Tokley v Ralph Murray Holmes (Australian Securities and Investments Commission)

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal)
TOKLEY v RALPH MURRAY HOLMES (AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION)
[2015] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
27 March 2015
CORPORATIONS - MANAGEMENT AND ADMINISTRATION - DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION - FIDUCIARY AND RELATED STATUTORY DUTIES - REMEDIES AND PENALTIES FOR BREACH OF DUTY - CRIMINAL PENALTIES
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - OTHER OFFENCES
The applicant was convicted in the Magistrates Court of two counts of dishonestly using his position as a director and one count of providing knowledge relating to the affairs of a corporation that was to his knowledge false and misleading. The applicant used his position as a director of Abalone Council of Australia Ltd to dishonestly cause payment to be made to Strategic Management Consultants Pty Ltd, of which the applicant is a director and principal shareholder.
The Applicant appealed to a single Judge of the Supreme Court which was dismissed and now seeks permission to appeal to the Full Court of the Supreme Court.
Held per Kourakis CJ (Bampton and Parker JJ agreeing):
1. The decision of the appeal judge was correct. The appellant has poor prospects of overturning that decision.
2. Permission to appeal refused.
Corporations Act (Cth) s 130(9), s 184(2), referred to.
R v Trimboli (1979) 21 SASR 577, applied.
Williams v Lloyd (1934) 50 CLR 341, distinguished.

TOKLEY v RALPH MURRAY HOLMES (AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION)
[2015] SASCFC 33
Full Court: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: In September 2008, the Abalone Council of Australia Ltd (ACA) held the Fourth National Abalone Convention (the Convention) in the Port Lincoln Hotel. The ACA is a not-for-profit industry body. The applicant was, at relevant times, a director and the chairperson of ACA. Mr Pennington and Mr Lisson were also directors of ACA. Mr Pennington and the applicant were authorised cosignatories on ACA’s cheque account.
The applicant was a director, and the principal shareholder, of Strategic Management Consultants Pty Ltd (SMC) which operated a management services business. SMC was engaged by ACA to organise the Convention. The applicant negotiated, and made arrangements with, the Port Lincoln Hotel for the provision of hotel rooms for convention delegates and for conference facilities.
The applicant was charged with respect to certain dishonest dealings arising out of those arrangements. He was convicted in the Magistrates Court of the following offences:[1]
1On about 17 March 2008 he dishonestly used his position as a Director of ACA with the intention of gaining an advantage for SMC contrary to s 184(2)(b) of the Corporations Act 2001 (Cth) (the Corporations Act) by drawing a cheque on ACA payable to SMC in the sum of $4,950 (ACA cheque no. 89) (which was at the time, or subsequently, written out) purportedly to reimburse SMC for security services associated with the Convention held in Port Lincoln.
2On about 24 November 2008 he dishonestly used his position as a director of ACA with the intention of gaining an advantage for SMC contrary to s 184(2)(a) of the Corporations Act by drawing a cheque in the sum of $27,475.17 (ACA cheque no. 90) (which was at the time, or subsequently, written out) on ACA payable to SMC purportedly to reimburse his expenses in connection with the Convention.
3On 2 June 2009 he provided information to L, a director of ACA relating to the affairs of ACA that was, to his knowledge, false and misleading in a material particular, contrary to s 130(9)(1) of the Corporations Act by representing that a payment of $4,500 made by ACA to the Port Lincoln Hotel for security was made because the Port Lincoln Hotel had required ACA to pay for security measures around the Hotel and by representing that the Port Lincoln Hotel had charged additional costs for venue hire, catering a cocktail evening, printing, photocopying, telephone use and couriers, when in fact the Port Lincoln Hotel had not charged those costs nor had SMC paid for them.
[1] The description of the convictions given here has been abbreviated and incorporates both the statement of charge and the particulars. The words in parentheses were inserted by amendment at the close of the prosecution case.
The Invoices and Payments
On invoice 8382, dated 26 September 2008, the Port Lincoln Hotel charged ACA $37,307.50 for venue hire and function costs. On 7 October 2008 an ACA cheque, completed by the applicant and signed by the appellant and Mr Pennington, for $37,307.50 was paid into an SMC account. On the same day the appellant paid $40,000 to the Port Lincoln Hotel using his personal credit cards.
On 8 October 2008, the Port Lincoln Hotel issued 58 invoices for room hire by convention delegates totalling $23,556.54. On 17 October 2008 an ACA cheque for that amount was completed by the defendant, signed by him and Mr Pennington, and banked into the applicant’s personal bank account. The Port Lincoln Hotel belatedly amended its invoice to charge an additional $451 for room hire. The applicant paid the Port Lincoln Hotel a further amount of $21,305.05 on 15 November 2008 which, together with his earlier overpayment, paid in full the Port Lincoln Hotel invoices. However, as a result of the late amendment to the Port Lincoln Hotel invoice for room hire, the applicant was entitled to a reimbursement of $441 from ACA. ACA paid the applicant that amount on 30 July 2009.
On 17 November 2008 ACA cheque no. 89, in the amount of $4,950.60, signed by the applicant and Mr Pennington, was deposited into SMC’s bank account. Ms Spicer was an employee of SMC and the applicant’s domestic partner. She recorded on the ACA cheque butt that the cheque was paid to the Port Lincoln Hotel for the provision of security services which had been charged on Port Lincoln Hotel invoice no. 8143. It was subsequently discovered that an invoice dated 21 September 2008 in the amount of $4,950 purporting to be issued by the Port Lincoln Hotel and bearing the number 8143 had been forged by a person or persons in the SMC office. Ms Spicer made a notation “Paid 17/11/08” on the forged invoice. A genuine Port Lincoln Hotel invoice bearing the no. 8143 had been issued but it was one of the 58 invoices issued by the Port Lincoln Hotel charging a lesser amount for room hire for convention delegates.
On 21 November 2008 SMC issued three invoices to ACA. Invoice no. 1465 to ACA charged $23,056 for “Reimbursement for expenses paid for the National Abalone Convention”. The claimed expenses were:
·Venue hire $20,000
·Cocktail evening $900
·Miscellaneous expenses $60
·GST $2,096.
Additional SMC invoices numbered 1466 and 1467 charged ACA $2,800 and $1,619.17 respectively for other convention costs.
On 24 November 2008 ACA paid SMC on invoices 1465 to 1467 by cheque no. 90, in the amount of $27,475.17, which was deposited into SMC’s bank account. Cheque number 90 was signed by the applicant and Mr Pennington. Ms Spicer, who completed the cheque butt, recorded that the cheque was paid to SMC for invoice nos. 1465 to 1467. Subsequently it was discovered that a bogus Port Lincoln Hotel invoice, no. 8193, charging $23,056 for the same services as those listed in SMC invoice no. 1465, was also forged by a person or persons in the SMC office.
ACA Investigates
On 25 May 2009 a director of ACA, Mr Lisson, sent the applicant an email asking him to respond to certain questions. On 2 June 2009 the applicant responded to Mr Lisson’s queries. The responses are italicised:
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
By an email sent on 3 June 2008 Mr Lisson requested copies of the Port Lincoln Hotel and other invoices:
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 applicant provided Ms Mullen, an administrative officer employed by ACA, with a file of what he claimed to be supporting documentation. Ms Mullen then made enquiries of the Port Lincoln Hotel which resulted in Mr Lisson seeking further explanations from the applicant by an email sent on 17 June 2009. Mr Lisson testified that, following those email exchanges, in a telephone conversation on 18 June 2009 the applicant made an admission in these terms:
... 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.
On 18 June 2009 the applicant reimbursed ACA $28,006 being the total of the payments of $4,950 and $23,056, made with cheque nos. 89 and 90 respectively, which were referable to the forged Port Lincoln Hotel invoices.
The Trial
The trial in the Magistrates Court commenced on 20 November 2012. The prosecution tendered the documentation relating to the charging of the expenses by SMC and called as witnesses Mr Pennington, Mr Lisson, and Ms Mullen. The prosecution also called: Ms Wolfendale, an employee of SMC, the Port Lincoln Hotel employees Ms Murphy and Michael Kosch, and Michael Clissold, an investigator with the Australian Securities and Investments Commission (ASIC).
The applicant did not give evidence. Ms Spicer testified that she completed the details on cheque nos. 89 and 90 after the applicant and Mr Pennington had signed them. Ms Spicer gave evidence that she unilaterally decided that SMC was entitled to charge ACA $4,500 because it intended to make additional payments to SMC staff for security services by them. Ms Spicer testified that she created the bogus Port Lincoln Hotel invoices, nos. 8143 and 8193, for internal accounting purposes. Ms Spicer claimed that she issued SMC invoice nos. 1465 to 1467 because she came to mistakenly believe that SMC had not been fully reimbursed for payments the applicant had made to the Port Lincoln Hotel. Ms Spicer could not explain how she arrived at the amounts claimed. She also testified that she completed the details on ACA cheque no. 90 before issuing the SMC invoices but was unable to explain how she knew in advance the amounts which were written into the cheques. By way of explanation for her mistakes and the unorthodox charges she made, Ms Spicer testified that she had suffered a breakdown in her mental health after the death of her mother.
The Magistrate found that Ms Spicer had tailored her evidence. He found her to be an unreliable witness. He was not prepared to put any weight on her evidence.
The Amendments to Counts 1 and 2
At the close of the prosecution case on 23 November 2012, the applicant made a no case to answer submission in response to which the prosecution sought permission to amend the particulars to counts one and two. The application arose in the following circumstances. The prosecutor, in the course of the opening on 20 November 2012, informed the Magistrate that it was the prosecution case that when the applicant signed each of ACA cheques no. 89 ($4,950, the subject of count 1) and no. 90 ($23,056, the subject of count 2) the payee, SMC, and the amount of the payment had been written in.
However, counsel for the defendant interposed to tell the Magistrate that the prosecution did not propose to call any witness who would testify that the cheques were completed before they were signed. Counsel for the prosecution then submitted:
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 is 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 no. 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.
In the course of the appellant’s no case submissions the prosecutor successfully sought permission to amend the particulars to counts one and two to insert the words “which was at the time, or subsequently written out” after the word “cheque” in each of counts one and two. Those words appear in parenthesis in the abbreviated form of the charges set out in [3] above. The amendment made it clear that the prosecution case was not tied to the factual allegation that the cheque details had been completed when the applicant signed them. The applicant’s counsel at trial did not oppose the amendment on the ground that he would have cross-examined any differently had the amendment been made earlier. Only on appeal before the Judge did the applicant’s then counsel claim that the defence would have cross-examined the witnesses Ms Wolfendale, Ms Mullen and Mr Lisson differently. The Judge examined each of those complaints[2] and was satisfied that the defence would not have been conducted any differently. Moreover, the Judge correctly observed that the defence was on notice from the time of the prosecution opening that it advanced its case on the alternative basis that the appellant signed blank cheques knowing that the cheques were to be used to pay SMC for bogus expenses.
[2] [101]-[103].
The Appeal
On the appeal against his convictions, the Judge examined the many complaints made by the applicant with respect to the convictions on each of the counts. He concluded that:
·The Magistrate had not made a finding one way or another as to whether the cheque details had been written in when the applicant signed them;
·There was ample evidence to support the Magistrate’s finding that the applicant knew when he signed ACA cheque no. 89, whether it was already filled in or not, that it would be used to pay SMC $4,950 it had claimed for security expenses;
·There was ample evidence to support the Magistrate’s finding that the applicant knew when he signed ACA cheque no. 90, whether or not the cheque details had been completed, that it would be used to pay SMC $23,056 for expenses which it had claimed had been charged by the Port Lincoln Hotel for venue hire and other associated services;
·It was not credible that other officers of ACA would have made a decision on behalf of ACA to agree to pay the amounts claimed by SMC without reference to the applicant. In this respect the Judge referred to Mr Pennington’s evidence that he never signed a blank cheque unless the applicant explained its purpose and Mr Lisson’s evidence that the applicant told him after the event that the money was used to pay for security measures around the Hotel;
·The appellant, having made all of the arrangements with the Port Lincoln Hotel, it was extremely unlikely that he could have imagined that the Port Lincoln Hotel would require additional payment for security services;
·The defendant had explicitly admitted that he had rendered the invoice for $4,950 on 17 November 2008;
·The Magistrate was entitled to rely on Ms Wolfendale’s evidence that there was never a suggestion that either she or Mr Taylor would be paid a bonus and to reject the applicant’s contention that the money was in fact used to reimburse SMC for costs of its staff members. Moreover, if that were the intention an SMC invoice would have been drawn to show that cost;
·The applicant’s contention that SMC was entitled to charge additional amounts did not negate the prosecution case that the ACA payments had been obtained dishonestly;
·The explanation that the bogus Port Lincoln Hotel invoice no. 8193 was created for internal accounting invoices was not credible.
The Judge dismissed the appeal.
The Application for Permission
The applicant seeks permission to appeal against that order. The grounds on which he proposes to rely are:
Count 1
1.The learned Judge erred in not having regard to the evidence of Mr Pennington concerning the signing of the blank cheques when rejecting the evidence of the witness Ms Spicer concerning the completion of the cheque the subject of the first count (at [133]).
2.The learned Judge erred in finding (at [109]) that the Magistrate did not find that ACA cheque no 89 had been completed when signed by the appellant, whereas the Magistrate had by necessary implication erroneously so found (at [89] of the Magistrate’s reasons).
3.The learned Judge erred in not having regard to Mr Pennington’s unchallenged evidence that he had discussed with the appellant that SMC staff were providing security, and his other unchallenged evidence concerning such matters ([134] and [139]).
4.The learned trial Judge erred in his view that there was an admission by the appellant in the statement dated 1 July 2009 concerning an invoice for $4,950 (at [136]).
5.The learned Judge erred in his view of the evidence of Ms Wolfendale and whether there was any cash payment by the appellant to her in circumstances where Ms Wolfendale did not address such matters in her evidence (at [137]).
6.The learned Judge was in error in considering that the explanation by the appellant as to the use of a purported invoice was not credible as part of his reasoning towards considering the Magistrate’s decision to be justified (at [138]).
Count 2
1.The learned Judge erred in fact by conflating or assimilating the answering by the appellant of a request as to Invoice 1465 with the appellant’s explanation as to the reason for the payment (at [146]-[147]).
2.The learned Judge erred in finding (at [109]) that the Magistrate did not find that ACA cheque 90 had been completed when signed by the appellant, whereas the Magistrate had by necessary implication erroneously so found (at [89] of the Magistrate’s reasons).
3.The learned Judge erred in not finding that Ms Spicer’s evidence as to her creation of the Invoice was credible (at [148]).
4.The learned Judge erred in not having regard to the evidence of Mr Pennington concerning the signing of two blank cheques when rejecting the appellant’s challenge concerning the completion of the cheque and the cheque butt (at [149]).
Count 3
1.The learned Judge erred in not having regard to Mr Pennington’s unchallenged evidence concerning the discussion he had with the appellant when considering the appellant’s response to the email communication dated 25 May 2009 (at [169]).
2.The learned trial Judge erred in fact and in law in considering that the response to the email concerned the affairs of the ACA and not SMC.
All counts
1.The learned Judge erred in fact in rejecting Ms Spicer’s evidence that she created the false Port Lincoln Hotel invoices and as to when such invoices were created.
2.The learned Judge erred in failing to apply the correct test, and failed to correct the same error of the Magistrate, in that he ought to have (but did not) considered whether there was a reasonable possibility that Ms Spicer was telling the truth in relation to her creation of the false Port Lincoln Hotel invoices, and the appellant’s lack of involvement in same, and the filling out of the cheques.
3. The learned Judge erred and failed to correct the same error of the Magistrate, in using documents created months after the signing of the cheques in the process of inferring beyond reasonable doubt, a dishonest state of mind at the time of the appellant signing cheques 89 and 90.
4.In circumstances where one director gave admittedly truthful evidence of the good character of the appellant director, the learned Judge erred when conducting a review of the Magistrate’s judgment by failing to have regard to the same when assessing the belief of the appellant director at the time of signing the cheques.
5.The learned Judge erred in fact and in law considering, on the whole of the evidence, that the Magistrate was justified in finding each of the counts proved beyond a reasonable doubt ([140], [151]).

It is apparent on the face of those grounds that they raise factual questions which have been decided adversely to the applicant by both the Magistrate and the Judge. That is not surprising. The prosecution evidence was very compelling.
Nonetheless, in support of his application for permission the applicant submits the following.
First, the applicant complains that the Judge had insufficient regard to the evidence of Mr Pennington which, it was said, supported the defence contention that the cheques were blank when signed. However, as we earlier observed, the Judge found that there was strong evidence supporting the convictions even on the premise that the cheques details had not been completed when the applicant signed them. Indeed Mr Pennington’s evidence that he was asked to sign blank cheques is on one view, at least as consistent with guilt as innocence. The applicant also contends that Mr Pennington’s evidence that the applicant mentioned that the cheques were intended to reimburse SMC for security provided by its staff, supported the defence case. Mr Pennington’s testimony was general and vague. The applicant makes much more of Mr Pennington's general evidence than it can properly bear. The applicant may have given him any number of explanations for the need to sign blank cheques.
The evaluation of the evidence of Mr Pennington and the weight it was to be given against all of the evidence in the case was primarily for the trial Magistrate. It must also be remembered that Mr Pennington made it clear that he remained loyal to the applicant. Be that as it may, the foundation for the claim was a forged Port Lincoln Hotel invoice
For the reasons given by the Judge it was unlikely that the amounts were to be paid to SMC’s staff. The ignorance of SMC’s employees of any intention to pay them a bonus, for providing security services, although not necessarily conclusive of the intention of SMC’s management, is an item of circumstantial evidence which strongly denies the possibility of such an intention. In the ordinary course, one would expect an intention to benefit employees in that way to be communicated to them. In the absence of prior agreement with ACA, SMC could not honestly charge ACA, as a expense, a payment to its employees which it was not at the time bound in law to provide. Moreover, as the Judge observed, the applicant had falsely stated to ACA’s Board that payments had in fact been made to his employees. This defence contention was also inconsistent with the reimbursement of ACA for that amount by the applicant. The applicant makes much more of Mr Pennington’s general evidence than it can properly bear.
The applicant claims that the commercial circumstances in which his conduct occurred leaves open the possibility that his conduct was not dishonest. The commercial context of the applicant’s conduct does not help him. The principles set out in Doyle v ASIC do not assist the applicant. [3] To the contrary, the applicant’s contentions as to the basis on which SMC charged ACA were uncommercial and unrealistic. The commercial context gives no reason to doubt the finding of dishonesty made by the Magistrate and the Judge.
[3] Doyle v ASIC (2005) 227 CLR 18 at 22, 28
The applicant contends that the appeal Judge misused evidence that Ms Spicer lacked authority as an employee of SMC to charge ACA. The Judge did no more than make the, plainly correct, observation that it is unlikely that an employee in Ms Spicer’s position would have made the charges without consulting the applicant and without his active or tacit concurrence. That conclusion is soundly based on a commonsense understanding of the way in which small businesses, like SMC are organised and on an understanding of human affairs. Contrary to the applicant’s suggestion, an inference can be drawn from the nature of Ms Spicer’s relationship to the applicant and the working arrangements within the SMC office, that she did not act unilaterally and that the applicant was dishonestly involved in her conduct.
The applicant complains that the Judge gave insufficient weight to Mr Pennington’s evidence that he regarded the applicant to be honest. Mr Pennington’s testimony that he personally regarded the applicant as a person of the utmost integrity, was not reputation evidence. It was not admissible evidence of good character.[4] In any event, evidence of good character, when it is given in proper form, must be assessed in the context of all of the evidence in the case. The Magistrate did just that directing himself that the evidence of Mr Pennington should be taken into account in assessing the likelihood that he had acted dishonestly. That direction was unduly favourable to the applicant because Mr Pennington's testimony was not admissible as evidence of good character. Such was the overwhelming strength of the inferences to be drawn from the creation of the false Port Lincoln Hotel invoices and the way in which SMC charged ACA, that it could not attract much weight.
[4] R v Trimboli (1979) 21 SASR 577, 585
The applicant contends that it was necessary to make a finding beyond reasonable doubt as to the applicant’s involvement in the creation of the forged Port Lincoln Hotel invoices. That is not so. This was a circumstantial case in which all of the evidence could properly be considered together. It was not a case of sequential independent steps. The question was whether the evidence established beyond reasonable doubt that the applicant dishonestly used his position as a director of ACA in drawing the cheques.
The applicant contends that Blue J wrongly relied on the false documents subsequently created in the SMC office to draw inferences about the appellant’s state of mind when the cheques were drawn. The Judge discussed the documents in these terms:[5]
The defendant is critical of the Magistrate’s finding that SMC invoice 1465 was created by the time the defendant signed ACA cheque 90. The Magistrate had an ample basis to make that finding. The Magistrate was entitled to infer that ACA cheque 90 and its corresponding cheque butt were completed at the same time. It would be difficult to adopt a practice of completing cheque butts well after completion of the cheque as the details of the cheque would not necessarily be recalled afterwards and there would be limited point in completing the details on the cheque butt at all afterwards. The cheque butt for ACA cheque 90 refers to invoice numbers 1465, 1466 and 1467. It is not credible that SMC invoices 1465, 1466 and 1467 had not been created with their separate amounts when ACA cheque 90 for the total of those three amounts was completed.
The defendant is critical of a finding the defendant contends the Magistrate made that purported PLH invoices 8143 and 8193 were created by the time of completion of ACA cheques 89 and 90. The Magistrate did not make such a finding. In considering Ms Spicer’s evidence, the Magistrate simply said that he was not prepared to rely on Ms Spicer’s evidence on the topic of how and when those purported invoices came into existence and did not regard her evidence on the topic of when the details on the cheques, the butts and the invoices were completed as reliable. The Magistrate later said that a strong inference was available that Ms Spicer had available purported PLH invoice 8143 when she completed cheque 89 and its butt, but he did not make a finding that this was so or rely upon any such finding in his assessment of Ms Spicer’s evidence or at all.
[5] Tokley v Holmes [2014] SASC 101 at [149]-[150].
In impugning the use made of the documents by the Judge, the applicant relies on the observation of Dixon J in Williams v Lloyd:[6]
Ex post facto statements of a narrative order are not admissible upon the state of mind at a past date of the person who makes them. But, because some of such statements related to ownership, they were relevant to the chief issue, and, because they were declarations against interest, they were admissible as media of proof of the facts stated.
[6] (1934) 50 CLR 341 at 371.
The documentation in Williams referred to by Dixon J was documentation, made some years after the disposition of property by a bankrupt to his family, to account for income and expenditure related to that property as if the property was held on trust. Plainly enough, the self-serving creation of accounts after the event was not admissible to support the bankrupt’s contention that the property was held on trust. However, the evidence was admissible in Williams to the extent that it circumstantially supported an inference, albeit weakly, that the testator was attempting to evade his creditors. In this case the Judge did not make any narrative use of the documents in the impugned passage. The Judge properly considered the inferences to be drawn from the documents as items of circumstantial evidence.
Conclusion
On the appeal which proceeded by way of a rehearing on the papers, the evidence was carefully examined by the Judge who reached the same conclusion as the Magistrate. The appellant has only poor prospects of overturning the assessments of the Magistrate and the appeal Judge. It is not in the interests of the proper administration of the criminal law to allow a Full Court review in a case such as this.
The proposed appeal does not raise a question of law or a point of general importance. There is no reason to apprehend any miscarriage of justice. On the contrary, the prosecution case is a very strong one. It is not in the interests of justice to permit a second appeal.
Permission to appeal is refused.
BAMPTON J: I agree with the reasons of the Chief Justice and would refuse permission to appeal.
PARKER J: I would refuse permission to appeal for the reasons given by the Chief Justice.

[2015] SASCFC 33

27 March 2015

Key Legal Topics

Areas of Law

Criminal Law

Commercial Law

Legal Concepts

Appeal

Fiduciary Duty

Remedies

Standing