the unit that he did have installed.
Mr White gave further evidence that while the defendant left the employ of the dealership on Friday 19 September 2008 which was, of course, prior to both the repair work being carried out on Ms Addison’s vehicle (on Monday, 22 September 2008) and the date when the invoice from Spencer Motor Trimmers P18 was written (on Monday, 29 September 2008), he nevertheless believed that the handwriting on P18 did belong to the defendant. He stated that this was possible since the appellant had been in a position to have noted the Repair Order number when Ms Addison had made her booking during the week prior to the date when the work was carried out, namely, Monday 22 September 2008, and that the appellant could have been later given the invoice dated 29 September 2008 by Spencer Motor Trimmers at which time he could have written the false Repair Order number onto it and deposited it in the administration section probably via the designated ‘pigeon hole’ downstairs. Mr White stated that in such circumstances the invoice would then have been processed and paid, as it indeed was paid.
The opinion of Ms Bird (the handwriting expert) was that there was qualified support for the conclusion that each Repair Order was handwritten by the appellant.
The appellant denied that the handwriting was his and stated that the work referred to in invoice P18 did not relate to work on his panel van. He denied that he told Mr Spencer to write “Retrim Magna front and rear seats Mitsubishi Magna” on the invoice and stated that the Repair Order number on the second page would have been generated on the day stated on the repair order, namely, 22 September 2008 which was three days after he left NEM. In cross-examination he stated that he could “not recall” that a Repair Order number could be generated on a date preceding the scheduled work.
Both Mr Stephens (of KGB) and Mr Spencer (of Spencer Motor Trimmers) gave evidence that the appellant had said to them that the respective invoices were to be sent to NEM on the basis that he had agreed with NEM that “payment would come off his holiday pay”. However, they also both gave evidence that the appellant had asked them to falsely record the work done in their respective invoices as relating to a Mitsubishi Magna rather than the panel van and also to omit to record the registration number contrary to the usual practice which was to record it. The obvious implication was that the appellant wished to avoid NEM staff noticing that the claimed invoiced work related to a Holden panel van which might be associated with the appellant himself, but which, in any event, might appear discordant in circumstances where it was much more usual to find legitimate charges in relation to Mitsubishi vehicles. The defendant denied this evidence.
Mr Spencer gave evidence that upon completion of the job he telephoned the appellant who gave him an order number from the dealership and requested him to describe the work on the invoice as a “re-trim Magna, front and rear seats”. Mr Spencer could not recall whether he gave the invoice (P18) to the defendant or sent it to the dealership. In cross-examination, Mr Spencer said that he queried the order number given to him by the defendant but the defendant said “It’s all right, Carmine knows”. In cross-examination, Mr Spencer agreed that other work had been carried out on the panel van, namely, the installation of a stereo by KGB. He said that all work was finished about the same time and that the invoice P18 bearing the date 29 September 2008 was prepared either on the day the work was completed or within two days after or before the job.
Mr Spencer further stated that many months later, the appellant telephoned him and requested that he “say nothing” about the invoice if the dealership queried it. The appellant in his evidence denied any such statement; he said that there was a telephone conversation in about January 2009 but it was about sourcing some rare houndstooth cloth.
The defence case was that the appellant did not dispute that he had work done by both KGB and Spencer Motor Trimmers on his Holden panel van in about the month of September 2008 and that he had told the witnesses Mr Stephens (KGB) and Mr Spencer (Spencer Motor Trimmers) that this work should be invoiced to NEM on the basis that it was to be paid out of his outstanding holiday pay. He said that he had spoken extensively with Mr White about getting the work done on his car and when he resigned from NEM they agreed that this cost would come out of his holiday pay with any excess amount being put on his staff account.
However, Mr White had flatly denied any such conversation when cross-examined and said that as payroll manager he had never seen such deductions from holiday pay. He also gave evidence that the appellant’s staff account was cleared on the day he resigned.
The appellant further stated that he collected the panel van on 17 September and not 29 September. He did not receive an invoice stating that “normally they post them or fax them straight through” to the dealership.
Her Honour’s findings in relation to counts 10 and 12
While it is clear that each of Mr Stephens and Mr Spencer must have known that the appellant was procuring them to actively mislead NEM, and each admitted falsifying invoices, the evidence did not suggest that they had anything to gain by doing so other than to oblige the appellant and to gain his favour. Their evidence had to be appropriately scrutinised but it was open to the Magistrate to believe it. Indeed, the fact that each suggested much the same strategy being implemented by the appellant and that each had documentation supporting that suggestion, was capable of amounting to strong evidence of guilt of the appellant on both counts 10 and 12.
The Magistrate approached the evidence of Mr Stephens and Mr Spencer with appropriate caution. She accepted it both as to the circumstances surrounding the falsification of the invoices and as to the fact that the invoices referred to work done on the appellant’s panel van. Her Honour’s findings in relation to counts 10 and 12 (with the passage complained of in ground 2 of appeal in emphasis) were as follows:
[183]Mr Mr Stephens was firm in his evidence that P16 relates to work by KGB on the defendant’s panel van and that the defendant asked him to falsify the vehicle make. There is no dispute that the RO number endorsed on the invoice does not match the repair order. The make of vehicle is the same but the services provided were in —house and did not include the installation of an audio system.
[184]The defendant denied that P16 had anything to do with work on the panel van in September 2008. He denied that he endorsed the invoice.
[185]Mr Mr Stephens’ evidence was less than satisfactory. He was vague about the work carried out on the van and was unconvincing as to why he falsified a material detail on the invoice. His presentation was reflective of a man who was very coy about his business practices and was trying very hard not to implicate the defendant.
[186] Nevertheless, the facts of this matter should be considered alongside the evidence relating to the trimming work carried out by Mr Mr Spencer. There is no dispute that the work by KGB and Mr Spencer’s Motor Trimmers was carried out on the defendant’s van concurrently during the month of September 2008. There is also no dispute that the defendant told both men to charge the services to the dealership. The issue is whether the services are represented on P16 and P18. Mr Mr Stephens was clear that the work on the van is detailed on P16. He is clear the defendant told him to write the word “Magna” and said that “payment would come off his holiday pay”. That same vehicle was trimmed by Mr Mr Spencer at about the same time. I do not accept that Mr Mr Stephens either lied or was confused as to which vehicle was the subject of P16.
[187]Similarly, Mr Mr Spencer was a most reluctant witness. His discomfort was patent. However, he was clear that he worked on the defendant’s van (concurrently with KGB) and that P18 represents that work. He said that the defendant told him to describe the vehicle as a Magna on the invoice and that Mr Papilla had approved of that. I reject the suggestion that the dealership pressured Mr Mr Spencer to give false evidence against the defendant. There is no evidence of that.
[188]An important aspect of the defence case is that as P18 bears the date of 29/9/08, that invoice cannot relate to the van as by that time, the defendant was away in the Flinders Ranges. He said that he collected the finished van on 19 September and gave a detailed description of his movements that day. In particular, he said that his mechanic drove him to KGB and he then drove the van home. He said he left for his holiday within a few days, eventually nominating 22 September. Curiously, Mrs Theophilus was unable to give the exact dates of the trip. She did, however, remember collecting the van from the repairers. Her evidence is in stark contrast to the defendant’s. In particular, she said that she drove the defendant to collect the van.
[189]Mrs Theophilus’ evidence has a marked detrimental effect on the defendant’s credibility. I am prepared to find, beyond reasonable doubt, that the defendant’s version of collecting the van on 19 September is a lie told out of the consciousness of guilt. He attempted to persuade the court that P18 could not relate to his van because he had collected it some 10 days earlier. That lie was exposed through the evidence of Mrs Theophilus. My view of the defendant’s credibility is reinforced by his evidence concerning the repair order, also part of P18. He said that that would have been generated on 22 September 2008, as stated on the order. He hesitated when asked about the overriding process referred to by Mr Rippin and gave the response that he could not recall that being done. The defendant had a good memory of other accounting processes within his section but was unable to recall the overriding process which Mr Rippin said was done regularly. He would not concede that the overriding process existed because such concession would throw doubt on whether the repair order was generated after he left the dealership. I reject the defendant’s evidence on that topic.
[190]I make the following findings in relation to counts 10 and 12:
(1)     Between about 18 and 29 September 2008, KGB and Mr Spencer’s Motor Trimmers carried out work on the defendant’s panel van.
(2)     The defendant misrepresented to Mr Stephens and Mr Spencer that he was authorised by the dealership to have the cost of such work charged to the dealership’s account. He also misrepresented to the dealership that the work was done on a “Magna”. This latter representation was effected by Mr Stephens and Mr Spencer agreeing to refer to the vehicle as a Magna on P16 and P18.
(3)     The cost of such work as set out in P16 and P18 was borne by the dealership and never repaid by the defendant either from his “holiday pay” or in any other way.
(4)     Accordingly, the defendant obtained a benefit from his misrepresentation.
(Emphasis added)
The application of grounds of appeal 1 and 3 to counts 10 and 12
For the same reasons given in connection with count 9, I consider that grounds of appeal 1 and 3 are not made out in relation to counts 10 or 12.
The application of ground of appeal 2 to counts 10 and 12
The only further complaint in relation to counts 10 and 12 is contained in ground of appeal 2, that her Honour erred in finding a “consciousness of guilt”.
There is no doubt that this term is at the centre of one of the thorniest areas of the law concerning the topic of lies told by a person accused of a crime. As the editor of Cross On Evidence[51] rightly observes, the appellate litigation in the area of lies is “prodigious”. Unsurprisingly, not all of the cases are entirely consistent with each other and, despite the wealth of authority, a number of things remain unclear or, at the least, subject to debate.
[51] JD Heydon (ed), Cross on Evidence (Lexis Nexis, 8^th ed, 2010) 502 [15220].
However, one thing that does seem to be clear is that the term “consciousness of guilt” connotes a lie that is capable of constituting an implied admission by the accused which may be used as “positive” or “independent” evidence of guilt just as an express admission might be used. It is therefore of paramount importance that a lie said to have such character and consequences must be carefully distinguished from the more usually encountered lie that can only be used as militating against the credibility of the accused. It is for these reasons that the courts have repeatedly counselled in the context of jury trials that great caution should be taken before suggesting that lies may be used as evidencing a consciousness of guilt. As Duggan J observed in R v Grosser:[52]
[70]Courts of Appeal have frequently expressed concern about reliance by the prosecution on alleged lies to provide independent evidence of guilt when such reliance is inappropriate: R v Sutton (1986) 5 NSWLR 697 at 701; R v Heyde (1990) 20 NSWLR 234 at 236; Harris v The Queen (1990) 55 SASR 321 at 323, 325 and R v Webb (1992) 59 SASR 563 at 577. In R v Heyde (at 236) Gleeson CJ recalled the comment made by Street CJ in R v Sutton that reliance by the prosecution on lies as collateral conduct providing evidence of guilt is “fraught with the risk of miscarriage”.
[52] (1999) 73 SASR 584, 601.

Indeed, it has been stated many times that the telling of lies will only rarely demonstrate a consciousness of guilt in the required sense.[53] Thus Duggan J later observed in that same decision in R v Grosser:[54]
[53] For example, in Harris v The Queen (1950) 55 SASR 321, 323, King CJ observed that where, as here, the accused was aware of the allegations being made against him, a “consciousness of guilt” approach should not be taken “in any but the rarest of cases”.
[54] (1999) 73 SASR 584, 603-604.
[74]…There is a clear distinction to be drawn between lies which provide positive evidence of the commission of a crime and lies told by an accused to improve his or her position in the face of allegations.
…
[76]…It is simply an attempt to improve his position in relation to the facts upon which one of the prosecution arguments was based. The lies on this issue, if they were told would be relevant to the appellant’s credibility, particularly in relation to his claim of self-defence. But they would hardly amount to an admission of guilt.
…
[78]…lies told in circumstances such as these to bolster up a claim of self-defence do not necessarily involve an admission that the person telling the lies is guilty of the offence.
The appellant in the present case relied upon the decision of the High Court in Edwards v The Queen:[55] indeed, it was the only authority he cited. Deane, Dawson and Gaudron JJ there stated:[56]
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. … And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in [the commission of] the offence, or, as was said in R v Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
(Footnotes omitted)
[55] (1993) 178 CLR 193.
[56] Ibid 210-211.
I have taken the liberty of inserting the words [the commission of] in the passage having regard to the later decision of the High Court in Zoneff v The Queen[57] where it was stated:[58]
[16]There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, “the accused knew that the truth ... would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)
[57] (2000) 200 CLR 234.
[58] Ibid 244 [16] (Gleeson CJ, Gaudron, Gummow and Callinan JJ).
Turning to the present case, there is no question that her Honour was entitled, after considering the whole of the evidence, to come to a view that the appellant had told identified lies and to use that finding as diminishing his credibility. However, her Honour’s words, and particularly the phrase “consciousness of guilt”, suggest that she may have gone further and purported to find that the telling of the particular lie to which she referred, afforded independent evidence of guilt of the crime charged. But I am not sure about this because shortly afterwards in the same paragraph, and apparently within the same stream of reasoning, her Honour states: “My view of the defendant’s credibility is reinforced by his evidence…”. The use of this latter language might suggest that her Honour considered that previously in that paragraph she had only been discussing credibility of the appellant and that she was now moving on to discuss further “reinforcing” matters also going to credibility.
The appellant complains that her Honour did not state what she actually meant by the phrase “consciousness of guilt” or what the consequences of such a finding were as she understood them to be; her Honour did not explain why she considered it appropriate to infer a “consciousness of guilt” as distinct from using the lie as going to credibility; her Honour did not consider that distinction or refer to any of the authorities on the matter or direct herself in the cautionary terms required or suggested by various of them.
The appellant in effect submits that the precise words used by her Honour in a reserved judgment tend to suggest that her Honour did not approach the matter correctly. Her Honour stated: “I am prepared to find, beyond reasonable doubt, that the defendant’s version of collecting the van on 19 September is a lie told out of the consciousness of guilt.” However, the standard of proof is not proof beyond reasonable doubt but rather the usual standard applicable to other facts in issue. In the present case, it is inappropriate to dismiss this error as simply “unduly favourable to the appellant” because it may be suggestive of a more general misapprehension of the law in the area[59] including the aspect of what may be referred to as circularity of reasoning, a subject which occupies a central focus in dozens of the authorities.
[59] There were some suggestions many years ago now that the standard of proof of beyond reasonable doubt was appropriate in circumstances where a lie by an accused was sought to be used as corroboration of evidence against the accused. King CJ did indeed express this view in R v Evans (1985) 38 SASR 344, 347-348. However, his Honour there did so in express reliance on an interpretation of the then recent decision of the High Court in Chamberlain v The Queen(No 2) (1984) 153 CLR 521 which interpretation was expressly disavowed by the High Court in the later case of Shepherd v The Queen (1990) 170 CLR 573 and subsequent decisions. It was explicitly stated in Edwards v The Queen (1993) 178 CLR 193, 210 that such a lie “does not have to be proved to any particular standard of proof”.
At the risk of oversimplifying the matter, it may suffice to say for present purposes that what is to be initially proved (to whatever standard) is not “a lie told out of the consciousness of guilt” but simply the deliberate telling of a particular identified lie. Once that is proven, the significance of that proven lie in the context of all other relevant evidence may be assessed and a decision made as to whether this is one of the rare instances where the proven lie may be used as evidence that may evince a consciousness of guilt or whether it simply goes to the credibility of the accused in the usual way. But even if the decision is made that the lie may evince a consciousness of guilt, it only remains an item of evidence to be used in the final consideration of all of the evidence when the ultimate question of whether the charge has been proven beyond reasonable doubt is addressed.
Approached in that way, hopefully circularity of reasoning may be avoided. However, in the present case the appellant in effect submits that there remains a spectre of circularity in the reasoning since a “stand alone” compendious finding of proof beyond reasonable doubt of a lie told out of the consciousness of guilt tends to convey something of an assumption of guilt of the offence at a preliminary stage of her Honour’s judgment.
Were I to explore these submissions to finality in the present case, I would have to consider the above foreshadowed matters at greater depth as well as a number of additional associated considerations including a detailed survey of the precise evidence in the present case that had to be relied upon to establish the particular lie[60] and whether that lie, if established, could safely give rise to an inference of consciousness of guilt in the circumstances.
[60] I note that her Honour relies upon an inconsistency between the evidence of the appellant that it was a workmate who helped him pick up the van and the evidence of Mrs Theophilus who stated that she did. However, Mrs Theophilus was, in that context, also clearly stating that the van had been picked up before the holiday and was in the home garage during the holiday which evidence was, of course, quite inconsistent with the prosecution case and implicitly rejected by her Honour. It is at least arguable that the inconsistency between the appellant and Mrs Theophilus as to who picked up the van did not, standing alone, require a finding that the appellant had told a deliberate lie about the matter in that Mrs Theophilus may have confused occasions when she picked up or dropped off her husband at various places over the years.
However, I consider that it is not necessary for me to pursue the matter further since, as in the case of count 9 discussed above, I intend to adopt the approach of Bray CJ in Pope v Ewendt. Once again, I have come to the view that the combination of strong circumstantial and strong direct evidence produced a prosecution case on counts 10 and 12 that was overwhelming.[61] As to the circumstantial evidence, this could be affected very little by the matters concerning lies to which I have referred. As to the direct evidence, the Magistrate was entitled to accept the prosecution evidence as correct beyond reasonable doubt notwithstanding the appellant’s contrary evidence.
[61] For completeness, I record that on appeal the appellant tendered a credit card statement as to the purchases made by the appellant and his wife (travelling together) during the holiday which he said he had inadvertently failed to tender at trial. The prosecutor did not oppose the tender and in fact asserted that the document favoured his case. On correct analysis, that evidence, taken with the other evidence at trial, does not exclude the prosecution contention that the appellant picked up the van on 29 September 2008 and in fact appears to establish that the appellant had returned to Adelaide by that date. The credit card evidence cannot establish one way or the other whether the appellant picked up the van on 19 September or 29 September 2008 because the defence case was that a different vehicle was taken on the holiday and therefore the van could then have been either at the appellant’s home garage or still being worked on during that period.
I find that, if one takes the argument of the appellant at its highest and accepts that the effect of finding a “consciousness of guilt” did go beyond a mere adverse finding as to credibility and wrongly extended to an admission of positive evidence (namely, an implied admission of guilt), the appeal in relation to counts 10 and 12 should nevertheless be dismissed because I am sure that her Honour would have come to the same result if she had put aside such reasoning and restricted the use of the lie as going to credibility only. I am satisfied that “it is clear that the same result must or would have been achieved if the wrongly admitted evidence had been excluded”.[62]
[62] Pope v Ewendt (1977) 17 SASR 45, 50.
Count 3 – the “51003” storage cabinet
As indicated above, the facts surrounding count 3 are markedly different to the other charges considered above in that its subject matter, a 36 drawer storage cabinet[63] (“the cabinet”), was said to have been ordered by the appellant on a legitimate account of NEM with no false details being entered onto any document. Mr White, the financial controller of NEM, gave evidence that the relevant exhibit P9, an invoice dated 9 July 2008 from a supplier, Mr van Loenen, had the handwritten numbers “531-03”[64] circled near the middle of the document and that this showed that the items were to be charged to the service department’s profit and loss account and, in particular, the Tools and Supplies Account. Mr White further stated that the “processed” stamp on P9 showed it had been processed through the accounting system and payment would have been made to the supplier.[65] In summary, the paperwork submitted upon which payment to the supplier was requested and subsequently made by NEM, was entirely appropriate for the purchase of such a cabinet on behalf of NEM and it was within the authority of the appellant to commit NEM to such a purchase.
[63] “51003” was the manufacturer identifier number for this type of cabinet which was produced and sold for a number of years with that same identifier number even though some changes or updates were made from time to time.
[64] Note that this number is coincidentally similar to the manufacturer’s identifier number. The two are in no way related.
[65] Mr White gave evidence that all the invoices the subject of the charges were processed and paid by NEM, and this was not disputed by the appellant at trial or on appeal.
There were at least four matters that were critical to the prosecution case on count 3. The first critical matter was that the cabinet found at the appellant’s premises on 27 May 2009 had to be proven in fact to be the cabinet referred to in invoice exhibit P9 (paid by NEM on about 9 July 2008) and not, as claimed by the appellant at trial, a quite different cabinet (albeit of the same “51003” style) that he had previously acquired quite honestly. In short, the appellant stated that in relation to the cabinet referred to in the invoice P9, he had ordered that cabinet from van Loenen for the purpose of NEM’s storage of various small items, that it had been duly delivered to NEM and been paid for by NEM, that it had been placed in the tool room and was there when he left NEM.
Although the circumstances are somewhat suspicious, I have considerable reservations both as to whether the defence version was in fact negated beyond reasonable doubt and as to the adequacy of the Magistrate’s reasons in this respect.[66] However, there was no ground of appeal or argument proffered by counsel for the appellant as to either of these matters and, in light of the fact that I later find that the appeal should be allowed on other grounds with no order for a retrial, I do not intend to burden a judgment that is already too long with the additional number of pages that would be needed to analyse the evidence and the Magistrate’s judgment in order to explain why I am tentatively of that view.
[66] On an analysis of the evidence in detail, the version of the appellant was in fact not inconsistent with the prosecution case to any serious degree in that the prosecution case never rose above the assertion of the witness van Loenen that the “51003” cabinet in the photographs (that found at the appellant’s home) looked “the same” as the “51003” cabinets he used to sell. Cf Pitkin v The Queen (1995) 69 ALJR 612, 613 where the words “This looks like the person …” were under consideration. Nor was the appellant’s version inherently implausible if the matter is approached in the light of the presumption of innocence. The asserted need for a cabinet of the present type for a business such as NEM was not unrealistic and such a purchase was well within the appellant’s authority. If, as the appellant maintained, he already had a “51003” cabinet at home with which he was satisfied, it was hardly unlikely that he would decide that it was appropriate for NEM to purchase the same type of unit as his own since he could vouch for its suitability. In other words, what might initially appear to be “too much of a coincidence” might on correct analysis be nothing of the sort. On this last aspect, see generally R v Duncan (2011) 109 SASR 479.
The second critical matter was that the requisite “deception” be established beyond reasonable doubt. Although reproduced in connection with s 139 above, it is convenient to remind oneself that definition section (s 130) which defines deception thus:
deception means a misrepresentation by words or conduct and includes—
(a) a misrepresentation about a past, present or future fact or state of affairs; or
(b) a misrepresentation about the intentions of the person making the misrepresentation or another person; or
(c) a misrepresentation of law;
There is a real question here as to whether, as a matter of law, a “misrepresentation by words or conduct” could be established. As stated above, the appellant had authority to order the cabinet on behalf of NEM, the documents were all in order and there is clearly no express misrepresentation by words, oral or written. I suppose that it could be suggested that there was a misrepresentation of the type referred to in sub-s (b) on the basis that the appellant always had the intention of appropriating the cabinet to his own use and therefore his purported order of the cabinet for NEM constituted a misrepresentation concerning that intention; in other words, there was pursuant to sub-s (b) “a misrepresentation about the intentions of the person making the misrepresentation”. However, the intractable fact remains that there never was any such express representation and it seems to me to be a highly dubious proposition that one can somehow “imply” such a central ingredient of criminal liability. The artificiality of such a construction of the statute is underlined by the fact that under s 139 the misrepresentation nominated by the prosecution must be such as to cause the benefit to accrue to the appellant; a high degree of mental gymnastics would be required to grapple with the proposition that an abstention by a person in the position of the appellant from stating that he then had an intention of misappropriating property he had authority to purchase on behalf of a company, constituted a misrepresentation which caused an account clerk to pay the supplier’s account. The real and obvious answer would appear to be that, in relation to count 3 which, as stated at the outset, was quite different to the other counts, the appellant was simply charged with the wrong offence.[67] However, it is not necessary to pursue that matter to finality since the third and fourth critical matters are within the grounds of appeal and must be decided in the appellant’s favour.
[67] The offence of theft contrary to s 134 Criminal Law Consolidation Act 1935 (SA) could obviously have been laid or possibly a charge of unlawful possession may have been appropriate. However, the appellant having stood trial on the charges selected by the prosecution, it would be inappropriate to now attempt to lay such charges.
Grounds of appeal 5 and 1
The third and fourth critical matters relate to proof of the intention of the appellant at the time of ordering the cabinet (ground 5) and causation (ground 1 applied to count 3).
Even if, contrary to my tentative view, the prosecution could proceed on a theory of a misrepresentation based on the appellant then having an intention to misappropriate the cabinet, such a case cannot be made out on the evidence in the present case. It must be firmly borne in mind that it cannot be presumed that just because the Magistrate found the appellant guilty of some deceitful acts, he behaved deceitfully in all his dealings with NEM. It is obvious that he would have ordered many items on behalf of NEM as to which he had no intention of misappropriation. As is argued under ground of appeal 6, even if the appellant did subsequently misappropriate the cabinet, there is simply no sufficient evidence that the appellant had the intention to misappropriate the cabinet at the time that the order was placed.
The only way that the prosecution could establish that precise contemporaneous intention on 9 July 2008 was by reliance on the evidence suggesting that the cabinet in question was later found at the appellant’s home on 27 May 2009. However, even if that cabinet was the same cabinet the subject of the invoice exhibit P9, dated 9 July 2008, there was no evidence establishing when the appellant had taken it to his home. It is trite but necessary to here emphasise that if the appellant had originally lawfully ordered the cabinet for the use of NEM, it being delivered to the NEM premises, but at some later time had dishonestly decided to take it home and appropriate it to his own use, he would certainly be guilty of a criminal offence but it would certainly not be the offence of which he was convicted.

The evidence of the supplier of the cabinet was that the documentation was usual for a NEM order and there was no suggestion other than delivery would have been made to the NEM premises.
The only other evidence potentially relevant to this matter came from Mr White (the financial controller) which is confined to the very brief passage of evidence:
I don’t know why we need to order five key rings from van Loenen and a 36-drawer cabinet. I have never seen it, and it is not in the workshop.
However, one must be quite cautious as to this evidence. There was no evidence as to how much time Mr White would have spent in the service department and what notice, if any, he would have taken of items such as storage cabinets. A negative statement such as “it is not in the workshop” is easy to make but is vague and should carry little weight in the present case where the real question is: was the cabinet ever in the workshop subsequent to its delivery and prior to its removal to the appellant’s home? Further, one must have regard to her Honour’s relatively unflattering general assessment of this witness:
[30]Mr White presented as a confident witness in examination-in-chief but that confidence dissipated during cross-examination when his poor work practices and supervision were exposed. It was also notable that Mr White changed his mind about recognising the handwriting on P19 when clearly, the writing on that invoice is similar to the handwriting on other invoices which he readily connected to the defendant.
I also note that her Honour rejected his evidence in relation to the allegation concerning the key rings that formed part of the same count, count 3, upon which aspect the appellant was acquitted. Her Honour stated in relation to Mr White’s evidence that he knew nothing about the key rings:
[155]Given that Mr White’s department approved those purchases for payment and the unusual nature of those items, it is not believable that Mr White knew nothing about them. I accept that, at the very least, he gave tacit approval for the defendant to make the purchases to give as small gifts to staff when bonus targets were not reached.
I consider that the possibility of an innocent ordering by the appellant of the cabinet coupled with a later and separate formation of an intention to steal the cabinet cannot be negated beyond reasonable doubt and ground of appeal 5 is therefore made out. It also follows that ground 1 (as it applies to count 3) is also made out because if it cannot be established that the appellant held the requisite intention to misappropriate the cabinet at the time of the order, no misrepresentation is established. It would in turn follow that causation of the accrual of benefit to the appellant in the requisite sense also could not be established.
Dismissal or retrial on count 3?
Although the grounds of appeal should have raised the matter of adequacy of evidence explicitly, the fact is that the consequence of success on grounds 1 and 5 (as they apply to count 3) is, in the particular circumstances of this case, that count 3 has failed due to a lack of evidence in relation to at least one major ingredient of the charge which the prosecution chose to lay. It is clear that where, as here, the selected charge cannot be proven beyond reasonable doubt on the evidence that was led, a successful appellant should not be required to stand trial again.
Such a conclusion would in any event be confirmed by a consideration of the discretionary considerations in the present case if it were necessary to resort to them. The penalty imposed for all four convictions was a fine only. Count 3 is now very stale, being alleged to have occurred more than three years ago and was considerably less serious than the other charges, involving a benefit of only $153.75 whereas counts 9, 10 and 12 involved amounts of $1,385.21, $1,500.00 and $950.00 respectively, a total of $3,835.21. The convictions on 9, 10 and 12 will stand and a retrial on the more minor count 3 would appear pointless and unduly oppressive in all of the circumstances.
Conclusion
For all of the reasons above, the appeal is dismissed in relation to counts 9, 10 and 12 but will be allowed in relation to count 3 only. The conviction on count 3 is set aside and the Information insofar as it relates to count 3 is dismissed with no order for a retrial.

[41] [1928] SASR 105.

[2011] SASC 135

26 August 2011

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Breach of Contract

Causation

Fraudulently or Deceptively Obtaining Money, Valuable, Financial Benefit or Advantage

Miscarriage of Justice

Compensatory Damages