Watson v Paterson
[2016] WASC 357
•7 NOVEMBER 2016
WATSON -v- PATERSON [2016] WASC 357
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 357 | |
| Case No: | SJA:1017/2016 | 2 AUGUST 2016 | |
| Coram: | BANKS-SMITH J | 7/11/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | COLIN DAVID GRAHAM WATSON MICHAEL JAMES PATERSON |
Catchwords: | Criminal law Appeal against conviction Fraud Where resetting of balance of electronic card Where for research purposes Where deceit admitted Whether intention to defraud |
Legislation: | Criminal Appeals Act 2004 (WA) s 8(1), s 9, s 14(2) Criminal Code (WA), s 409(1) |
Case References: | Hunter v The State of Western Australia [2014] WASCA 184 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
MICHAEL JAMES PATERSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P G MALONE
File No : PE 45643 of 2015
Catchwords:
Criminal law - Appeal against conviction - Fraud - Where resetting of balance of electronic card - Where for research purposes - Where deceit admitted - Whether intention to defraud
Legislation:
Criminal Appeals Act 2004 (WA) s 8(1), s 9, s 14(2)
Criminal Code (WA), s 409(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr R K Williamson
Respondent : Mr B M Murray
Solicitors:
Appellant : Ross K Williamson
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hunter v The State of Western Australia [2014] WASCA 184
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
- BANKS-SMITH J:
Summary
1 The appellant, Colin Watson, seeks leave to appeal against a conviction, after trial, of one count of obtaining a benefit by fraud contrary to s 409(1)(c) of the Criminal Code (WA). The benefit obtained was free train and bus travel, said to be to the value of $54.12. Mr Watson was fined $750 and a spent conviction was recorded.
2 There are 11 proposed grounds of appeal, some with several particulars. Additional grounds were not pursued at the hearing. There is an overarching theme. It is contended that the learned magistrate erred in drawing an inference that Mr Watson had the requisite intention to defraud. The grounds attack the various findings upon which it is said the magistrate relied in drawing the necessary inference.
The circumstances of the offence
3 The following matters are not relevantly in dispute.
4 Mr Watson and a co accused, Mr Carruthers, were university students. Both were members of a university 'hackers' club. Mr Watson was studying computer science and cyber forensics.
5 Mr Watson and Mr Carruthers decided to investigate the cyber security of SmartRider cards used by Transperth. Mr Watson's evidence was that the investigation was for a hackers club project that they wished to present at a university open day and that the academic chair for information and cyber security was aware of some aspects of their project. The apparent aim of the project was to show that they could replicate data on a SmartRider card without accessing the Transperth system, through a process of 'cloning'.
6 Mr Carruthers purchased two SmartRider cards at a cost of $20 each. That included credit of $10 on each card. The amount of credit is generally referred to as an e-purse (electronic purse) balance. The cards were not registered in any name at that stage. Mr Carruthers gave one of the cards to Mr Watson. Mr Watson knew the SmartRider card given to him was not registered in his own name.
7 On 1 July 2015, Mr Watson undertook some 16 bus and train trips using the SmartRider card.
8 When a SmartRider card is tagged at the start and end of a journey, the cost of the fare is deducted from the e-purse balance on the card (subject to adjustments for concessions and the like).
9 On three occasions on 1 July 2015, having tagged on and off and incurred fares, Mr Watson reset the e-purse balance of the card to $10. He did so by using his mobile phone to use an application which reset the data on the card to its original status.
10 The net result of the resetting was that the cost of the journeys undertaken by Mr Watson on 1 July 2015 was charged and debited upon tagging but then cancelled when reset.
11 Mr Watson then returned the card to Mr Carruthers (who had utilised the other card in a similar manner but on a number of days).
12 Both cards were registered by Mr Carruthers in false names on 17 July 2015. He later disposed of them.
13 On about 6 July 2015, Transperth officers noted some anomalies with use of the cards and utilised CCTV footage and other equipment in order to link their use with Mr Carruthers and Mr Watson. Investigations continued during July 2015 and August 2015.
14 A schedule prepared on behalf of Transperth was tendered by Mr Watson that indicated the time, journey stop and start locations, tag on and tag off and e-purse balances. It revealed that during the course of the day, Mr Watson travelled by bus and train to various locations including Cockburn Central, Murdoch, Fremantle, Claremont, Bassendean, Bayswater, Leederville, Stirling, Cannington and Maddington.1
15 Mr Watson did not dispute that on 1 July 2016 he travelled on the trips as alleged and reset the card to, relevantly, a $10 credit balance on three occasions. There is some dispute about the cost of the fares but Mr Watson accepts that fares were incurred and reversed by resetting the data on the card.
16 In the context of those facts, the primary issue at trial was whether or not Mr Watson had the requisite intent to defraud.
The prosecution case on intention
17 Both Mr Carruthers and Mr Watson were interviewed by police and the electronic records of the interviews were played before the learned magistrate. Transcripts of the interviews were also provided at trial. The prosecution called, relevantly, a ticketing coordinator from Transperth, Mr Fisk. Mr Fisk conducted the inquiry into the anomalies with the e-purse balance for the SmartRider cards in question.
18 The process utilised by Mr Watson involved using an application on his mobile phone to take a snapshot of the data on the SmartRider card at the time its e-purse balance was $10. Then, after using the card to tag on and off for various journeys, Mr Watson used his phone to reset the data on the SmartRider card to the original snapshot data - so it was reset at a balance of $10.2 This step was repeated after further travel and tagging on and off, so again resetting the e-purse balance to $10.
19 Mr Watson knew each time he reset the card that he was restoring a balance of $10, albeit that since the last reset he had travelled and that such travel would incur a fee. He also knew there was no authority from Transperth to reset the cards.3
20 Mr Watson said he participated in the travel and card resetting for the purpose of obtaining data for the university project but the prosecution case was that such motive or purpose was not to the point. The conduct involved a deliberate resetting of the e-purse balance to $10 and so a reversal of the charges that would otherwise be incurred.
21 During his recorded interview, Mr Watson said as follows:4
[Interviewer]: Well you've explained at least to me why you did it, if that makes sense. Did you realise on the day that you were collecting the data that you at times collecting free travel, did you realise you were doing anything wrong?
[Mr Watson]: Yes.
[Interviewer]: What do you think you were doing wrong?
[Mr Watson]: I knew I was obtaining free travel, I wasn't paying for it.
22 During cross-examination, the following exchange with Mr Watson occurred:5
And you believed - at least at that point in time you would have believed that that would then impregnate the $10 credit or the amount of credit back into the card, wouldn't you? ---It's … so, yes.
So the answer is yes? --- Yes.
Yes. And you didn't do it on one occasion on 1 July, you did it on three occasions. Would that be correct? ---- … Yes
… So on three separate occasions it was placed against the phone on that app and impregnate the money back into it? ---Yes.
23 There was a further exchange:6
You were acutely aware that when you put your card back to the phone it was reimpregnating a $10 credit weren't you?---Right.
And you did it three times, correct?---Yes.
And with the intention of seeing whether you got the credit back up to $10, correct?---That wasn't the intention. The intention was to reset the card to be a clean slate - clean slate so we could get more data.
Well, I'm a little bit confused on that?---Yes.
Clearly, you're aware that doing it is going to get you to $10?---Yes.
Okay. And that would mean you get free travel?---No. I wasn't aware of how much money I had spent on the trip.
Well, were you paying attention to what you had spent?---No.
Did, at any point in time, you do a check to see what you had spent?---No.
24 The prosecution placed significant weight on the statements made in the interview as evidence that Mr Watson had the requisite intent to defraud. As to Mr Watson's claim that he did not check the balance, the prosecution's position was that he knew he had travelled and he knew that the credit was reinstated. The prosecution also contended that circumstances relevant to inferring intent included that Mr Watson knew before embarking on the trip that the proposed conduct involved risk and at least one other friend (Alex) did not want to be involved, and that Mr Watson did not tell the university that obtaining the data for the project involved resetting the e-purse.
The defence case on intention
25 Mr Watson gave evidence at trial. Mr Watson's case at trial was that he did not intend to obtain free travel. He intended to obtain data for the university project. The conduct was for research. Mr Watson said that, 'there was no malicious intent'.7 He said:8
We were planning to send [Transperth] a letter - a handwritten letter, from [university lecturer]. Because he is a doctor, it holds a lot more weight than, you know, from some random students.
--- And, you know, tell them about the vulnerability and what people could do with it so they can fix it up and no one can do it.
26 When cross-examined about his statement in the interview that he knew he was obtaining free travel and not paying, Mr Watson said he was really only repeating what had been said to him by police and that he was tired at the time of the interview, although he understood the questions.9
27 Counsel for Mr Watson said that it was accepted that scanning the card to reset its balance to $10 was 'an act of trickery', and as such comprised an element of the crime (deceit), but submitted that it was not done with the necessary intent. Mr Watson held only an intention to collect data.10
The magistrate's findings
28 The magistrate noted that the behaviour of Mr Watson in broad terms was admitted and that deceit was not in issue.11 He then addressed clearly the issue of Mr Watson's intention:12
Now, there's no question, and he said it in the video record of interview, that Mr Watson knew that he was obtaining free travel, and he knew that it was wrong. In my judgment, Mr Watson did have an intention to defraud because he realised that he was travelling on Transperth services without any regard to their costs, in the knowledge that he was going to use the telephone application that he already had ready, to return the card balance on the card that he was using to its original amount, even though he knew that that card had in fact been used by him - he was doing the travelling around.
…
Speaking more generally, in my judgment, it's an unavoidable conclusion that Mr Carruthers and Mr Watson were not prepared to use cards that could be readily identified as being their cards. They both acknowledged that - Mr Carruthers' case openly said he didn't want to use his own card, and Mr Watson, of course, got a card off Mr Carruthers. Now, it's also, it seems to me - and this is something Sergeant Regan highlighted during the crossexamination of both Mr Carruthers and Mr Watson- it's a reasonable inference, from the refusal of an associate - I think Alex was his name - not to be involved in what they were doing, there's a reasonable inference that - that they went into it knowing that what they were doing was wrong, or potentially wrong.
Now, in the case of Mr Watson, of course, although he only did it once, he readily acknowledged in his video record of interview that what he was doing was wrong, and, although, of course, as I say today, he attempted to say that he was tired and that the police were suggesting to him that he just should embrace that concept. That just lacked credibility. It was a simple concept, articulated by Mr Watson himself, and that is, he knew he was travelling on the - on the transport and not paying for it, and he knew that was wrong.
29 The magistrate then found the charge proved beyond reasonable doubt, stating that:13
[B]oth accused used the telephone application deceitfully, and in my view they did it with an intention to defraud.
Principles - s 409 and intent to defraud
30 Section 409(1) provides that:
Any person who, with intent to defraud, by deceit or any fraudulent means -
(a) obtains property from any person; or
(b) induces any person to deliver property to another person; or
(c) gains a benefit, pecuniary or otherwise, for any person; or
(d) causes a detriment, pecuniary or otherwise, to any person; or
(e) induces any person to do any act that the person is lawfully entitled to abstain from doing; or
(f) induces any person to abstain from doing any act that the person is lawfully entitled to do,
is guilty of a crime[.]
31 The elements of the provision were examined by McLure P in Hunter v The State of Western Australia:14
There are three elements to the offence of fraud under s 409(1), one subjective and two objective. The subjective element is 'with intent to defraud'. The subjective element relates to the objective elements. The nature and extent of the relationship is discussed below. The first objective element is that deceit or fraudulent means are employed. The second objective element requires that the deceit or fraudulent means cause one or more of the consequences specified in pars (a) - (f) of s 409(1).
'Deceit' means 'to induce a [person] to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false': Graham-Helwig v The State of Western Australia [2005] WASCA 127 [13]. That is, 'deceit' requires that the offender: (1) engage in conduct that induces a person to believe something is true which is in fact false; and (2) knows or believe the thing to be false.
'Any fraudulent means' encompasses other conduct falling outside the scope of 'deceit' which can properly be stigmatised as dishonest: Graham-Helwig [14].
The phrase 'intent to defraud' in s 409(1) has its common law meaning. To defraud is to deprive a person of something (including money, property or some lawful right, interest, opportunity or advantage) that has actual or potential economic value by dishonest means: Bolitho v The State of Western Australia [2007] WASCA 102 [152]. That is, to defraud must involve something more than the use of dishonest means. The effect of the dishonest means must be to deprive a person of something of actual or potential value: Balcombe v De Simoni (1972) 126 CLR 576; Bolitho [140] - [143]. It follows that an intent to deprive a person of money which is, or which the defendant honestly believes is, presently due and owing to another is not an intent to defraud even if deceit or other dishonest means are used: The Queen v Kastratovic (1985) 42 SASR 59; Roberts v The State of Western Australia (2005) 29 WAR 445.
In summary, intent to defraud at common law is a single intention with three components being an intention to: (1) deprive a person (2) of something that is of actual or potential economic value (3) by dishonest means. In the context of s 409(1)(c), there is a fourth component, being an intention to gain a benefit, pecuniary or otherwise, for any person.
The third component of the intention, being an intention to use dishonest means, will ordinarily be established by proof of the first objective element, namely that the accused has used 'deceit or any fraudulent means'. However, proof of deceit or fraudulent means is not itself sufficient to establish the first two components of an intent to defraud.
32 Mazza JA in Hunter said:15
Although it hardly needs to be said, the second and third elements of an offence under s 409 are legally separate and distinct from each other: Bolitho [175] (Buss JA). Moreover, the person upon whom the deceit or fraudulent means is practised does not have to be the same person the offender intended to defraud. This said, in most but not every case, there will be a factual overlap between the elements of deceit and intent to defraud. Frequently, the victim of the deceit and the person the offender intends to defraud is one and the same. Further, the offender's intention to defraud may be inferred by his or her use of deceit or fraudulent means.
33 Intention or purpose may be proven either directly or inferentially.
34 In Peters v The Queen16 Kirby J observed:
Absent a comprehensive and reliable confession, it is usually impossible for the prosecution actually to get into the mind of the accused and to demonstrate exactly what it finds was there at the time of the criminal act. Necessarily, therefore, intention must ordinarily be inferred from all of the evidence admitted at the trial. In practice this is not usually such a problem. But the search is not for an intention which the law objectively imputes to the accused. It is a search, by the process of inference from the evidence, to discover the intention which, subjectively, the accused actually had.
35 Proof of intention was discussed by the High Court in Zaburoni v The Queen17 where Kiefel, Bell and Keane JJ outlined the following principles in the context of a case where the accused had been convicted of unlawfully transmitting a serious disease to another with intent to do so:18
It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. The respondent's submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code.
In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused's intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive.
In Willmot, Connolly J observed that the notion of desire is not involved in proof of intention. It is true that in law a person may intend to produce a particular result without desiring that result. Nonetheless, as Professor Williams has observed, intention generally does involve desire. Illustrations of the distinction between desire and intention commonly raise a false issue. Thus, Professor Gillies illustrates the proposition that intention in the criminal law does not connote desire by the example of the accused who sets fire to his enemy's house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused's refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it. A direction that a person may do something, fully intending to do it although the person does not desire to do it, may often be confusing. Unless the facts truly raise the issue the direction should not be given.
Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal. Its resolution requires reference to the evidence given at the trial in some detail.
36 The High Court also said that:19
To engage in conduct knowing that it will probably produce a particular harm is reckless. It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm. Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm.
37 The State's case, then, in terms of the analysis in Hunter is that:
(a) Mr Watson obtained a benefit of free travel (objective element);
(b) He did so by deceit or fraudulent means (objective element);
(c) At the time he gained the benefit, he had an intent to defraud being an intent to deprive Transperth of something that has actual or potential economic value by dishonest means (subjective element).
38 As to the defence case, Mr Watson does not dispute that he used deceit or fraudulent means.20 He does not contend he had any right or permission to reset the e-purse balance at $10 following travel or to travel for free. He does not contend that fares were not payable for the journeys he took. Mr Watson's appeal rests on his contention that the magistrate erred in finding that he had an intention to defraud.
Principles relevant to appeal
39 The appeal is brought under pt 2 of the Criminal Appeals Act 2004 (WA). Section 8(1) provides that:
An appeal may be made under this Division on one or more of these grounds -
(a) that the court of summary jurisdiction -
(i) made an error of law or fact, or of both law and fact;
(ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or excessive;
(b) that there has been a miscarriage of justice.
40 Leave of the court is required for each ground of appeal: s 9(1) Criminal Appeals Act. Leave must not be given unless this court is satisfied the ground has a reasonable prospect of succeeding: s 9(2).
41 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: s 14(2) Criminal Appeals Act.
The grounds of appeal
Ground 1
The learned magistrate erred in law and fact to reason that the appellant 'did have an intention to defraud because he realised that he was travelling on Transperth services without any regard to their costs'.
42 The appellant relies on the passage from the magistrate's reasons cited at [28] above and contends that the magistrate conflated the concepts of deceit and intention to defraud.
43 It is contended that the words, 'without any regard to costs' are inconsistent with an intent to defraud.
44 It is also contended that the stated intention to collect data 'excludes an intention to defraud'.
45 As to the 'conflation', there is no question that the use of deceit or fraudulent means and an intent to defraud are separate elements, as the court in Hunter explains. The magistrate was clearly cognisant of the separate elements of the offence. Mr Watson seeks to distinguish the conduct which is admittedly deceitful (the trickery of resetting) from the intention to reverse debits by resetting the e-purse balance. Any real distinction is difficult to discern. The resetting reverses a debit, such that the fare is no longer charged and the travel undertaken is free. This is an example where, as Mazza JA expressed it in Hunter, there is factual overlap between the elements of deceit and intent to defraud. The offender's intention to defraud may be inferred by his use of deceit or fraudulent means.
46 Such circumstances are distinguishable from those in Hunter, where the appellant asserted he believed he was lawfully entitled to the property he obtained through deceitful means, and so lacked an intention to defraud. Mr Watson did not contend that he was lawfully entitled to free travel.
47 As clearly expressed in Zaburoni, a person may engage in conduct having more than one object or purpose. Section 409(1) is not to be read such that provided an offender has an overarching non-fraudulent intent, any part of that conduct which comprises intent to defraud is to be overlooked or excused. I do not accept that an overarching altruistic purpose or intention of collecting data for research is the only intention to which the magistrate was to have any regard. At the point that Mr Watson utilised his phone to reset the e-purse balance to $10, Mr Watson knew and in fact intended that the e-purse balance would be reset and so cancel the debits for travel undertaken at the point of reset. The fact that other data was reset at the same time or that information from the setting would be utilised in research is not to the point. It was a known step in the 'research' that the e-purse balance would be reset and debits reversed.
48 Factually, the position is distinguishable from that in Zaburoni, where the High Court considered there was evidence of an intention to have intercourse with the victim but there was not sufficient evidence from which to infer the distinct intention to transmit the disease. The former intention was present without the latter. In this case, the magistrate was satisfied that the intention to gather data by resetting it included the intention to reset the $10 balance so reversing the debits for travel in fact undertaken. There was an intention to reverse the debits and accordingly sufficient evidence of an intention to defraud. That finding was open to the magistrate on the evidence.
49 The magistrate was satisfied that Mr Watson knew he was travelling for free. I do not read his Honour's reference to Mr Watson having 'no regard to costs' as narrowly as the appellant contends they are to be read. The magistrate does not suggest Mr Watson failed to consider that costs were incurred and reversed by the resetting. On the contrary, the cited words are said in the same sentence in which the magistrate said that Mr Watson knew he was returning the card balance to its original amount and knew he had been travelling. The magistrate saw the video recorded interview in which inculpatory statements were made. He had the benefit of observing Mr Watson give evidence and he formed the view that despite some backing away in cross-examination from what had been said in the interview, Mr Watson knew at the time that he was travelling and not paying fares and that such course was wrong. Such a finding was clearly open to the magistrate and I do not consider any error is established. Accordingly, I do not consider the ground has a reasonable prospect of success and I decline to grant leave.
Ground 2
The learned magistrate erred in law and fact to infer, from the fact that a friend did not want to be involved in the data collection activities of the appellant, that he intended to defraud Transperth.
50 The appellant refers to the evidence that 'Alex' did not wish to be involved. The evidence was as follows:21
Were you aware of other people, let's use, for example, Alex. Are you aware that he said that he didn't want anything to do with it?---Yes.
And were you aware of why he didn't want anything to do with it?---He's just paranoid. He doesn't like to do anything that could be taken the wrong way.
Taken the wrong way. What do you mean by taken the wrong way?---Say something you could be falsely accused for.
Falsely accused and when you say falsely accused, what do you mean by falsely accused?---Say taken to court for (indistinct)
Taken to court for getting free rides?---Yes. Yes.
51 The magistrate, when 'speaking more generally' referred to this evidence in the contest of Mr Watson having prior knowledge that what he was doing was wrong or potentially wrong. As the respondent put it, it was 'a warning that what he was doing might be illegal'.22 The admissibility of the evidence was not challenged at trial. It was not said by the magistrate to be probative of itself of an intention to defraud. Having regard to the first paragraph cited at [28] above, the magistrate formed the view that there was an intention to defraud without any significant reliance on such evidence. However, to the extent it was given regard, it is evidence of recklessness which may support an inference of intention, as noted in Zaburoni.23 Viewed in that light, there is no error disclosed. It was relevant evidence, albeit arguably of little independent weight. I do not consider the ground has a reasonable prospect of success and I decline to grant leave.
52 Even had the evidence been disregarded, I do not consider the outcome would have been different for the appellant, taking into account the magistrate's findings as to Mr Watson's knowledge. Therefore no substantial miscarriage of justice has occurred.
Ground 2A
The learned magistrate erred when he reasoned that the fact that [the appellant] 'got a card of[f] Mr Carruthers instead of using one in his own name' was probative of him intending to defraud.
53 The inference that Mr Watson was not prepared to use a card that readily identified him is but one matter referred to by the magistrate in the context of Mr Watson embarking on the conduct knowing of risk. It is not suggested that it is probative of intent to defraud taken on its own. Mr Watson had his own SmartRider card, registered through the university. He did not use that card, but used the card provided by Mr Carruthers. The inference was reasonably open to the magistrate. No error is disclosed and for the same reasons as ground 2, I would not grant leave with respect to this ground.
54 As with ground 2, even had the evidence been disregarded, I do not consider the outcome would have been different for the appellant, taking into account the magistrate's findings as to Mr Watson's knowledge. Therefore no substantial miscarriage of justice has occurred.
Ground 2B
The learned magistrate erred in fact to reason that the 'simple concept, articulated by [the appellant] himself, and that is he knew he was travelling ... and not paying for it and he knew that was wrong' was probative of [the appellant] having an intention to defraud.
55 This ground has been addressed by ground 1. I decline to grant leave for this ground on the same basis.
Ground 3
The learned magistrate erred in fact to infer, from that fact the appellant 'didn't specifically reveal to the university, as part of any open day or any presentation, that he was using the telephone application to restore the card's original balance', that he intended to defraud Transperth.
56 An important aspect of Mr Watson's defence was that the data collection was for the purpose of the university open day and so for research. In the context of that defence, it was relevant for the magistrate to take into account the evidence that there had not in fact been complete disclosure to the university of what was involved. Mr Watson did not tell the lecturer that what he and Mr Carruthers were doing involved reverting the balance to $10 and so obtaining travel without paying for it.24 The failure to disclose this step was relevant evidence to which the magistrate was entitled to have regard in inferring intent to defraud. It was open to the magistrate to infer from the withholding of that information that Mr Watson knew that the reversal of the debits was wrong and so infer that such conduct was consistent with intent to defraud. As with ground 2, the magistrate did not rely on this evidence alone as proof of such intent: it was one part of the evidence to which the magistrate had regard, consistent with the approach anticipated in Peters. No error is disclosed, and I decline to grant leave to appeal.
Ground 4
The learned magistrate erred in fact to find that 'both accused have reflected on this situation and effectively have tried to claim that they had no intention to defraud at the time of the offence when in fact all of the evidence would point to the fact that they did'.
57 In the appellant's written submissions, consideration of this ground agitated the same points addressed with respect to ground 1. It is not in issue that in his interview and in evidence during the trial, Mr Watson claimed to have no malicious intent and was undertaking the project for research. The magistrate clearly took this into account and referred to it. However, the magistrate, having viewed the interview and seen Mr Watson give evidence, did not accept Mr Watson's attempts to resile from the admissions made during his interview by claiming during the trial that at the time of the interview he was tired or only repeating what was put to him. The magistrate placed considerable weight on the admissions and it was open to him to do so in addressing the issue of intent to defraud. No error is disclosed and I decline to grant leave for this ground.
Ground 5
The learned magistrate erred to reason that '... Mr Watson rationalised [his] behaviour on the basis that Transperth would inevitably be uncomfortable with their system being hacked into, and both claim they used anonymity so they would not be the subject of false allegations - that just seems to me to be nonsense because there is nothing false about the situation they find themselves in'.
58 The alleged error is not readily identifiable from the wording of the ground, but appears to be a complaint that the magistrate did not accept that Mr Watson was concerned about 'false' allegations (and not allegations more generally). The question of protection from 'false' allegations was not raised during the interview but was first raised during the trial (see ground 2). The magistrate in effect rejected as post-event rationalisation any suggestion that Mr Watson was only concerned to protect himself from 'false' allegations (and perhaps from true allegations of deceit, as suggested in the appellant's written outline)25 and concluded (it follows) that in fact Mr Watson was concerned to protect himself from responsibility for the conduct involving the card, including the balance re-setting and unpaid fares, being the 'situation in which they find themselves'.26
59 The magistrate's conclusion was reasonably available on the evidence, particularly when viewed in the context of other evidence such as Mr Watson's acceptance in the interview that on the day he collected the data he knew that he was doing something wrong and that he had obtained free travel and was not paying for it. Other consistent evidence was his failure to inform the university that the project involved a reversal of debits.
60 Furthermore, such conclusion was relevant to the issue of Mr Watson's knowledge or recklessness as discussed in Zaburoni.27 No error in reasoning is disclosed. I do not consider the ground has a reasonable prospect of success and so decline leave.
Ground 6
The learned magistrate erred in fact to reason that '... they both took the ... trips, so the fact that they were concerned about false allegations ... is not credible' because it is not reasonable to infer, from the fact that an accused took a trip, when collecting data, that he would not be concerned about the false allegation of intending to defraud Transperth or that he did intend to defraud.
61 The magistrate took into account the fact that trips were knowingly undertaken, trips which were not free, and that the e-purse balance was then knowingly reset. The magistrate placed weight on the fact the travel was in fact undertaken. He was entitled to do so. No error is disclosed. The ground overlaps with ground 5 and ground 1 and leave is refused for the same reasons.
Ground 7
The magistrate erred in fact to reason he could infer an intention to defraud 'there [being] no evidence ... that they actually needed to ensure the card balance was restored to the original balance as the only possible way to collect data from the card'.
62 The whole statement referenced is instructive:28
It does seem to me that whilst both speak, of course, of university projects and open days, there's no evidence, it seems to me, that they actually needed to ensure that the card balance was restored to the original balance as the only way possible to collect data from the card. That, of course, was to some extent a self-serving implication that was given, but as I mentioned in addresses, there's no evidence that that's the only way that that was possible.
- The magistrate did not infer an intent to defraud solely from the fact that the research could have been conducted in (to paraphrase) an above-board manner. The magistrate was obliged to and did consider the veracity of the 'research' defence and the evidence was relevant to that exercise.
63 In any event, whether or not Mr Watson needed to restore the e-purse balance as part of the data collection is not to the point in assessing liability for the offence. The fact is that the resetting occurred and it had that consequence, as Mr Watson knew.
64 No error is identified, and leave to appeal is refused on this ground.
Ground 8
The learned magistrate erred in fact and law to reason that the defence argument that the value of the trips taken by the appellant [w]as less than the amount paid to Transperth for the smart rider card assisted the defence was 'after the event rationalisation' and 'just absolutely miss[ed] the point ... of this whole prosecution which was that both accused ... did act deceitfully at the time by adjusting the balance'.
65 The defence sought to characterise the payments and deductions so as to contend there was no loss to Transperth and so no intent to defraud. Relevantly, it was said that the card cost $10 and so Transperth benefitted from that payment, and furthermore it was contended that Mr Watson would not have exhausted the $10 credit on the card if he had used his registered card which entitled him to concessions for the trips he undertook.
66 The schedule prepared by Transperth indicated that the fees for each step of travel undertaken by Mr Watson after a resetting when charged on a non-concessional basis added up to a total of $54.12. The schedule also suggested that if the fees were calculated on a non-concessional basis but to take into account that some travel remained within particular zones, the total fees may have been adjusted such that they were less than $54.12 but still in excess of $10.
67 Mr Carruthers made some calculations of the fees that he says would have been charged by Transperth on a concessional basis and Mr Watson relies on Mr Carruthers' calculations and contends that charged on a concessional basis, the fares would have been less than $10. Mr Watson therefore contends that there was no defrauding of Transperth, and so no intent to defraud. Further, it was contended that Transperth benefitted from the initial payment of $10 for the card (in addition to the $10 credit for fares).
68 The magistrate rejected those arguments. It was open to him to do so.
69 The cards were not registered for student concessional charges. The fact that Mr Watson was entitled to a concessional fare on his own (registered) card is not to the point. He did not travel on his registered card. Accordingly, there were no deductions made from his registered card. Nor is it to the point that the 'clean' card cost $10 before the credit was added. There is no suggestion the card was not a valid card, which in the ordinary course was capable of being topped up and re-used: that Mr Carruthers apparently chose to throw it away after its use was a matter for him.
70 Properly understood, the magistrate made no error of fact or law in rejecting the contention that because Mr Watson could have travelled differently and sought the benefit of a concession had he used his own card then there was no apparent loss to Transperth. The evidence established that there were trips for which Mr Watson ought to have paid a fare that were undertaken by Mr Watson for free as a result of the resetting of the e-purse. Having had the benefit of the totality of the evidence, the magistrate formed the view that Mr Watson knew he was obtaining travel for free as a result of the resetting of data.
71 Accordingly, I do not consider the ground has a reasonable prospect of success and I decline to grant leave to appeal.
72 Even if the sum of the unpaid fares was not precisely $54.12, the evidence established that the value of the fares reversed on a non-concessional basis exceeded the $10 credit that was in fact paid to Transperth. Accordingly, I do not consider the outcome would have been any different for the appellant and there was no miscarriage of justice.
Ground 11
The learned magistrate erred in law and fact to find the prosecution had proven beyond reasonable doubt the appellant's act of deceit caused the appellant to get free travel: there was no evidence of a causal connection between the data collection activities of the Appellant and any trip taken by any accused.
73 This ground was not elucidated in the submissions other than to say that it is an element of the offence that the deceit bring about the circumstance of free travel, and there was no such evidence and no evidence of any 'challenge' to Mr Watson's ability to continue to travel.
74 The ground ignores the nexus between the resetting, the continued travel, and the repeat of the resetting. There was evidence that supported the magistrate's finding that the elements of s 409(1)(c) were made out to the appropriate standard of proof. There was a reversal of all charges incurred between the incidents of resetting the e-purse balance to $10 and yet further travel was undertaken between and after those incidents. Otherwise, the ground seeks to repeat the complaint that the magistrate allegedly conflated notions of deceit and intent to defraud, as already covered by ground 1.
Outcome
75 For the above reasons, I do not consider there is merit in any of the proposed grounds of appeal. I would refuse leave in respect of the grounds and dismiss the appeal.
1 Exhibit A7.
2 ts 55, 22 February 2016 (am).
3 ts 57, 22 February 2016 (am).
4 Exhibit 2 (transcript) pages 3 - 4.
5 ts 48, 22 February 2016 (am).
6 ts 59, 22 February 2016 (am).
7 Exhibit 2 (transcript) page 1.
8 ts 46, 22 February 2016 (am).
9 ts 52 - 54, 22 February 2016 (am).
10 ts 70, 22 February 2016 (am).
11 ts 2, 7, 22 February 2016 (pm).
12 ts 5 - 6, 22 February 2016 (pm).
13 ts 8, 22 February 2016 (pm).
14Hunter v The State of Western Australia [2014] WASCA 184 [36] - [41]. See also Buss JA [97] - [102].
15Hunter [113].
16Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 551 [134].
17Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482.
18Zaburoni [16] - [19].
19Zaburoni [10].
20 ts 4 - 5 (appeal).
21 ts 58 - 59, 22 February 2016 (am).
22 Respondent's outline [15].
23Zaburoni [10].
24 Exhibit 2 (transcript), page 2; ts 57, 22 February 2016 (am).
25 Appellant's outline [30].
26 ts 7, 22 February 2016 (pm).
27Zaburoni [10].
28 ts 7, 22 February 2016 (pm).
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8
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