Tokley v Holmes - [2014] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TOKLEY v HOLMES
[2014] SASC 101
Judgment of The Honourable Justice Blue
1 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - GENERALLY
CORPORATIONS - MANAGEMENT AND ADMINISTRATION - DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION - OFFENCES - FALSE OR MISLEADING STATEMENTS OR INFORMATION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The defendant was charged in the Magistrates Court with two counts of dishonestly using his position as a director of the Abalone Council of Australia Ltd (ACA) with the intention of gaining an advantage for his company, Strategic Management Consultants Pty Ltd (SMC), and one count of knowingly giving false information to a fellow ACA director relating to ACA’s affairs.
The defendant organised ACA’s September 2008 convention at the Port Lincoln Hotel. The total amount charged by the Hotel was approximately $61,000, which the defendant paid in October/November on his credit card. In October, the defendant drew cheques on ACA’s bank account signed by the defendant and a fellow ACA director to reimburse himself approximately $61,000. Later in November, cheques for $4,950 and $23,056 signed by the defendant were banked into SMC’s bank account. The defendant’s fellow director gave evidence that there were two occasions on which he and the defendant signed blank ACA cheques: in one instance he was told by the defendant it involved payment for security at the Hotel and on the other occasion it involved payment to the Hotel. The cheques and their corresponding butts were completed by the defendant’s partner. The first cheque was annotated to denote security expenses and the second to denote venue hire and other expenses, each paid to the Hotel. At some point, false invoices purporting to be on the Hotel letterhead were created for the amounts of the cheques. An SMC invoice was also created for the amount of the second cheque.
The defendant’s partner gave evidence that she filled in the two cheques and their butts and created the false Hotel invoices and the SMC invoice without reference to the defendant. The Magistrate rejected her evidence and found that the defendant knew the intended purpose of the cheques when he signed them and knew that SMC was not entitled to payment by ACA for security expenses or venue hire. The Magistrate also found that statements made by the defendant in June 2009 to a different fellow ACA director that the payments were for security expenses and venue hire each paid to the Hotel were knowingly false.
The Magistrate convicted the defendant on each count. The Magistrate imposed suspended terms of imprisonment of two and four months cumulatively on the first two counts and one month concurrently on the third count.
The defendant appeals against the convictions and sentences.
Held by Blue J (dismissing the conviction appeal):
1.       The Magistrate did not err in permitting the informant to amend the particulars of the first two counts to encompass a case that the cheques had not been completed when signed by the defendant (at [104]).
2.       The Magistrate did not err in rejecting the defendant’s no case to answer submission, drawing inferences from the defendant’s subsequent conduct, admitting evidence over the defendant’s objection and not accepting the defendant’s contentions concerning other entitlements of SMC to payment by ACA (at [112]-[116], [118]-[121], [123] and [130]).
3.       The Magistrate did not err in finding count 1 proved beyond reasonable doubt (at [140]).
4.       The Magistrate did not err in finding count 2 proved beyond reasonable doubt (at [151]).
5.       The Magistrate did not err in his rejection of the evidence of the defendant’s partner (at [164]).
6.       The Magistrate did not err in finding count 3 proved beyond reasonable doubt (at [175]).
Held (dismissing the sentence appeal):
1.       The Magistrate did not err in referring during his sentencing remarks to endeavours by the defendant to conceal his dishonesty (at [183]-[184]).
2.       The Magistrate did not impose double punishment on the defendant as between count 3 and counts 1 and 2 (at [189]).
3.       The Magistrate did not err in his reference in his sentencing remarks to the defendant’s voluntary work (at [194]).
Corporations Act 2001 (Cth) s 184(2)(a), s 1309(1); Crimes Act 1914 (Cth) s 4J; Summary Procedure Act 1921 (SA) s 103(3), s 181(2), referred to.
Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610; State of Western Australia v Rayney (No 3) [2012] WASC 404 , discussed.
Foley v Hill (1848) 2 HL Cas 28; Fox v Percy (2003) 214 CLR 118; Heperu Pty Ltd v Belle [2009] NSWCA 252, (2009) 76 NSWLR 230; Joachimsom v Swiss Bank Corporation [1921] 3 KB 110; Shrubsole v Rodriguez (1978) 18 SASR 233; R v Becker [2005] SASC 186, (2005) 91 SASR 498; R v Kreutzer [2013] SASCFC 130, (2013) 118 SASR 211; R v Reiner (1974) 8 SASR 102; Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629, considered.

TOKLEY v HOLMES
[2014] SASC 101
Magistrates Appeal:
BLUE J:

These are appeals against convictions and sentences imposed by a Magistrate.
The appellant and defendant, Michael Tokley, was charged by the respondent and informant, Ralph Holmes, on an Information with two counts of dishonestly using his position as a director of the Abalone Council of Australia Ltd (ACA) with the intention of gaining an advantage for Strategic Management Consultants Pty Ltd (SMC)[1] and one count of giving information to a fellow director of ACA relating to the affairs of ACA that to the defendant’s knowledge was false or misleading in a material particular.[2]
[1] Corporations Act 2001 (Cth) s 184(2)(a).
[2] Corporations Act 2001 (Cth) s 1309(1).
The defendant pleaded not guilty and elected for the matter to be tried summarily in the Magistrates Court.[3] On 1 November 2013, the Magistrate convicted the defendant on each count.
[3] Crimes Act 1914 (Cth) s 4J; Summary Procedure Act 1921 (SA) s 103(3).
On 17 January 2014, the Magistrate imposed a sentence of imprisonment of two months on count 1, four months cumulatively on count 2 and one month concurrently on count 3. The sentences were suspended upon the defendant entering into a recognisance to be of good behaviour for 12 months.
The defendant appeals against the convictions on 21 grounds and against the sentences on three grounds.[4]
Background
[4] The sentence appeal is out of time and an extension of time is sought.
ACA and SMC
ACA is a company limited by guarantee. It is the peak body representing the wild caught abalone industry of Australia. Its members are the peak State bodies representing the wild caught abalone industry in the five States where abalone is wild caught. Those members are the Abalone Industry Association of South Australia Incorporated, the Tasmanian Abalone Council Limited, the Abalone Development Company of New South Wales Pty Ltd, the Abalone Industry Association of WA and the Victorian peak abalone body. Before its incorporation in 2004, ACA was an unincorporated association. Upon incorporation it remained essentially a not for profit organisation.
When ACA was incorporated in 2004, it had eight directors. The defendant and Robert Pennington represented South Australia and James Hoult and Dean Lisson represented Tasmania. There were also directors representing Victoria, New South Wales and Western Australia. By November 2004, the defendant had been appointed Chairman.
ACA operated a cheque account with the Commonwealth Bank. The defendant and Mr Pennington were joint signatories.
SMC carried on business providing accounting, business and project management services. Its directors and shareholders were the defendant and his partner, Rona Spicer. It operated a cheque account with Bank SA.
SMC provided management services to ACA. At the ACA board meeting on 18 February 2005, it was agreed that ACA would pay $80 per hour[5] for executive duties undertaken by the defendant on behalf of SMC and $20 per hour for administrative work undertaken by SMC staff. ACA’s registered office and principal place of business was at SMC’s office at Hove, South Australia. ACA’s accounts and cheque book were kept at SMC’s office at Hove.
[5] All dollar figures mentioned are inclusive of GST unless otherwise stated or indicated by the context.
At the material times in 2008 and 2009, SMC had three employees. The defendant provided professional services to clients. Ms Spicer undertook administration, including invoicing, banking and bookkeeping. Jessica Wolfendale was undertaking a certificate in business administration and worked as a trainee in general administration. Her duties involved general office work. One of Ms Wolfendale’s duties was to take cheques to the Bank SA branch and deposit them into SMC’s bank account.
The 2008 Convention
One of ACA’s functions was to conduct a triennial convention for members of the State bodies and others involved in the abalone industry. The convention in 2008 was held at the Port Lincoln Hotel (the Convention). There was an informal arrangement within ACA that the defendant, through his role at SMC, would organise the Convention.
The Convention was to be held on Thursday 18 and Friday 19 September 2008. There were to be 115 attendees. Registration was to commence on Wednesday 17 September at 4.00 pm and there was to be a cocktail function for attendees and invited guests totalling 135 people between 6.00 pm and 8.00 pm that evening. There was to be a dinner on the Friday night for attendees and invited guests totalling 140 people.
Between November 2007 and September 2008, the defendant negotiated all of the financial arrangements with the Port Lincoln Hotel, principally with the functions manger, Philippa Murphy. He negotiated a room only rate of $110 (town view) or $120 (ocean view) per night for attendees on the basis that attendees would pay any extras individually. Ultimately, there were 59 attendees who stayed at the Port Lincoln Hotel. Most stayed three nights, although the length of stays ranged from one night to six nights.
The defendant negotiated a function room hire fee of $300 for the Wednesday and $750 for each of the Thursday and Friday. He negotiated a package of $62.50 per person for cocktail food and drinks on the Wednesday evening. He negotiated a package of $40 per person for lunch, morning and afternoon tea on each of the Thursday and Friday. He negotiated a package of $115.50 per person for the Friday night dinner.
Based on the rates negotiated, the total cost of the Convention incurred at the Port Lincoln Hotel, excluding accommodation, was as follows:

Day

Function room hire

Day time

Evening

Total

17 September

$300

$8,437.50

$8,737.50

18 September

$750

$4,600

$5,350.00

19 September

$750

$4,600

$16,170.00

$21,520.00

$35,607.50

The defendant attended at Port Lincoln between 15 and 21 September 2008 for the purpose of the Convention. There were also board meetings of ACA and of the South Australian Abalone Industry Association. Ms Spicer was present with the defendant in Port Lincoln during the Convention. Ms Wolfendale and her then partner, Chris Taylor, drove to Port Lincoln on 15 September and returned to Adelaide on 20 September.
Payment of Port Lincoln Hotel expenses
On 26 September 2008, the Port Lincoln Hotel issued invoice 8382 to the ACA for $37,307.50. It was apparently received by the SMC office on 2 October 2008. This encompassed all charges by the Hotel for functions, namely $35,607.50 as set out in the table above, together with $1,700 for account 21076.
On 7 October 2008, cheque number 68 was drawn by ACA for the amount of Port Lincoln Hotel invoice 8382, namely $37,307.50. The cheque was completed by the defendant, signed by the defendant and Mr Pennington and banked by Ms Wolfendale into SMC’s Bank SA bank account. On the same day the defendant paid $40,000 to the Port Lincoln Hotel by debiting his Mastercard and Visacard.
On 8 October 2008, the Port Lincoln Hotel issued 58 invoices to ACA for room accommodation. The invoices were apparently received by the SMC office on 9 October 2008. The total of those invoices was calculated by SMC to be $23,556.54. The defendant wrote that total on to the first invoice of the bundle, being the invoice for his own accommodation. On 17 October 2008, cheque number 78 was drawn by ACA for $23,556.54 for the room accommodation. The cheque was completed by the defendant, signed by the defendant and Mr Pennington and banked by Ms Wolfendale into the defendant’s personal bank account.
The Port Lincoln Hotel subsequently issued a belated invoice for an attendee, Ms Mullen, for $480 and credited $29 overcharged for another attendee, Ms Watts. These transactions brought the amount outstanding by ACA to the Port Lincoln Hotel to $21,305.04. On 15 November 2008, the defendant paid $21,305.04 to the Port Lincoln Hotel by debiting his Mastercard.
As at 15 November 2008, the defendant had paid by way of credit card $61,305.04 to the Port Lincoln Hotel and ACA had reimbursed him $60,864.04 by way of cheque number 68 and cheque number 78. The defendant was still owed a shortfall of $441 by ACA. Ultimately, that amount of $441 was invoiced by SMC to ACA as part of an invoice dated 30 July 2009.
Cheque 89
On 17 November 2008, cheque number 89 payable to SMC for $4,950 was drawn by ACA (ACA cheque 89) and was banked into SMC’s bank account. It had been signed by the defendant and Mr Pennington. The payee and amount details were completed by Ms Spicer. A notation made by Ms Spicer on the cheque butt recorded the following details:
Date: 17-11-08
To:     Pt Lincoln Hotel
For:   Security
# 8143
Amount: $4950—
On a date unknown, an invoice was created within the SMC office on the letterhead of the Port Lincoln Hotel bearing invoice number 8143 (purported PLH invoice 8143). It bore the date 21 September 2008 and was addressed to ACA. It contained the following details:

Date Details of supply GST Amount (Inc. GST)

21/9/2008

Security for 4^th National Abalone Convention,
18^th & 19^th September 2008 @1500 per day

$450.00

$4950.00

Total payable

$4950.00

A copy of the invoice bears Ms Spicer’s handwriting “Paid 17/11/08 # 0000089”. This invoice was not a genuine invoice from the Port Lincoln Hotel in that it was not produced by the Hotel and does not reflect an amount charged by the Hotel to ACA. The Port Lincoln Hotel had issued an invoice number 8143 to the ACA but it was for $720 for room accommodation for an attendee, Dr Prince.
Cheque 90
SMC issued three invoices to ACA dated 21 November 2008. Invoice 1465 was for $23,056, which was described as being for “Reimbursement for expenses paid for 4^th National Abalone Convention Port Lincoln Hotel” (SMC invoice 1465). It comprised venue hire ($20,000), catering costs – cocktail evening ($900), miscellaneous expenses ($60) and GST ($2,096). Invoice number 1466 was for $2,800 and invoice number 1467 was for $1,619.17, both being in connection with the Convention.
On 24 November 2008, cheque number 90 payable to SMC for $27,475.17 was drawn by ACA (ACA cheque 90) and was banked into SMC’s bank account. It had been signed by the defendant and Mr Pennington. The payee and amount details had been completed by Ms Spicer. A notation made by Ms Spicer on the cheque butt recorded the following details:
Date: 24-11-08
To: SMC Pty Ltd
For:
Inv # 1467, 1466, 1465
1619-17
23056-00
2800-
Amount: $27475-17
On a date unknown, an invoice was created within the SMC office on the letterhead of the Port Lincoln Hotel bearing invoice number 8193 (purported PLH invoice 8193). It bore the date 21 September 2008 and was addressed to ACA. It was for a total of $23,056.00 and contained the same details as were contained in SMC invoice 1465. This invoice was not a genuine invoice from the Port Lincoln Hotel in that it was not produced by the Hotel and does not reflect an amount charged by the Hotel to ACA.
ACA board meetings
On 4 December 2008, there was a meeting of the ACA board in Adelaide. It was agreed that Tasmania would take over from South Australia the administration of ACA’s affairs. Mr Lisson was the President of the Tasmanian Abalone Council. Melinda Mullen was its administrative officer. It was resolved that the defendant would organise the handover of the administration of ACA to Ms Mullen in early 2009. The next meeting was scheduled to be held in Hobart on 18 February 2009.
On 18 March 2009, there was a meeting of the ACA board in Hobart. It was recorded that all ACA papers were to be sent to Ms Mullen. After the meeting, the defendant provided to Ms Mullen or Mr Lisson an invoice from SMC to the ACA dated 20 February 2009 for $27,000 (SMC invoice 1510). The description contained in the invoice was “Attendance and Administration at 4th National Abalone Convention for Michael Tokley, Jessica Wolfendale, Chris Taylor and Rona Spicer”. The defendant also provided to Ms Mullen some ACA files and a disk containing a copy of the electronic MYOB file for ACA’s accounts which had been maintained by SMC.
On 17 May 2009, Mr Lisson sent an email to the defendant requesting additional detail showing how the $27,000 figure in SMC invoice 1510 was arrived at.
On 19 May 2009, the defendant sent an email to ACA director, David Tonkin, which was copied to Mr Lisson and the other ACA directors, attaching a more detailed version of SMC invoice 1510. It gave a description of the work undertaken as well as total hours worked by the defendant (126 hours), Ms Spicer and Ms Wolfendale (148 hours each) and Mr Taylor (82 hours).
Communications between Mr Lisson/Ms Mullen and the defendant
On 25 May 2009, Mr Lisson sent an email to the defendant raising queries concerning Convention income and expenditure, including payments to the Port Lincoln Hotel of $4,500 for security and of $24,977.43 for SMC invoice 1465 and invoices 1466 and 1467. It is apparent from his email that Ms Mullen and Mr Lisson had the electronic MYOB file for ACA but not any relevant invoices. The relevant parts of the email were as follows:
Melinda and I have been trying to make heads or tails of the 2008 Convention income and expenditure so that we can finalise payment of your invoice #1510.
We have analysed the ACA’s MYOB file and ascertained the following in terms of Convention income and expenses;
·...
·All expenses for the Convention appear to be okay (although we don’t have any of the invoices to verify this). We do note that there was one payment made to the Port Lincoln Hotel for $4,500 for “security” – can you provide detail as to what this may be?
From this point on it gets rather confusing! The following amounts have so far been paid to your management company SMC Consultants from the ACA chequebook for the 2008 Convention;
...
24/11/08 $24,977.43 inv # 1467, 1466, 1465
...
We cannot find copies of the Invoices # 1423, 1438, 1467, 1466 and 1465. Also we cannot determine if they were presented at an ACA meeting for payment approval – there is no record in the meeting notes or the meeting minutes.
Do these invoices relate to labour costs for the 2008 convention or do they relate to other tasks you have performed on behalf of the ACA or indeed expenses other than labour?
...

On 2 June 2009, the defendant sent a responding email to Mr Lisson:
Hi Dean
Sorry for taking so long to get back to you, but have had to look more closely at some of the invoices etc in order to explain what went on. I brought some of the invoices and receipts with me to Tassie last week to talk to you about, but apparently you were away.
Please find by way of explanation an attachment with answers to the questions you pose.
I hope this clears up much of the confusion you experienced trying to reconcile finances in the ACA bank account and the myob file.
Should you have any more queries or concerns, just give me a call, or an email.
Cheers,
Michael
The defendant attached Mr Lisson’s original email of 25 May 2009 together with his responses in a different colour incorporated into that email. The relevant parts of Mr Lisson’s email and the defendant’s responses (italicised below) were as follows:
We have analysed the ACA’s MYOB file and ascertained the following in terms of Convention income and expenses;
...
All expenses for the Convention appear to be okay (although we don’t have any of the invoices to verify this. We do note that there was one payment made to the Port Lincoln Hotel for $4,500 for “security” – can you provide detail as to what this may be?
Yes, the Port Lincoln Hotel required us to pay for security officers/measures around the area in which we held the Convention due to the Trade Booths being erected, equipment and products around also.
...
We cannot find copies of the invoices # 1423, 1438, 1467, 1466 and 1465. Also we cannot determine if they were presented at an ACA meeting for payment approval – there is no record in the meeting notes or the meeting minutes.
These invoices are with the Convention files which I haven’t finished with yet. ... All the files will be sent to the TAC office once completed.
...
The following explanation relates to the other invoices:
...
Inv # 1465 was for venue hire, catering costs for the Cocktail Evening and some extra printing, photocopying, telephone and courier costs incurred through the Port Lincoln Hotel for the Convention;
...
Do these invoices relate to labour costs for the 2008 convention or do they relate to other tasks you have performed on behalf of the ACA or indeed expenses other than labour?
Answered above
On 3 June 2008, Mr Lisson sent a responding email to the defendant. His email included the following passages:
In order to properly update (and reconcile) the 2008 Convention file, we need copies of invoices 1423, 1438, 1465, 1466, 1467, 1471 and 1472 as well as all other invoices for convention related expenses.
Please email or fax them ... or bundle them up and post them to the TAC office.
On 15 June 2009, the defendant met with Ms Mullen in Hobart for an hour or an hour and a half. He had a listing of the income and expenses for the Convention from ACA’s MYOB file. He went through the income and expenses shown on the listing. He produced a file of documents and said that the paperwork was all there to support the income and expense details. He told Ms Mullen there was no need for her to check the paperwork, it was all done and finalised. They did not look at the paperwork in the file while he was there.
Later on 15 June 2009, Ms Mullen asked the Port Lincoln Hotel to send to her a statement for the Convention. The Hotel sent by facsimile a statement dated 15 June 2009. The statement showed total charges of $61,305.04 which had been paid by Mr Tokley on his Mastercard and Visacard. Ms Mullen also contacted the Commonwealth Bank on that day and requested copies of ACA cheques.
On 17 June 2009, Mr Lisson sent a further email to Mr Tokley. The relevant parts of the email were as follows:
I returned from fishing yesterday and met with Melinda at the TAC office today to complete the reconciliation for the 4^th National Abalone Convention. Melinda has obtained a master file printout from the Port Lincoln Hotel which has assisted her to reconcile the payments and receipts attached to the convention. She has diligently worked her way through all the files/invoices that you provided her with on Monday. There are still some queries which we are keen to get to the bottom of in relation to the convention so that a full financial report can be provided to the ACA board on the 2^nd of July.
These remaining queries are as follows;
1.    SMC P/L Invoice #1465 for $23,056 paid on cheque #90, states it was for “Reimbursement for expenses paid for 4^th National Abalone Convention Port Lincoln Hotel”, and is accompanied by invoice #8193 from Port Lincoln Hotel for same amount.
It includes an item of $22,000 Venue Hire, $990 Catering costs 17/09/08 and $66 Printing, photocopying, telephone calls, courier services. Port Lincoln Hotel has advised that it was never been paid this amount, and advises that the invoice is a manual invoice, not created using their normal system.
From statement obtained from Port Lincoln Hotel ACA Convention Master Account, they received 3 payments only:
·     $20,00               7/10/2008           Mastercard
·     $20,000             7/10/2008           Visa
·     $21,305.04          14/11/2008         Mastercard
Total $61,305.04
We are assuming that you used personal credit cards to make the above payments and then sought to be reimbursed from the ACA cheque account.
On two cheques -     #68 7/10/2008   $37,307.50 &
  #78 17/10/2008 $23,556.54 the cheque butts indicate payment has been made to the Port Lincoln Hotel, however the CBA have advised that these cheques were paid to SMC P/L (#68) and Michael Tokley (#78). Presumably these two cheques (totalling $60,864.04) were for reimbursement to your company and yourself for the above 3 payments paid to Port Lincoln Hotel, with a discrepancy of $441.
Please explain re this point:
·    What was the $23,056 (chq 90) paid to SMC P/L for?
·    Why do payee details on cheque butts differ from payee name on cheques?
·    Why was Chq #90 drawn some weeks prior to the creation of invoice #1465
2. …
3. Security - $4,950 – Port Lincoln Hotel advise that they would only arrange security if the client requested it. This is contrary to your earlier advice? Can you provide detail as to what the security company was responsible for at the convention?
Mike, we really need to sort this out ASAP as the next board meeting is only 2 weeks away. Melinda cannot complete the reconciliation process without satisfactory responses to the above queries – can you please attend to this as soon as you can,
Communications between the defendant and Mr Lisson
In the afternoon of 18 June 2009, the defendant spoke by telephone to Mr Lisson. Mr Lisson gave the following evidence of its content:
...I asked him to explain the contents of my previous email ... He then said to me that he had made a big mistake, which he was very sorry for, and that he wished he hadn’t made the mistake, and that he would return the money to the ACA account as soon as possible – that night or the following day. He apologised to myself and to the ACA for this occurrence and, yes, that he very much regretted his actions. Sorry, he also said that he would tender his resignation from the ACA.[6]
[6] T108.
On 18 June 2009, the defendant paid to ACA $28,006 being return of $4,950 which had been paid by ACA cheque 89 and $23,056 which had been paid by ACA cheque 90 the subject of SMC invoice 1465.
On 19 June 2009, there was a further telephone conversation between the defendant and Mr Lisson. Mr Lisson gave the following evidence of its content:
...He made some comments about the fact that his life was going to be ruined, and that his membership of the Chartered Practising Accountants and the Australian Institute of Company Directors would likely be terminated. He also mentioned that he’d paid back the $28,000 into the ACA account...[7]
[7] T109.
On 20 June 2009, the defendant wrote to Mr Lisson in Mr Lisson’s capacity as Deputy Chair of the ACA. He referred to the forthcoming meeting of the board on 2 July 2010 at which it would be considered whether he should continue as a board member. He offered to tender his resignation as Executive Chair and Executive Director of the ACA.
The defendant sought advice from Camatta Lempens. A statement entitled “Statement concerning Conference expenses” was prepared by the defendant dated 1 July and given to the ACA board at the meeting on 2 July. It included the following passages:
THE PORT LINCOLN CONFERENCE
In September 2008, through SMC, I organised a conference on behalf of ACA at the Port Lincoln Hotel in South Australia. I undertook all arrangements necessary to affect the conference which were extensive. I paid all expenses associated with the conference. I will be pleased to provide further information as required in terms of the work undertaken.
PAYMENTS FOR THE CONFERENCE
On 7 October 2008 I paid a total of $40,000, being two payments of $20,000 upon 2 credit cards on behalf of ACA and invoices were issued, which I understand are now with the Tasmanian Abalone Council. These credit card statements are available for inspection. On the same day a cheque from ACA for $37,307.50 was received which cheque was banked into the SMC account by my secretary, Jessica Wolfendale.
Further, on 17 October 2008, a cheque from ACA for $23,556.54 was received which was banked by my secretary, Jessica Wolfendale, into my personal account unbeknown to me at the time. It should have gone into the SMC business account.
On 15 November 2008 I paid on my credit card the sum of $21,305.04 again incurred on behalf of ACA back in September when the conference occurred.
On 15 November 2008 I believed SMC had incurred a debt on behalf of ACA for that said sum, for which I was entitled to be reimbursed.
On 17 November 2008 I rendered a further invoice for $4,950.00 being for certain payments I had made to 3 individuals who had assisted in the conference operations.
On 21 November 2008 I rendered an invoice for the sum of $23,056.00 (inclusive of GST) being the amount I believed was owed to me by ACA at the time relating to conference expenditure, which I now know to be incorrect. I was unaware that substantially this amount had in fact been previously paid into my personal account on 17 October 2008. At the time these expenses were incurred by me as per the credit card transaction set out and attached.For my own records I had produced a note for internal purposes so I could track my payments to the Port Lincoln Hotel. Indeed, since that relevant time, I am owed in excess of a further $40,000 by ACA for which I had yet to seek reimbursement.
In late May 2009 as a result of some queries by ACA I learnt that there had been an overpayment by ACA in the amount of $28,006.00 in respect of the conference. At this time I was owed other monies by ACA for other services. Nevertheless, as soon as I realised the error of the deposit into my personal account of the prior cheque in the sum of $23,556.44, I arranged for the refund to ACA.
I regret that this mistake has occurred and that a double payment resulted. I can assure the Board that I have put systems into place to ensure that such a mistake will not occur again.
MICHAEL TOKLEY
The defendant attended the meeting of the ACA board in Melbourne on 2 July 2009. The board discussed the defendant’s resignation in his absence. Later, the defendant joined the meeting. The minutes of the meeting prepared by Ms Mullen at the time recorded the following:
Michael distributed a letter to all Board members. Michael offered his apologies for the mistake made (i.e, taking $28K), and said it is with deep regret that it happened. Offered his apologies to each and every one of the Board members. Harry Peeters asked if there was any attachment – Michael responded, saying no, just credit card statement. John Hoult queried the amount paid to the security officers – Michael advised that he had paid them cash, and sought reimbursement. Dean Lisson asked Michael what he wanted us to do – Michael responded, saying that because no loss had been suffered by the ACA, that it was a stupid mistake, that his offer to tender his resignation is still valid, (although Michael was unsure if his resignation should be in fact tendered to the SA body), and requested the ACA take no further action. John Hoult confirmed that Michael’s resignation is to this board, not SA association.
Dean Lisson accepted the letter from Michael, and advised that this Board will look into the matter, and advise, and requested Michael to forward all papers to TAC at his earliest opportunity. Michael advised that some papers are here for handover today, and the rest will be sent asap, however some were store off-site. Dean Lisson advised Michael that for the full investigation of this matter to be resolved, we need all papers/files/invoices etc. Decision on payments outstanding to Michael/SMC will be made only when we have all papers and are satisfied that the payments are properly supported.
David Tonkin queried Michael regarding the $23,556 cheque- who was it paid to – and who wrote the cheque. Michael advised the he wrote the cheque, and must have mistakenly put his name on it.
David Tonkin queried the invoices which were purported to be from Port Lincoln Hotel – Michael advised he prepared those for his reimbursement and for his internal accounting purposes.
Dean Lisson then queried Michael re the $23,556 cheque – how did this happen if Michael wrote the cheque, how could he not know who it was made payable to – Michael replied saying he did not know, but that a number of his clients bank with the CBA. Michael then left the meeting.
The course of the trial
The trial commenced on 20 November 2012. The prosecution tendered various documents in opening, some of which were admitted by the Magistrate over objection by the defendant on the ground of relevance. The prosecution called Mr Pennington, Mr Lisson, Ms Mullen, Ms Wolfendale, Ms Murphy and Michael Kosch from the Port Lincoln Hotel and Australian Securities and Investments Commission (ASIC) investigator Michael Clissold.
At the close of the prosecution case on 23 November 2012, the defendant made a no case to answer submission. During argument on the submission, the prosecution applied for permission to amend the particulars to counts 1 and 2 in the Information.
On 19 March 2013, the Magistrate ruled that there was a case to answer and granted permission to the prosecution to amend the particulars to counts 1 and 2 on the Information.
On 27 May 2013, when the trial resumed, Ms Spicer was interviewed by Mr Clissold. Counsel for the prosecution decided not to call her as a prosecution witness because he formed the view that she was not a truthful or credible witness. Ms Spicer was then called as the only witness for the defendant.
Mr Pennington gave evidence that he lived at Middleton but travelled to Adelaide two to three times a week on average. He met with the defendant at regular intervals in connection with their common business in the South Australian abalone industry. On those occasions, if there was a payment to be made by ACA, the defendant would as Mr Pennington to sign a cheque.
Mr Pennington was asked whether there were any occasions on which he signed a blank cheque. He said that, to the best of his memory, there were two occasions on which this occurred and there may have been two cheques on each occasion. In each case, he was told by the defendant what the cheque was for. He recalled two cheques in relation to the Convention. Mr Pennington gave the following evidence:
QYou’ve said that in every instance you were told what the cheque was for, by Michael. Can you recall any of the specific purposes or specific type of expenses.
AIn relation to the convention, yes, I remember him discussing with me the need to pay for security at the convention, and he did discuss with me the fact that his staff were providing that security.
QYes.
AI think he also mentioned that he had to pay the hotel.[8]
[8] T319.
Mr Lisson gave evidence concerning ACA practices. He also gave evidence of his telephone discussions with the defendant on 18 and 19 June 2009 and of the discussion at the board meeting on 2 July 2009.
Ms Mullen gave evidence that she received financial documents relating to the ACA matters from the defendant sometime after the board meeting on 18 March 2009. She said that she received a number of files relating particularly to the Convention on 15 June 2009. She said in evidence-in-chief that she received copies of two invoices being purported PLH invoices 8143 and 8193 as part of the files received from the defendant on 15 June 2009.
In cross-examination, Ms Mullen was asked about the receipt of Port Lincoln Hotel invoices generally and said that she could not be sure whether Port Lincoln Hotel invoices were in the first bundle received in March 2009 or the second lot of information received in June 2009. Later in cross-examination, it was put to her that she had said in evidence that the first time that she saw the two purported PLH invoices was around June 2009 and she agreed.
In cross-examination, it was put to Ms Mullen that she received the ACA electronic MYOB file from the defendant and she agreed. She also gave evidence that she prepared a reconciliation around September 2009 as between ACA and SMC. It was put to her that she had not provided the MYOB file or the reconciliation to ASIC and she agreed.
Ms Wolfendale gave evidence that she worked for SMC between March 2008 and August 2009 as a trainee in general administration. She attended the Convention in Port Lincoln with her then partner, Mr Taylor. She said that there was no arrangement made for Mr Taylor to do work for SMC at the Convention or to be paid and that he was not paid. In cross-examination she said that there were only two occasions when Mr Taylor helped out at the Convention, namely handing out name badges at the registration and driving delegates to an event at a winery one evening. She said that otherwise they were both allowed to go and explore Port Lincoln so that they were not at the Convention for the “day-to-day stuff”. She did not receive any directions from the defendant to ensure that members of the public did not come into the Convention. She said that she recalled having seen blank cheques signed by Mr Pennington. She did not recall how many cheques, but said that it would have been five at most.
Ms Murphy and Mr Kosch were employed by the Port Lincoln Hotel in 2008. Ms Murphy gave evidence that she was responsible for the bookings for the Convention and that she dealt with the defendant in making the arrangements. She said that the Hotel did not require ACA to arrange security for the Convention and she did not inform the defendant that it did. The only time security was arranged was for parties, such as eighteenth or twenty-first birthdays, in which case the Hotel itself provided the security and then charged the person holding the event. Mr Kosch gave evidence that purported PLH invoices 8143 and 8193 were not genuine invoices produced by the Port Lincoln Hotel.
Mr Clissold gave evidence that he is employed by ASIC and in 2009 was an investigator. In cross-examination, he agreed that he did not obtain the reconciliation prepared by Ms Mullen and said that it did not seem to have relevance to his investigation. In cross-examination, he agreed that he did not seek to interview Ms Spicer or Mr Taylor.
The defendant did not give evidence but called Ms Spicer as a witness. She gave evidence that she wrote the details on each of ACA cheque 89 and 90 after they had been signed in blank by Mr Pennington and the defendant.
Ms Spicer gave evidence that she created purported PLH invoice 8143 on her own initiative without reference to the defendant. It was her unilateral decision to complete ACA cheque 89 by filling in the amount of $4,950 and the payee as SMC without reference to the defendant. She calculated that $500 per day for three days should be paid for work done by each of Ms Wolfendale, Mr Taylor and herself at the Convention making a total of $4,500 plus GST. In cross-examination, she said that she intended at the time that SMC would pay these amounts as bonuses to those three persons but this did not eventuate.

Ms Spicer gave evidence that she created purported PLH invoice 8193 on her own initiative without reference to the defendant. It was her unilateral decision to complete ACA cheque 90 by filling in the amount of $27,475.17 and the payee as SMC without reference to the defendant. She created SMC invoice 1465 as well as invoices 1466 and 1467 on her own initiative without reference to the defendant.
Ms Spicer gave evidence that, after she created the two purported PLH invoices, she put them in a drawer because they were not meant to go anywhere outside the office and were for her internal records. She never sent copies of those documents to any other person.
Ms Spicer gave evidence that, when she drew ACA cheque 90 in November 2008, she undertook a reconciliation of the Port Lincoln Hotel statement that had come in. In cross-examination, she said that the statement she relied on was similar to a statement from the Hotel dated 22 September 2009. From the statement she concluded that ACA owed SMC $23,056. She was unaware of the payment by ACA of $23,556.54 banked into the defendant’s personal bank account in October 2008.
Ms Spicer gave evidence that 2008 had been a stressful year because her mother was admitted unexpectedly to hospital and died in late July 2008 after being in hospital for two or three weeks. She was the executor of her mother’s estate. At one point, Ms Spicer was admitted to hospital for tests for heart pains.
Ms Spicer gave evidence that she undertook a reconciliation in May or June 2009 and realised that she had made a mistake in paying $23,056 from ACA to SMC in November 2008 because it had already been paid in October 2008. She informed the defendant of the mistake and said that they needed to reimburse the money to ACA. She had overlooked the payment of $23,556.54 by way of cheque 78 because it had been paid into the defendant’s personal bank account. She also realised that she had not paid any money to Ms Wolfendale, Mr Taylor or herself and that the sum of $4,950 should be paid back to ACA as well. She also told the defendant about the two purported PLH invoices that had been created for internal purposes and had been supposed to stay in the SMC office.
Ms Spicer gave evidence that she created SMC invoice 1510 for $29,700. In cross-examination, she said that she based the amount on a record given to her by the defendant which was a breakdown of hours. She said that she no longer had that record.
In evidence-in-chief, Ms Spicer said that she created the cheques first and later created the invoices and filled in the cheque butts. In cross-examination, she said that she created the purported PLH invoices at the same time as filling in the cheque butts for ACA cheques 89 and 90. Earlier in cross-examination, she had said that she created the purported PLH invoice 8143 for $4,950 sometime after she wrote out the cheques, but could not say how long after.
In cross-examination, it was put to Ms Spicer that it was not normal procedure for ACA cheques to be signed in blank but rather for cheques to be signed after they had been filled out. This was denied by Ms Spicer, who said the normal procedure was that ACA cheques would be signed in blank.
The Magistrate’s reasons
The Magistrate made detailed findings of fact by reference to the evidence adduced. He accepted Mr Lisson and Ms Mullen as honest and reliable witnesses. In particular, he accepted Mr Lisson’s account of his conversations with the defendant and that the minutes made by Ms Mullen of what was said at the meeting on 2 July 2009 were accurate, albeit not a verbatim account.
In relation to purported PLH invoice 8143, the Magistrate accepted that the figures said to have been calculated by Ms Spicer were plucked out of the air and that her claimed reason for creating purported PLH invoice 8143 as a record for her own purposes was so unlikely as to be rejected. In addition, it did not sit with her explanation that $4,950 was owed not to the Port Lincoln Hotel but to herself, Ms Wolfendale and Mr Taylor for services they provided.
The Magistrate made adverse credit findings concerning Ms Spicer’s evidence. He rejected her explanation as to the creation of purported PLH invoice 8193 and corresponding SMC invoice 1465. He observed that Ms Spicer could not really explain how she calculated the amounts; it would have been very easy for her to ascertain the payments made by ACA for the Port Lincoln Hotel expenses from the ACA cheque book. There was no reason for the creation of purported PLH invoice 8193 given the creation of SMC invoice 1465 in the same amount. It defied belief that Ms Spicer did not discuss this question with the defendant at the time.
The Magistrate rejected Ms Spicer’s evidence that the standard practice was for Mr Pennington and the defendant to sign blank cheques which would subsequently be filled in by either Ms Spicer or Ms Wolfendale. He regarded Ms Spicer’s evidence as inherently unlikely and preferred the evidence given by Ms Wolfendale and Mr Pennington.
The Magistrate said that he formed the view when listening to Ms Spicer’s evidence that she had an appreciation of the issues of significance in the case, that she had a clear recollection on certain matters but not on a large number of other issues and he formed the clear view that she tailored her recollection and evidence to what she believed would best assist the defendant’s case. He did not regard her as honest or reliable and was not prepared to place any weight on her evidence about the cheques being blank when the defendant signed them or the various invoices being completed after the cheques had been completed.
The Magistrate then directed himself that, irrespective of his rejection of Ms Spicer’s evidence, the ultimate question remained whether the prosecution had established each element of the three charges beyond reasonable doubt.
In relation to count 1, the Magistrate referred to Mr Pennington’s evidence that, when he signed a blank cheque, he only did so after the defendant had told him what the cheque would be used for and further that he recalled on one occasion the defendant telling him that a cheque was required to pay for security at the Convention. The Magistrate referred to purported PLH invoice 8143. He also referred to the statements made by the defendant in his email of 2 June 2009 and his written and oral statements to the ACA board on 2 July 2009.
The Magistrate found that purported PLH invoice 8143 was created on or before 17 November 2008 and that the cheque and cheque butt were filled in at the same time as each other. The Magistrate rejected the submission that the defendant was or may have been covering up for Ms Spicer in June and July 2009 when he used language indicating that he produced the false Port Lincoln Hotel invoices.
The Magistrate found that the details on the cheque butt and purported PLH invoice 8143 were completed on the basis of information provided by the defendant and that he prepared or arranged for the preparation of the false invoice to create an apparent but illegitimate explanation for transferring $4,950 from ACA to SMC. When the defendant signed ACA cheque 89, he knew that it was to be used to transfer $4,950 from ACA to SMC to which SMC was not entitled. The explanations given by the defendant in July 2009 that he created the two false invoices for internal purposes and that he had paid three staff for the provision of security were false to the defendant’s knowledge.
In relation to count 2, the Magistrate found that the defendant knew in November 2008 that he had already been reimbursed by ACA for approximately $60,000 which he had paid or then paid to the Port Lincoln Hotel using his credit cards. The defendant’s later explanation in July 2009 that he was unaware at the time of the payment by ACA to him of $23,556.54 by way of cheque 78 was false to his knowledge given that the defendant himself wrote that cheque payable to himself.
The Magistrate found that on 2 June 2009 when he sent his email answering Mr Lisson’s questions, the defendant had SMC invoice 1465 and Mr Lisson and Ms Mullen did not. On 15 June 2009, the defendant gave to Ms Mullen SMC invoice 1465 and this was then referred to in Mr Lisson’s email of 17 June 2009.
The Magistrate referred to the defendant’s admissions on 18 and 19 June 2009 that he had made a big mistake which he regretted, the steps he took to repay $28,006 on 18 June 2009 and to the defendant’s written and oral statements to the ACA board on 2 July 2009.
The Magistrate expressed the view that the only conclusion reasonably open was that, when confronted by the indisputable facts in Mr Lisson’s email of 17 June 2009, the defendant could provide no explanation for what happened and was clutching at straws. His explanation that it was a mistake due to overlooking the reimbursement of $23,556.54 was false to his knowledge. Purported PLH invoice 8193 was given by the defendant to Ms Mullen on 15 June 2009 and he knew that it was false. The explanation that it was created for internal records did not sit with the facts and did not make any sense at all, other than as a desperate and ultimately doomed attempt to explain the payment. The Magistrate rejected the submission made on behalf of the defendant that he used the words he did to protect Ms Spicer.
The Magistrate was satisfied that, when the defendant signed ACA cheque 90, he was aware that $23,056 of the value of the cheque was not due to either himself or SMC. What he described to Mr Lisson as a big mistake for which he was sorry was the fact that he had knowingly authorised the transfer of this sum from ACA to SMC knowing it was not entitled to the amount.
The Magistrate was satisfied that SMC was not entitled to the sum of $23,056 when ACA cheque 90 was signed by the defendant. SMC invoice 1465 was created when or before ACA cheque 90 was prepared and the defendant signed the cheque knowing that part of it related to SMC invoice 1465 and was not owed by ACA to SMC. The defendant’s action in signing the cheque was dishonest and, as a consequence of that dishonest action, SMC gained a financial advantage and the defendant intended that result.
In relation to count 3, the Magistrate was satisfied that the requests by Mr Lisson to the defendant for information concerning the payment to the Port Lincoln Hotel of $4,500 for security was an issue concerning the affairs of ACA, as was the defendant’s response that the “the Port Lincoln Hotel required us to pay for security officers/measures around the area in which we held the Convention”. The Magistrate was satisfied that this explanation was false to the knowledge of the defendant when he made it.
The Magistrate found that the questions by Mr Lisson concerning SMC invoice 1465 and the defendant’s response also related to the affairs of ACA. The Magistrate found that the response that the invoice was for reimbursement of costs paid by SMC to the Port Lincoln Hotel for venue hire, catering costs and miscellaneous costs was false to the knowledge of the defendant.
Elements of the offences
Section 184(2)(a) of the Corporations Act 2001 (Cth) at material times provided:
(2)A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation;
The Magistrate identified three elements of this offence:
1.     the defendant at the relevant time was a director of a corporation;
2.     the defendant used his position as a director of the corporation to do      an act;
3.     the act was done dishonestly with the intention of directly or indirectly gaining an advantage for the director or someone else.
The Magistrate observed that there was no issue in relation to the first two elements. The defendant makes no complaint in that regard and does not take issue with the formulation of the elements by the Magistrate. In a technical sense, it might be thought that the Magistrate conflated elements of dishonesty and using a position with the intention of gaining an advantage for another. However, the defendant does not complain about that conflation and in a practical sense the real issue at trial was a single composite issue whether the defendant acted dishonestly with the intention of gaining an advantage for SMC.
Section 1309(1) of the Corporations Act 2001 (Cth) at material times provided:
(1)An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:
(a)     a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or
(b)     if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation—an auditor of the other corporation; or
(c)     an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market;
being information, whether in documentary or any other form, that relates to the affairs of the corporation and that, to the knowledge of the officer or employee:
(d)     is false or misleading in a material particular; or
(e)     has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;
is guilty of an offence.
The Magistrate identified the four elements of this offence:
1.     the defendant at the relevant time was an officer of a corporation;
2.     the defendant gave information to a director of the corporation;
3.     the information related to the affairs of the corporation; and
4.     the information was, to the defendant’s knowledge, false or    misleading in a material particular.
The Magistrate observed that there was no issue in relation to the first two elements. The defendant makes no complaint in this regard and does not take issue with the formulation of the elements by the Magistrate. Again, in a technical sense it might be thought that the Magistrate conflated elements of the information being false or misleading in a material particular and that the defendant knew that it was false or misleading in a material particular. However, the defendant does not complain about that conflation and in a practical sense the issue at trial was not as to the objective falsity of the information but as to the defendant’s knowledge thereof.
Conviction appeal
Grounds of appeal
The Notice of Appeal contains 21 grounds of appeal. It is convenient to group them into six categories, namely that the Magistrate erred in:
1.permitting the prosecution to amend the Information on 19 March 2013 and run a case outside the particulars in relation to counts 1 and 2;[9]
2.respects impacting both counts 1 and 2;[10]
3.his findings relating to count 1;[11]
4.his findings relating to count 2;[12]
5.his assessment of Ms Spicer’s evidence;[13]
6.his findings relating to count 3.[14]
[9] Grounds 3 and 4A.
[10] Grounds 1, 4, 4B, 4D and 5. See also general Grounds 12, 13 and 14.
[11] Grounds 1, 4B, 4C and 8. See also general Grounds 12, 13 and 14.
[12] Grounds 1, 4B, 9, 10, and 11. See also general Grounds 12, 13 and 14.
[13] Grounds 2, 2A and 2C.
[14] Grounds 2B, 6 and 7. See also general Grounds 12, 13 and 14.
Prosecution case outside particulars
At the close of the prosecution case, the defendant submitted that there was no case to answer. One of the grounds of the submission was that there was no case to answer in relation to counts 1 and 2 because the Information proceeded on the basis that ACA cheques 89 and 90 were completed by the time they were signed by the defendant; whereas Mr Pennington’s evidence suggested that they were signed by Mr Pennington and the defendant in blank and the details completed later (by Ms Spicer based on Ms Wolfendale’s recognition of her handwriting).
The trial commenced on the basis of an Information laid on 24 October 2012. The offence details and particulars in relation to counts 1 and 2 were:
Offence
1. On or about the 17^th day of November 2008 at Somerton Park or elsewhere in the State of South Australia, the defendant, whilst a director, other officer or employee of a corporation, namely Abalone Council of Australia Ltd A.C.N. 108 092 271 (“ACA Ltd”), dishonestly used his position as a director, other officer or employee of that company with the intention of directly or indirectly gaining an advantage for another person, namely Strategic Management Consultants Pty Ltd A.C.N. 062 883 989 (“SMC Pty Ltd”); contrary to section 184(2)(a) of the Corporations Act 2001 (Cth).
Particulars
The defendant signed an ACA Ltd cheque in the amount of $4,950 payable to SMC Pty Ltd, purportedly for reimbursement of monies either he, or SMC Pty Ltd, had paid for security services provided at the 4^th National Abalone Convention in Port Lincoln, when he knew that neither he, nor SMC Pty Ltd, had paid for any such security services so as to justify the payment.
Offence
2. On or about the 24^th day of November 2008 at Somerton Park or elsewhere in the State of South Australia, the defendant, whilst a director, or other officer or employee of a corporation, namely the Abalone Council of Australia Ltd A.C.N. 108 092 271 (“ACA Ltd”), dishonestly used his position as a director, other officer or employee of that company with the intention of directly or indirectly gaining an advantage for another person, namely Strategic Management Consultants Pty Ltd A.C.N. 062 883 989 (“SMC Pty Ltd”); contrary to section 184(2)(a) of the Corporations Act 2001 (Cth).
Particulars
The defendant signed an ACA Ltd cheque in the total amount of $27,475.17 payable to SMC Pty Ltd, of which an amount of $23,056 was purportedly for reimbursement of monies either he, or SMC Pty Ltd, had paid to the Port Lincoln Hotel for expenses related to the 4^th National Abalone Convention in Port Lincoln, when he knew that neither he, nor SMC Pty Ltd, had paid those expenses so as to justify the payment.
Before that Information, two earlier Informations had been laid. The first was laid on 23 September 2010 and the second on 21 June 2011. The charge of the offence in respect of counts 1 and 2 was identical in the June 2011 and October 2012 Informations. However, the particulars differed. The particulars given in the June 2011 Information did not say or imply that the cheques were completed when they were signed by the defendant. Those particulars were as follows:
Count 1
The defendant caused $4,950 to be paid by ACA Ltd to SMC Pty Ltd, a company of which the defendant was a director and shareholder by co-signing a cheque in respect of that payment, when he knew that ACA Ltd was not liable to SMC Pty Ltd to make that payment.
Count 2
The defendant caused $23,056 to be paid by ACA Ltd to SMC Pty Ltd, a company of which the defendant was a director and shareholder by co-signing a cheque which included that payment, when he knew that ACA Ltd was not liable to SMC Pty Ltd to make that payment.
During the prosecution opening at trial on 20 November 2012, the prosecutor informed the Magistrate that it was the prosecution case that each of ACA cheques 89 and 90 had the payee and amount already filled out when signed by the defendant. The Magistrate inquired what would be the position if the cheque details were blank when the defendant signed them. Counsel for the prosecution initially responded that he did not think in that event the prosecution could establish that, at the time of signing, each cheque was going to be used for the purpose for which it was ultimately used.
Counsel for the defendant then addressed the Magistrate on the fact that his understanding was that no witness was going to come to Court to say that the cheques had been completed before being signed by the defendant and that the evidence to be adduced could not sustain the prosecution case in this respect. Counsel for the prosecution then made the following statement to the Magistrate:
Can I put it this way, just so that there is no misunderstanding. What we say is that we can prove that when he signed the cheque that he knew that it was going to be for the bogus expense that he had drafted the invoice for. Whether it’s filled out at the time or not, if the only reasonable inference is that he knew what it would be used for, then that would be sufficient, even if we can’t prove that it was particularly filled out; but we say you can draw the inference from a number of pieces of circumstantial evidence. But even if you say ‘I’m not sure that it was filled out when he signed it, but I’m sure that at that time he knew that it was going to be used for that purpose,’ that would be sufficient.[15]
[15] T83.

At the conclusion of the prosecution case on 23 November 2012, the defendant made a no case to answer submission. During the hearing of that submission, the prosecution applied for permission to amend the particulars to counts 1 and 2 to insert the words “which was at the time, or subsequently, written out” after the word “cheque” in each of counts 1 and 2. The defendant opposed permission to amend and applied for dismissal of the case on the ground that the case as particularised and opened was substantially different from the case that the prosecution now wished to advance because the case put in the particulars and in the prosecution opening was that there was no suggestion that the cheques were blank when signed by the defendant.
On 19 March 2013, the Magistrate gave reasons for a ruling giving permission to the prosecution to amend the particulars as sought and dismissing the application to dismiss the case on the basis that there was no case to answer. The Magistrate referred to section 181(2) of the Summary Procedure Act 1921 (SA) which permits the Court to amend an Information to cure a defect if the defendant has not been substantially prejudiced by the defect. The Magistrate referred to the statement by counsel for the prosecution extracted at [97] above and observed that the interchange occurred before any witnesses were called. The Magistrate observed that it had not been submitted that the trial would have been conducted differently had the particulars been in the form sought by the prosecutor and concluded that there was no unfairness in the conduct of the trial occasioned by the departure from the particulars as they currently stood nor would there be substantial prejudice by allowing the amendment.
On appeal, the defendant contends that his defence had been run on the basis of the case opened in that critical prosecution witnesses had been cross‑examined on the basis that the prosecution was required to prove that the cheques had been filled out when they were signed by the defendant. The defendant identifies cross-examination of Ms Wolfendale, Ms Mullen and Mr Lisson on three topics as having been materially affected.
The first contention is that Ms Wolfendale was cross‑examined about office arrangements and the cheques in question and the defendant was entitled to proceed on the basis that her evidence that she did not know whether the cheques were blank or filled out when the defendant signed them supported the defendant’s case and undermined the prosecution case. This does not amount to a suggestion that the cross-examination would have been conducted differently if the amended particulars had been contained in the Information at that time.
Secondly, the defendant contends that cross-examination would have been pursued concerning Ms Mullen’s evidence on the topic of the ACA minutes. This refers to Ms Mullen’s evidence that the minutes of the board meeting on 2 July 2009 were substantially accurate in relation to the discussions when the defendant was present. However, it is not identified how the cross-examination would have differed or why. When the application was made to the Magistrate for permission to amend, this prejudice was not advanced by the defendant. Nor was there any application by the defendant after the Magistrate’s ruling for Ms Mullen to be re-called for further cross-examination.
Thirdly, the defendant contends that Mr Lisson would have been cross‑examined on the topic of how he knew that ACA cheque 90 had been drawn some weeks before the creation of SMC invoice 1465. This refers to a passage from Mr Lisson’s 17 June 2009 email extracted at [39] above in which Mr Lisson asked “Why was Chq #90 drawn some weeks prior to the creation of invoice #1465”. On their face, the cheque was drawn on 24 November 2008 whereas the invoice was dated 21 November 2008. However, it is not identified by the defendant why the decision whether to cross-examine Mr Lisson on that statement was connected with the question whether the cheque was completed when signed by the defendant. If the statement by Mr Lisson was material to the defence, it was equally material regardless of whether the cheque was signed by the defendant in blank. The defendant suggests on appeal that Mr Lisson’s statement must have been based on the MYOB file in his possession but, if SMC invoice 1465 was created using MYOB software, it would have been in SMC’s MYOB file and not ACA’s MYOB file. This particular prejudice was not suggested by the defendant to the Magistrate in opposing permission to amend. Nor did the defendant apply after the ruling to have Mr Lisson re-called for further cross-examination.
Insofar as the defendant relies upon the manner in which the prosecution case was advanced at trial as opposed to the Information, as appears from the passage extracted at [97] above, counsel for the prosecution made it plain before evidence was called that the prosecution case encompassed the possibility that ACA cheques 89 and 90 were blank when signed by the defendant.
The defendant has not established any error by the Magistrate in granting permission to amend or permitting the prosecution to run a case on the basis that the defendant knew the purpose for which the cheques were drawn regardless of potentially having been signed by him in blank.
Prosecution case on counts 1 and 2
The defendant contends that the Magistrate erred in the course of reaching his conclusion, and in his final conclusion, that the defendant acted dishonestly with the intention of gaining an advantage for SMC. The defendant’s complaints in this regard may be summarised that the Magistrate erred in:
1.finding that the defendant did not sign blank cheques;[16]
2.failing to accept the defendant’s no case to answer submission on the basis that there was no evidence to prove when the defendant had signed the cheques and on the basis that the prosecution had failed to call Ms Spicer;[17]
3.failing to direct himself as to the caution required in drawing inferences from the defendant’s subsequent conduct after lapse of a significant period of time and further that the Magistrate ought to have allowed a reasonable possibility that, in his subsequent conduct, the defendant was seeking to protect Ms Spicer or was using the first person grammatical inflection when referring to SMC;[18]
4.admitting irrelevant evidence, being all documents except ACA cheques 89 and 90, their cheque butts, bank statements showing payment of the cheques and invoices in respect of the payments;[19]
5.failing to consider the defendant’s defence of honest claim of right.[20]
Finding about signing blank cheques
[16] Ground 1.
[17] Ground 4B.
[18] Ground 5.
[19] Ground 4.
[20] Ground 4D.
The defendant contends that the Magistrate made a finding at [64] of his reasons for judgment that the defendant did not sign blank cheques.
Paragraph [64] of the Magistrate’s reasons for judgment was part of a section appearing under the heading “The Witnesses”. The Magistrate had addressed the evidence given by Mr Lisson and Ms Mullen. At [64] to [66], he addressed the evidence of Ms Wolfendale. He was yet to address the evidence of Mr Pennington. At [64], the Magistrate was merely reciting Ms Wolfendale’s evidence. The relevant passage is italicised in the paragraph as follows:
She said that in her time with SMC she saw perhaps at most five ACA cheques in the ACA cheque book which were blank apart from P’s signature however she never saw a blank cheque signed by both the defendant and P and that the defendant did not sign blank cheques.
The Magistrate did not make a finding in that paragraph, or indeed elsewhere, that the defendant did not sign blank cheques. On the contrary, he accurately summarised Mr Pennington’s evidence that there were a couple of occasions on which they both signed a cheque in blank, and this included a cheque required to pay staff for security at the Convention and a cheque required to pay the Port Lincoln Hotel. When the Magistrate came to make factual findings in relation to count 1 and count 2 at [92] to [121], he did not find that ACA cheque 89 or 90 had been completed when signed by the defendant but rather found that the defendant knew their intended purpose.
No case to answer submission
The defendant contends that the Magistrate failed to:
1.     hold the prosecution to its case as opened;
2.     have regard to the failure of the prosecution to call Ms Spicer and draw appropriate inferences; or
3.     properly analyse the evidence actually adduced by the prosecution against the charges as particularised and opened.
The defendant does not make additional submissions on appeal in relation to this ground, but adopts the submissions put to the Magistrate on the no case to answer submission.
Insofar as the defendant complains that the Magistrate permitted the prosecution to amend the particulars of the Information or to run a case encompassing ACA cheques 89 and 90 having been signed by the defendant in blank, I have already addressed that complaint.
Insofar as the defendant complains that the Magistrate failed to have regard to the fact that the prosecution did not call Ms Spicer, it was put to the Magistrate by the defendant during the no case to answer submissions that the prosecution case as to the defendant’s state of mind was a circumstantial case and that it was not possible to attain the requisite standard of proof beyond reasonable doubt in respect to his state of mind in circumstances in which a potential witness who was highly likely to have direct knowledge of the transactions, documents and the defendant’s state of mind had not been called as a witness. The Magistrate addressed this submission in his no case to answer ruling at [33] in the following terms:
...On the face of it Ms Spicer could shed light on the circumstances and timing of the defendant’s signing of the cheques subject to counts one and two. There may be other relevant evidence she could also give. However at this stage of the case the central issue for me is whether the evidence led by the prosecution and the inferences reasonably open from it are capable of establishing each element of the offence charged to the requisite level and I have concluded that it does. I am not persuaded that the failure by the prosecution to call Ms Spicer who I understand they have not sought to interview or take a statement from renders the proceedings against the defendant unfair or the inferences sought to be relied upon by the prosecution so unreliable as to cause me to direct myself in accordance with what is referred to as a Prasad direction.
If the evidence adduced by the prosecution established a case to answer on counts 1 and 2, and in particular the necessary mental element of the offences, the fact that the prosecution did not call Ms Spicer did not entail that the Magistrate could not be satisfied beyond reasonable doubt as to the defendant’s state of mind. The Magistrate was correct in his analysis of the effect of the absence of evidence from Ms Spicer as part of the prosecution case.
I observe for completeness that, after the Magistrate had ruled that there was a case to answer, on 27 May 2013 Ms Spicer was interviewed by Mr Clissold and the solicitor for the prosecution. Counsel for the defendant invited the prosecution to call her as a witness. Counsel for the prosecution informed the Magistrate that he had formed the clear view that the evidence Ms Spicer would give if called as a witness by the prosecution would not be credible or truthful and that the prosecution did not intend to call her as a witness. While some criticism was made by the defendant on appeal of the view formed by counsel for the prosecution, there is no basis to doubt that the prosecutor formed that view genuinely after careful consideration of the issue. In light of the evidence subsequently given by Ms Spicer when called by the defendant, it is apparent that, if Ms Spicer had been interviewed by ASIC earlier, the same view would have been taken by the prosecution of her evidence.
The balance of the submissions by the defendant that the Magistrate ought to have found that there was no case to answer raises the same considerations as the contention that, at the conclusion of the case, the Magistrate ought to have held that the prosecution had not proved the requisite mental element beyond reasonable doubt. I consider that contention in respect of counts 1 and 2 separately below.
Caution in drawing inferences from subsequent conduct
In finding counts 1 and 2 proved, the Magistrate relied in part on the defendant’s statements in June and July 2009. The defendant contends that the Magistrate should have directed himself that caution was required before drawing inferences from subsequent conduct by the defendant. The defendant refers to the State of Western Australia v Rayney (No 3).[21]In that case, the prosecution relied upon the accused’s conduct over the months following the disappearance and death of his wife as being more consistent with the conduct of a person involved in her death than an innocent husband and father. Martin AJ said that:
...in the special and complex circumstances under consideration, great caution must be exercised before drawing the inference that particular conduct, including statements, points in the direction of guilt.[22]
[21] [2012] WASC 404 at [657]-[666].
[22] [2012] WASC 404 at [665].
The reliance by the prosecution in the present case upon the statements by the defendant in June and July 2009 was quite different from the conduct of the accused in Rayney or the circumstances contemplated by Martin AJ. The defendant made statements to ACA which directly related to both his conduct and his state of mind in November 2008. The Magistrate gave careful consideration to those statements and to the extensive submissions made by the defendant’s counsel as to the meaning and explanation for those statements. It is apparent that the Magistrate did exercise appropriate caution in having regard to those statements.
The defendant contends that the Magistrate ought to have allowed the reasonable possibility that the defendant was seeking to protect Ms Spicer in his subsequent conduct or in effect, that the defendant was deliberately accepting responsibility to shield her from criticism by ACA. The Magistrate separately and explicitly rejected the submission put to him that the defendant made the statements to protect Ms Spicer in relation to each of count 1 and count 2. It was open to the Magistrate to do so.
The structure and content of the statements made by the defendant in June and July 2009 do not suggest that he was attempting to shield Ms Spicer. Given that he was a director and Chairman of the board of ACA and Ms Spicer held no position with ACA, it is inherently unlikely that the defendant would himself have admitted that it was his own responsibility if he were innocent and it had been Ms Spicer’s responsibility. In addition, the Magistrate did not rely just upon the defendant’s statements in June and July 2009 but upon the whole of the circumstances including the events in and documents relating to the period September to November 2008.
The defendant contends that there was a reasonable possibility that his references to himself in his statement to the board should be understood as a reference to SMC. I reject that contention. The defendant’s whole statement carefully distinguished between SMC and himself and was given in the context of a personal explanation for his personal conduct impacting his position as a director of ACA.
Irrelevant evidence
At trial, the prosecution tendered a folder of ACA documents including its constitution, board minutes, emails between Mr Lisson and Mr Tokley in May and June 2009 and Mr Tokley’s letter and formal statement of June and July 2009. The defendant objected to the tender of these documents on the ground of relevance. The Magistrate ruled that the documents were relevant.
No error has been established in the Magistrate’s ruling. The defendant contended before the Magistrate that the only relevant documents in the case were the two cheques, bank statements and invoices relating to them the subject of counts 1 and 2. On appeal, the defendant accepts that the two cheque butts for the cheques were also relevant but otherwise repeats the submission put to the Magistrate. The constitution and board minutes gave context to the transactions and events of September to November 2009. The defendant’s statements between May and July 2009 were relevant for the reasons just given.
At trial, the defendant made a similar objection to the admission of other folders or documents tendered by the prosecution without making detailed submissions. It has not been demonstrated that the Magistrate erred in admitting any of those documents. On the contrary, they were relevant and properly admitted.
Failure to consider defence of claim of right
Division 9 of The Criminal Code[23] is entitled “Circumstances involving mistake or ignorance”. Section 9.5 of The Criminal Code relates to claims of right and provides:
Claim of Right
(1)A person is not criminally responsible for an offence that has a physical element relating to property if:
(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b) the existence of that right would negate a fault element for any physical element of the offence.
(2)A person is not criminally responsible for any other offence arising necessarily out of the exercise of the proprietary or possessory right that he or she mistakenly believes to exist.
(3)This section does not negate criminal responsibility for an offence relating to the use of force against a person.
[23] Schedule to the Criminal Code Act 1995 (Cth).
The offence created by section 184(2)(a) of the Corporations Act 2001 (Cth) is not an offence that has a physical element relating to property within the meaning of section 9.5(1) of The Criminal Code. It involves the use of a director’s position dishonestly to gain an advantage for someone else. In the particular circumstances of this case, there was no “property” of ACA which was the subject of any belief by the defendant about a proprietary or possessory right (mistaken or otherwise). ACA had no property in the monies in its bank account as its relationship with its banker was solely that of creditor and debtor.[24] Even if the defendant believed that he was entitled, whether in contract or quantum meruit, to render an account to ACA for general work performed by SMC for ACA,[25] there was no exercise or purported exercise by the defendant of a proprietary or possessory right. It is not clear that the defendant pursues this ground on appeal, but in any event clause 9.5 has no application to the charges against the defendant.
Other entitlements
[24] Foley v Hill (1848) 2 HL Cas 28; Joachimsom v Swiss Bank Corporation [1921] 3 KB 110.
[25] Such a belief would not negate the mental element of the offence because it could not justify taking ACA’s money on account of security expenses or venue hire, etc.
The defendant contends that the Magistrate erred by not concluding that it was a reasonable possibility that the defendant genuinely believed that ACA owed to SMC more than $28,006 for other work undertaken by the defendant and his staff in connection with the Convention and in turn in failing to conclude that such a belief would have negated the necessary mental element for counts 1 and 2.
The defendant refers to SMC invoice 1510 for $29,700 for attendance and administration at the Convention. On 19 May 2009, the defendant sent to the ACA directors a more detailed version of SMC invoice 1510 in which he showed 126 hours spent by himself, 148 hours spent by each of Ms Spicer and Ms Wolfendale and 82 hours spent by Mr Taylor. The defendant did not adduce any evidence showing how those hours were calculated or what hourly rates were used for each person to arrive at the total. Applying the rates of $80 per hour and $20 per hour agreed in 2005 does not give the total of the invoice. Ms Spicer gave evidence that she had received a spreadsheet from the defendant giving the hours, but the spreadsheet was not tendered and no evidence was adduced concerning it.

The defendant contends that the Magistrate failed to address the correct proposition, which was whether there was a reasonable possibility that Ms Spicer’s evidence that the defendant was ignorant about the payments being illegitimate was accurate. This contention confuses two separate matters. One matter is the Magistrate’s assessment of Ms Spicer’s credit and his conclusion that she was not an honest or reliable witness. In that respect, it has not been demonstrated that the Magistrate erred and there was ample basis for him to reach that conclusion. A separate matter is whether, given that the prosecution case was a circumstantial case in relation to the defendant’s state of mind, there was a reasonable hypothesis consistent with innocence available on the evidence. On that question, for the reasons already given, the Magistrate did not err and there was ample material for him to find the elements of counts 1 and 2 proved beyond reasonable doubt and to exclude alternative hypotheses consistent with innocence as reasonable possibilities.
The defendant invites me to undertake my own review of Ms Spicer’s evidence to form a view whether she was an honest and reliable witness and to assess her evidence. The defendant contends that the Magistrate did not have an advantage assessing Ms Spicer give her evidence.
The Magistrate had a very considerable advantage in hearing and seeing Ms Spicer give her evidence. That would necessarily have been a significant factor contributing to his ultimate assessment of her as not being a witness of truth. It has not been demonstrated that the Magistrate misused the advantage which he had in assessing Ms Spicer’s evidence or that the findings he made were improbable or contrary to compelling inferences.[40]
[40] See Heperu Pty Ltd v Belle [2009] NSWCA 252, (2009) 76 NSWLR 230 at [48]-[50] per Allsop P (Campbell AJA and Handley AJA agreeing) applying Fox v Percy (2003) 214 CLR 118.
In any event, I have conducted my own review of Ms Spicer’s evidence based on reading the transcript and the exhibits to which she referred in giving her evidence. My own assessment is that Ms Spicer’s evidence that the defendant was not aware in November 2008 of the details intended to be or actually completed on ACA cheques 89 and 90 and of SMC invoice 1465 should be rejected. I consider that Ms Spicer’s explanation for the payments and for creation of the invoices should also be rejected. Ms Spicer’s evidence that it was normal procedure that ACA cheques would be signed in blank was inconsistent with the evidence of Mr Pennington and Ms Wolfendale. Mr Pennington’s unchallenged evidence was that on average he travelled to Adelaide two to three times a week. There would be no reason to adopt a general practice, as opposed to an isolated incidence, of Mr Pennington signing blank cheques, nor of the defendant signing blank cheques. Such a practice would involve a derogation of their duties as directors and signatories to the bank account of ACA. The Magistrate was entitled to prefer the evidence of Mr Pennington and Ms Wolfendale and to consider that Ms Spicer’s evidence on this topic seriously undermined her credit.
Ms Spicer wrote SMC as the payee onto ACA cheque 89 but showed the Port Lincoln Hotel as the payee on the cheque butt. Ms Spicer was not able to satisfactorily explain this discrepancy. Ms Spicer gave evidence that she completed the details on the cheque butts sometime after completing ACA cheques 89 and 90. She also gave evidence that she did not create the purported PLH invoices or SMC invoice 1465 until after she completed the details on those cheques. This is inherently very unlikely. Without completing the cheque butts at the same time as the cheques, Ms Spicer would not necessarily later recall the amount of the cheque or the payee or purpose of it. It is not credible that Ms Spicer somehow discerned the correct amount of ACA cheque 90 as being $27,475.17 if SMC invoices 1465, 1466 and 1467 had not already been created for their separate sums amounting in total to $27,475.17.
Overall, Ms Spicer’s evidence explaining why SMC invoice 1465 and the purported PLH invoices were not created by the time ACA cheques 89 and 90 were signed by the defendant, why the cheque butts were not completed at the same time as the cheques and why the defendant was ignorant of the relevant transactions was strained beyond credulity.
Count 3
The defendant contends that the Magistrate erred in finding count 3 proved beyond reasonable doubt. In summary, the defendant contends that the Magistrate erred in:
1.concluding that the statements made by the defendant in his email of 2 June 2009 concerned the affairs of ACA;[41]
2.failing to take into account the absence of examination-in-chief of Mr Lisson and Ms Mullen on what documents they received and when from the defendant;[42] and
3.concluding that the prosecution had proved beyond reasonable doubt that the defendant knew that his email of 2 June 2009 was false or misleading in a material particular.[43]
Affairs of ACA
[41] Ground 7.
[42] Ground 2B.
[43] Ground 6. Grounds 12, 13 and 14 are general grounds subsumed by the specific grounds identified above.
The defendant contends that the information contained in the defendant’s email of 2 June 2009 concerned the affairs of SMC and not the affairs of ACA.
The defendant’s email responded to Mr Lisson’s email of 25 May 2009. Mr Lisson referred to ACA’s MYOB file and asked questions in relation to that file. The ACA MYOB file had been provided by the defendant to Ms Mullen in the defendant’s capacity as Chair and Executive Director of ACA. The questions relating to the ACA MYOB file related to the affairs of ACA.
One material question asked by Mr Lisson related to an expense recorded in ACA’s MYOB file as an ACA expense and recorded as a payment by ACA to the Port Lincoln Hotel for $4,500 (exclusive of GST) for “security”. The defendant’s response in relation to this related directly to the affairs of ACA.
In his response, the defendant said:
...the Port Lincoln Hotel required us to pay for security officers/measures around the area in which we held the Convention...
The references to “us” and “we” in context were manifestly to ACA and not to SMC.
The other material question asked by Mr Lisson concerned SMC invoice 1465 recorded in ACA’s MYOB file as having been paid by ACA on 24 November 2008. This also related directly to the affairs of ACA. The defendant’s response in relation to SMC invoice 1465 was that the invoices were with the Convention files with which he had yet not finished. He said that the files would be sent to the Tasmanian Abalone Council office once completed. It is apparent that he regarded these files as belonging to and relating to the affairs of ACA and they did so in fact.
When Mr Lisson and Ms Mullen received documents
The defendant contends that the Magistrate ought to have inferred that Mr Lisson had access to ACA’s MYOB file and that the defendant was responding on 2 June 2009 to Mr Lisson’s questions to the best of his ability based on copies of invoices he did not know to be in error.
The defendant’s contention proceeds on the basis that he had copies of the purported PLH invoices and of SMC invoice 1465 at the time of his 2 June 2009 response. For the reasons given at [137] to [139] and [144] to [150] above, the Magistrate had ample basis to find that the defendant knew on 2 June 2009 that the purported PLH invoices were false and that SMC was not entitled to payment of the amounts comprised in ACA cheques 89 and 90.
The Magistrate was in any event justified in finding that the defendant provided the purported PLH invoices to Ms Mullen on 15 June 2009. It is clear from the evidence of Mr Lisson and Ms Mullen and from the contemporaneous emails that the ACA MYOB file was received by the Tasmanian Abalone Council on 18 March 2009 and the relevant SMC and purported PLH invoices were not received until 15 June 2009.
Knowledge email false or misleading
The defendant contends that the Magistrate’s assessment of the contents of the defendant’s 2 June 2009 email was unrealistically exacting and ignored the nature and purpose of the communication, the broad and imprecise nature of the matters raised by Mr Lisson and the relevant background circumstances. I reject that contention. Mr Lisson’s questions were precise and unequivocal, as were the defendant’s answers.
The Magistrate had ample basis to find that the defendant knew on 2 June 2009 that his answers to Mr Lisson’s questions concerning the two payments by ACA were false. In this respect, it is significant that, when confronted on 17 June 2009 with the result of the enquiries made by Ms Mullen of the Port Lincoln Hotel (which the defendant is unlikely to have anticipated), the defendant immediately accepted fault and reimbursed the monies in full to the ACA. Later, by his written and oral statements to the board on 2 July 2009, he did not seek to support or explain as a mistake his earlier explanations given on 2 June 2009 but instead advanced new and inconsistent explanations for his conduct.
The defendant complains that the investigation by ASIC was manifestly inadequate insofar as the ACA MYOB file and the documentary record of the reconciliation undertaken by Ms Mullen were not sought by ASIC or tendered by the prosecution at trial. The defendant makes a recurring complaint concerning the conduct of ASIC and the prosecution in this respect at a more general level than being confined to or specifically relating to count 3.
Ms Mullen and Mr Clissold were cross-examined concerning the reconciliation prepared by Ms Mullen around September 2009. Mr Clissold gave evidence that he considered that the record of the reconciliation did not have relevance to his investigation and he was not challenged or further questioned concerning that topic. Neither witness was asked to produce the record of that reconciliation and no application was made by the defendant for it to be produced. Similarly, Ms Mullen was cross-examined concerning her possession of the ACA MYOB file but she was not asked to produce it and no application was made that it be produced. Given the conduct of the defendant at trial in relation to the record of the reconciliation and the ACA MYOB file, there is no basis for a complaint on appeal that they were not produced.
Conclusion on conviction appeal
The defendant has not established any of his grounds of appeal against conviction. On my independent review of the evidence, taking into account the advantage that the Magistrate had of hearing and seeing the witnesses, I consider that the evidence established beyond reasonable doubt the elements of each of the offences.
Appeal against sentence
On 17 January 2014, the Magistrate sentenced the defendant to imprisonment for two months on count 1, four months on count 2 and one month on count 3. The sentence on count 2 was made cumulative to the sentence on count 1 and the sentence on count 3 was made concurrent with the sentence on count 1.
The defendant appeals against sentence on the grounds that the Magistrate erred in:
1.taking into account as aggravating factors matters that had not been proved beyond reasonable doubt;[44]
2.imposing double punishment due to overlap between conduct the subject of count 3 and conduct the subject of counts 1 and 2;[45]
3.sentencing the defendant on the basis that his voluntary work with people with disabilities was only in recent times while trying to rebuild his business.[46]
In the event that the appeal against the convictions is not wholly successful, the defendant seeks to be re-sentenced according to law. As I have determined that the defendant has not established any of his grounds of appeal against conviction, I now turn to consider grounds of appeal against sentence.
[44] Ground 1.
[45] Ground 2.
[46] Ground 3.
The sentence appeal is out of time, the notice of appeal having been filed on 22 April 2014, although the defendant applied on 17 April 2014 for permission to amend the notice of appeal against conviction to include a ground appealing against the sentence. Whilst the defendant did not provide a satisfactory explanation for his delay, the informant does not contend that the delay has caused any prejudice and does not oppose the defendant’s application for an extension of time on any ground other than asserted lack of merit of the sentence appeal.
Circumstances of aggravation
The complaint made by the defendant under this ground relates to references by the Magistrate in his sentencing remarks to the two purported PLH invoices. After addressing the defendant’s conduct in November 2008 the subject of counts 1 and 2 in his sentencing remarks, the Magistrate said:
[9]... Mr Lisson ... sought details of both payments ... and the documentation supporting those payments. In relation to the payment of $23,556 you maintained that it was in respect of expenses due to the Port Lincoln Hotel. This included causing a false invoice purportedly from the Port Lincoln Hotel for that amount to come into existence.
...
[11]In relation to cheque 89 for $4,950, you also caused a false Port Lincoln Hotel Invoice to be provided to Ms Mullen in an endeavour to legitimise the payment as for provision of security.
...
[16]... Your offending was a clear breach of trust. You then caused false documents to be provided to Ms Mullen and provided false information to Mr Lisson and the Board in an endeavour to conceal your dishonesty. Your efforts to conceal your offending involved a number of steps, some execution and occurred over a period of time.
(Emphasis added)
The defendant contends that the Magistrate’s references in the italicised passages to creating and deploying false Port Lincoln Hotel invoices was a circumstance of aggravation and that, as such, the Magistrate could only make that finding if he was satisfied of it beyond reasonable doubt.[47] In relation to purported PLH invoice 8143, the Magistrate referred at [11] of his remarks to its being falsely deployed by the defendant to Ms Mullen. While the Magistrate referred at [9] of his remarks to the defendant causing purported PLH invoice 8193 to come into existence, it is apparent from [16] that it was the provision of the false invoice to Ms Mullen that was the gravamen of the defendant’s conduct in relation to both purported PLH invoices. In his principal reasons for judgment delivered on 1 November 2013, the Magistrate found that the defendant provided both false PLH invoices to Ms Mullen on 15 June 2009. I have already concluded that the Magistrate had ample basis to make that finding beyond reasonable doubt.
[47] Weininger v The Queen [2003] HCA 14, (2003) 212 CLR 629 at [17]-[24] per Gleeson CJ, McHugh, Gummow and Hayne JJ; R v Kreutzer [2013] SASCFC 130, (2013) 118 SASR 211 at [32]-[36] per Gray and Blue JJ.
The defendant also contends that there was no basis for the Magistrate to find beyond reasonable doubt that the deployment of purported PLH invoice 8143 was an attempt to legitimise the payment. The defendant makes the same contention about purported PLH invoice 8193, although technically the Magistrate did not refer to this invoice at [11] of his sentencing remarks. In the defendant’s email on 2 June, he explicitly stated that each payment had been made to the Port Lincoln Hotel, that the invoices were with the Convention files with which he had not yet finished and that he would forward the files to the TAC office when completed. In that email, the defendant also said that he had to look more closely at the invoices in order to explain what went on. Coupled with the finding that the defendant gave both purported PLH invoices to Ms Mullen as part of the Convention file on 15 June 2009, it is an irresistible inference that they were provided in an attempt to legitimise the payments. The defendant reiterates a contention made on the conviction appeal that purported PLH invoice 8143 may have been intended by Ms Spicer to provide a trail in a possible taxation audit to cover for the fact that she intended to make cash payments to herself, Ms Wolfendale and Mr Taylor. That contention is not tenable for the reasons given at [158] above, but in any event it would not detract from a finding beyond reasonable doubt about the defendant’s purpose in providing the false invoices to Ms Mullen.
The defendant in this ground of appeal refers to several other passages in the Magistrate’s remarks on sentence, but makes it clear in his submissions that those complaints are consequential upon the complaints which I have just addressed.
Double punishment
In Pearce v The Queen,[48] the defendant was charged with inflicting grievous bodily harm with intent to do grievous bodily harm (count 9) and breaking and entering a dwelling house and inflicting grievous bodily harm (count 10). There was a common element to both counts, namely inflicting grievous bodily harm on the victim. The sentencing Judge imposed a term of imprisonment of 12 years on each count, but made them concurrent. The High Court held that, to the extent that there was an overlap between the two counts of inflicting grievous bodily harm on the victim, it would be wrong to punish the defendant twice for the one act.[49] The High Court held that the correct approach was to impose separate sentences for each offence and then to consider questions of cumulation or concurrence and totality. The High Court held that, because there were different elements to each of counts 9 and 10 as well as the common element, it was inappropriate to impose a fully concurrent sentence in respect of both counts.[50]
[48] [1998] HCA 57, (1998) 194 CLR 610.
[49] (1998) 194 CLR 610 at [49] per McHugh, Hayne and Callinan JJ and [68] per Gummow J.
[50] (1998) 194 CLR 610 at [44]-[49] per McHugh, Hayne and Callinan JJ, Gummow J relevantly agreeing.
In the present case, there is no common element between counts 1 and 2 on the one hand and count 3 on the other hand. The offences the subject of counts 1 and 2 were completed in November 2008 and comprised the defendant’s dishonest use of his position as a director of ACA with the intention of gaining an advantage for SMC, namely the payments totalling $28,006. By contrast, the offence the subject of count 3 was not committed until June 2009 and comprised the giving of information by the defendant to his fellow director of ACA that was, to his knowledge, false or misleading in a material particular. It follows that there could be no double punishment of the defendant by reason of overlapping elements of the offences.
Considered individually, the sentences of imprisonment imposed on counts 1 and 2 were not manifestly excessive. The offending in November 2008 involved a serious breach of trust and called for significant sentences of imprisonment, albeit it is not suggested that it was inappropriate for the Magistrate to suspend those terms of imprisonment. The conduct the subject of count 3 involved a deliberate attempt by the defendant to deceive his fellow director. This conduct in itself called for a sentence of imprisonment, albeit again it is not suggested that it was inappropriate to suspend that sentence. The defendant might be regarded as fortunate that the Magistrate made the sentence on count 3 concurrent with the sentence on count 1, but there is no appeal by the prosecution against the sentences imposed by the Magistrate.
There is nothing in the Magistrate’s sentencing remarks that suggests that he increased the sentences imposed on counts 1 and 2 by reason of the defendant’s attempt to mislead Mr Lisson on 2 June 2009 which was the subject of count 3. Even if it be assumed that the Magistrate treated the defendant’s provision of the purported PLH invoices to Ms Mullen on 15 June 2009 as circumstances of aggravation of each of the offences, if (as I have concluded) the Magistrate was entitled to find those circumstances proved beyond reasonable doubt, the Magistrate would have committed no error if he took those circumstances into account in fixing the sentences of imprisonment for counts 1, 2 and 3.
Voluntary work by the defendant

The defendant complains that the Magistrate made a factual error when recounting the defendant’s personal circumstances in relation to voluntary work undertaken by the defendant. The relevant passage appears at the conclusion of [14] of the Magistrate’s sentencing remarks:
Turning to your personal circumstances, you come from a large close family. You completed Year 12. I should add you have no prior convictions. You have had a long involvement with sport, you studied at Adelaide University, you were employed by the Trade Practices Commission for four years and then as a Primary Industries Compliance Officer. After leaving that position you started up as Strategic Management Corporation. In recent times you have been involved in voluntary work with people with disabilities while trying to rebuild your own business.
(Emphasis added)
In the submissions made to the Magistrate on behalf of the defendant on sentence, the following had been put by his counsel:
He left the employment of the Primary Industry Department in June 1999 and started a business at SMC Strategic Management Consultants which was slow on the uptake but eventually he became an officer who was able to gain a living from that operation. He was also associated from the beginning of 2008 to 2012 as a volunteer director for a not for profit organisation known as Finding Working Solutions to secure employment opportunities for people with disabilities and disadvantaged backgrounds. He attended 11 board meetings and provided relevant help and assistance for the not for profit organisation on a volunteer basis. So there were 11 board meetings that appear consistent with the amount of volunteering. Since his resignation as a director of ACA, the termination of his contract with the Abalone Association, South Australian Rock Lobster Council he’s tried to rebuild a business maintaining the focus on accounting and project management services.[51]
[51] T25 (Sentencing Submissions).
The defendant contends that, by the last sentence italicised at [190] above, the Magistrate found that the defendant had only become involved in voluntary work after his conduct came to light in July 2009 and implicitly that he engaged in community volunteering to generate mitigating factors in sentencing.
I reject the defendant’s contention. The Magistrate was summarising in one paragraph detailed submissions put to him concerning the defendant’s personal circumstances and entire life. There is no basis to read the italicised sentence literally that the defendant’s involvement in voluntary work did not commence until after July 2009. That would be directly contrary to the submissions that had been made to the Magistrate on behalf of the defendant. Remarks on sentence should not be read in a hypercritical or cynical manner, nor in the same manner as reasons for judgment.[52]
[52] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235 per Wells J approved in R v Becker [2005] SASC 186, (2005) 91 SASR 498 at [18]-[22] per Gray, Sulan and Layton JJ. See also R v Reiner (1974) 8 SASR 102 at 114 per Wells J.
There is no suggestion in the Magistrate’s sentencing remarks that he regarded the defendant’s voluntary work cynically or did not accept it at face value as reflecting credit on the defendant’s character. On the contrary, in the following paragraph, the Magistrate went on to refer to positive character references which he had received which showed that the defendant was, amongst other things, generous.
Conclusion on sentencing appeal
No error has been demonstrated in the Magistrate’s approach to sentencing. It is not contended that the sentence in respect of each count or the total of the sentences are excessive or manifestly excessive. Even if I had exercised the sentencing discretion afresh, I would not have imposed a lesser sentence than imprisonment for six months.
Conclusion
I dismiss the defendant’s appeal against conviction.
I extend the time for the defendant to appeal against sentence to 22 April 2014. I dismiss the appeal against sentence.

Day	Function room hire	Day time	Evening	Total
17 September	$300	$8,437.50	$8,737.50
18 September	$750	$4,600	$5,350.00
19 September	$750	$4,600	$16,170.00	$21,520.00
$35,607.50

Date	Details of supply	GST	Amount (Inc. GST)
21/9/2008	Security for 4^th National Abalone Convention, 18^th & 19^th September 2008 @1500 per day	$450.00	$4950.00
Total payable	$4950.00