Colton v Queensland Police Service
[2021] QDC 197
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Colton v Queensland Police Service[2021] QDC 197
- Add to List
Colton v Queensland Police Service[2021] QDC 197
Colton v Queensland Police Service[2021] QDC 197
DISTRICT COURT OF QUEENSLAND
CITATION: | Colton v Queensland Police Service [2021] QDC 197 |
PARTIES: | ROBERT JAMES COLTON (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 2358 of 2019 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 20 August 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2021 |
JUDGE: | Loury QC DCJ |
ORDER: |
|
COUNSEL: | The appellant was self-represented M Parfitt for the respondent |
SOLICITORS: | The appellant was self-represented Office of the Director of Public Prosecutions for the respondent |
- [1]On 19 June 2019 the appellant was convicted by a Magistrate of one count of fraud. He represented himself at the trial. He was sentenced to 12 months imprisonment with a parole release date set at 19 October 2019.
- [2]The charge of which the appellant was convicted was that between 4 July 2015 and 1 October 2015 he dishonestly obtained $8000 from Gabrielle Joy Bishop. The appellant pleaded not guilty and a trial was conducted. Ms Bishop gave evidence as did Suzanne Louise Campbell for the prosecution. The appellant gave evidence in his defence.
Grounds of appeal
- [3]The appellant, by notice filed 4 July 2019, appeals against his conviction on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. He also appeals his sentence on the ground that it is manifestly excessive.
- [4]The appellant’s written submissions filed 8 July 2020 set out the following grounds of appeal:
- The evidence does not support or prove a claim of dishonesty.
- There was no evidence that the appellant intended to defraud at the time he accepted the funds from Ms
Bishop.
- There was no written demand or email as required by Ms Bishop to notify the appellant of her request to
withdraw the balance of the funds.
- The conduct of the hearing was contrary to section 651(2)(b) of the Criminal Code.
- The appellant was denied natural justice.
- The appellant asserts a claim of right and an honest belief in his right to apply the received funds from Ms
Bishop.
Nature of the appeal
- [5]The appeal is brought pursuant to section 222 of the Justices Act 1886. Such an appeal is by way of rehearing on the evidence given at trial. An appeal by way of rehearing requires this court to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[1] In order to succeed the appellant must demonstrate that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[2]
- [6]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgement to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by findings of the trial judge”.” (citations omitted)
The prosecution case
- [7]It was not contentious in the trial that on two occasions the complainant, Ms Bishop, gave $5000 to the appellant for him to invest on her behalf. The real issue in the trial was whether the appellant had acted dishonestly in obtaining that money.
- [8]Ms Bishop testified that she first met the appellant in December 2014 through another friend. By March 2015 the complainant, her friend and the appellant were sharing a house. The appellant had discussions with the complainant about investing money. She believed him to be an investor.[4] On 4 July 2015 the complainant decided to invest $5000 with the appellant. She did so by depositing that sum into his bank account. She requested a receipt for her money from the appellant however never received one. She requested something in writing as to where her money was invested. The appellant assured her it was in a safe investment and that it was growing.
- [9]On 1 October 2015 the appellant told the complainant about another investment opportunity. The appellant told her that she would not lose money and that nothing would go wrong.[5] He suggested she invest another $5000. She did so by depositing that same sum into the appellant’s bank account.
- [10]On 16 December 2015 the appellant was evicted from the share house. The complainant maintained contact with the appellant and continued to ask for receipts for her money and some information as to where her money had been invested. The appellant kept speaking to her “in riddles” and she would be left confused.[6] She continued to call and text the appellant but he stopped taking her calls or replying. On 16 July 2016 she saw the appellant and told him that she needed urgent dental work and requested $2000 of her money. On 18 July 2016 the appellant deposited $2000 into the complainant’s bank account. She again requested receipts and data as to her investment however she never heard from the appellant again.[7]
- [11]The complainant said that the appellant had spoken about his past experiences in investing in the stock market. He had showed her some data relating to other client’s investments, by producing two spreadsheets which purported to show growth in the investments.[8] He told her how well the markets were going and that she could get a great return on her money. He said that he usually only dealt with large amounts of money but because she was a friend he would help her with her small amount of money. She thought he was doing her a favour.[9] She believed that the appellant had experience in investing monies and she trusted him. The appellant had told her that he could make her money grow. He said that the investments were easy and that she would never lose her money, that she would make money overnight.[10] She understood that the appellant was investing her money in the stock market.[11] It was the appellant who requested the first sum of money from the complainant.[12]
- [12]The complainant said that she thought the appellant was involved in overseas markets which kept him working through the night in his bedroom. He would go out to meetings throughout the day.
- [13]When the complainant asked about her own investment the appellant was always positive. He said that she had nothing to worry about however he never produced any receipts or showed her any data as to how her investment was going. She continually asked him for information but she said that he would talk in circles.[13]
- [14]The complainant in cross-examination denied that the appellant ever told her that the investment related to foreign exchange and commodities.[14] She denied that she first approached the appellant to invest money.[15] She agreed that the appellant offered to teach her index trading after she had invested the first $5000. She recalled the appellant speaking about “hedging”.[16] She denied that the appellant said to her, after she had deposited the first $5000, that he would invest an equivalent amount of money for her.[17] She denied that the appellant had told her that he would record the $5000 payment as a loan by her to him. She also denied that there were any conversations about taxation.[18]
- [15]The complainant agreed that she never sent the appellant an email asking for a refund of her monies. Tendered in evidence was a piece of paper upon which was written the appellant’s details including his phone number, email address, a post office box number and the name and phone number of a lawyer.[19] The complainant said that the appellant had given her those details. The appellant, in cross-examination, asked the complainant if she had contacted his lawyers. She indicated that she had done so and was advised by the lawyer that they were no longer acting for him. That occurred in October 2016.[20]
- [16]The complainant denied that the appellant had asked her to contact him by email. She said that all of their communications were done by either phone or text.[21] She denied that the appellant ever told her that he had been in London or been sick for ten weeks.[22] The complainant agreed that she had seen the appellant in March 2018. She recalled vaguely, a text message he sent her which said “You approached me today in Burleigh and asked me to confirm a number.” The appellant provided a phone number and email address. The text continued “It is best by email. I gave you my email several times and asked you to send an email if you need me. I’m happy to repay the balance but it must be on a settlement deed prepared by a lawyer. I’ll discuss it with him tomorrow and I trust we can settle this amicably.”[23] The complainant said that during the discussion in Burleigh in March 2018 the appellant said to her “you’ve gone to the police. I cannot say anything.”[24]
- [17]Detective Senior Constable Campbell produced the bank account statement for the appellant’s Heritage Bank account.[25] It reveals that on 4 July 2015 a cash deposit of $5000 was made into the appellant’s account. His balance prior to that deposit was $23.22. On 9 July 2015 a balance inquiry was made and then $2000 was withdrawn from the account in cash. On 11 July a purchase of “Forex capital” for $1000 was made. On 28 July 2015 a further $2000 in “Forex capital” was purchased. On 3 August 2015 a deposit of $5000 was made from “Curtis SMSF Pty Ltd”. The following day $4500 in “Forex Capital” was purchased. On 11 August $500 was refunded from “Forex capital”. A further refund of $2000 was made on 15 August 2015. On 1 October 2015 a further cash deposit of $5000 was made into the appellant’s account. That same day $1200 was withdrawn in cash. A further $1000 was withdrawn on 9 October 2015. Otherwise a series of withdrawals were made from automatic teller machines until the appellant’s account had a balance of $226.06 on 28 October 2015. No other transactions were made which were purchases of “Forex capital”.
The appellant’s evidence
- [18]The appellant’s account was that he had discussions with the complainant about her financial situation and what she wanted to do. She became interested in the appellant’s trading in foreign exchange and commodities index. The complainant gave him $5000 on 4 July 2015 and again in October. He offered to train her in index trading. The appellant said that his intention was always honest. He had no intention of defrauding her. The appellant said that he told the complainant that, as she did not have a trading entity herself she was unable to offset any kind of passive income against expenditure. As a consequence, the appellant offered to assign an equivalent value trade to her, to the amount she was contributing. He told her that he would record it as a loan and would treat it as a loan. He said that he did so because it provided him with an obligation to repay the capital and because as a loan it was not a taxable event at law. He considered that was the responsible thing to do so that the complainant did not pay tax on the earnings.[26]
- [19]The appellant admitted receiving $5000 on 4 July 2015 from the complainant.[27] He said that he already had an existing trade at that time so he just assigned the equivalent value to her from his already existing trade. The appellant said that when he invested money in “forex capital” his approach was to include a “hedge” so that there would be income in both directions. He admitted talking to the complainant about the “hedges” and told her that he was confident of a good result. He said that when she gave him the $5000 he gave her exhibit 3 which was the note containing his details. He said that he made it clear that if she had to contact him it should be done by email because he often had his phone turned off. She never contacted him by email and some months later she contacted his lawyer who was then no longer acting for him.
- [20]The appellant produced a document in evidence which is titled “ForexCT”. He said that ForexCT was a broker and that the document was his statement containing details of his trades. That document became exhibit 7. The document commences on 9 July 2015 with a deposit of an unknown sum. The appellant marked with an arrow the trades that he had assigned to the complainant.
- [21]That document is said by the appellant to indicate that on 9 July 2015 a deposit was made to his trading account. The document does not indicate the amount of the deposit. The appellant said that the document reflects the trades that he assigned to the complainant. The first trade resulted in a profit of $134.80. The appellant also identified the “hedges” which he said didn’t enter the market so were “closed out”. There are a number of those apparent hedges where the profit is indicated as “cancelled”.
- [22]The appellant said that looking at the document there was no loss incurred in any of his trades. The appellant said that he made a $5000 profit for the complainant very quickly, before Christmas 2015. The appellant said that he had a dispute with the broker and his account was shut down completely which caused him an immediate loss of all of the profit. He made a complaint to the Financial Ombudsmen about the conduct of the broker. The appellant said that the statement demonstrates that he made 103 profitable trades.
- [23]The appellant said that he left Australia in March 2017 for a number of months. When he returned he was sick for a period of 10 weeks after having been bitten by a spider. He said that the phone that he took overseas with him was prepaid. He didn’t realise that the service ran out and so he was unaware that the complainant had contacted him. He also did not have international roaming on his phone. The appellant said that it was the complainant’s obligation to contact him by email as he had requested. She did not do so and when she couldn’t get in contact with him she panicked and went to the police.
- [24]The appellant said the references in his bank statement to “Forex capital” were deposits to his trading account. He referred to the deposits of $1000, $2000 and $4500. The reference in his bank statement to a refund from Forex Capital was money returned to him from his profitable trades. That was on 15 August 2015. When asked did any of those profits get passed onto the complainant the appellant said that as soon as the complainant asked for $2000 he returned it to her. The appellant gave an unresponsive answer to the question whether any of the $2000 he received on 15 August 2015 was passed onto the complainant.
- [25]In cross-examination the appellant admitted that he used some of the money deposited into his account by the complainant for cash withdrawals but said that was because the money was a loan from the complainant to him. He had already assigned trades to her from his ForexCT account. He admitted that when he first commenced trading he practised trading on what the prosecutor described as a dummy account. He also agreed that Forex education suggests dummy trading until you regularly make a profit on those dummy trades. It was suggested to him that the document he produced was in fact a printout from a dummy trade. The appellant denied that to be the case and said that it was a live trade. (The learned Magistrate treated the document as representing live trades.)
- [26]He agreed that there was no written agreement between himself and the complainant. He agreed that the complainant had asked him a few times for some type of written confirmation of the transfer of the money and the reason for it. The appellant said that the complainant was aware that he was assigning trades to her in his already existing account. She asked him how it was going and he told her that it was progressing well but that he had to manage the “hedge”. He continued to repeat that he assigned trades in his already existing account to the complainant. He was not able to answer the question as to how much the initial trade from his own funds was for other than saying it was for far more than the $10 000 that the complainant provided him.
- [27]The appellant said that the first time the complainant asked him for money was on 16 July 2016 when she needed dental work. She asked for $2000 and he gave that back to her within two days of the request. The appellant said that if the complainant wanted him to return money to her all she had to do was send him an email and she never did that. When asked if he said to the complainant that the investment could not fail and that she was going to make money he said that wasn’t exactly what he told her. He said that his approach was to use “hedging” and that he never closed out of any trade until it was in profit. He denied losing her money and blamed it on the broker illegally closing his account. The appellant denied that the complainant asked him for a receipt at any time. She only ever asked how things were going. The appellant said that he kept track of the trades by making notes but did not bring those notes to court because the ForexCT statement of account demonstrated that the trades were profitable.
- [28]The appellant said that the complainant asked him how things were going and that indicated that she wanted to invest another $5000. He denied saying to her that the market was booming. At most he talked about movement in the market. The appellant said that it was Ms Bishop who indicated to him that she wanted to invest more money.
- [29]When cross-examined about the withdrawals from his account after Ms Bishop deposited $5000 into his account on 1 October 2015 the appellant reiterated that the monies were provided to him as a loan so whilst he had an obligation to repay Ms Bishop he was entitled to use the funds once they were deposited.
- [30]The appellant was unable to recall how much money he deposited into his ForexCT trading account but said it was substantial and more than the money that Ms Bishop had contributed. He agreed that it was less than $500 000.
The learned Magistrate’s reasons
- [31]After setting out a comprehensive summary of the evidence the learned Magistrate said she found Ms Bishop to be an honest and credible witness. She gave the best evidence that she could taking into account the passage of time. She did not attempt to overstate or embellish her evidence.
- [32]The learned Magistrate said that she found the appellant to be an unconvincing witness. His evidence was not credible and she did not accept most of what he said. She described his evidence as to his trading on the foreign exchange commodities index as unnecessarily complicated and confusing. She considered that the confusing nature of his evidence was an attempt by him to cover up the fact that he could not answer important questions such as around the dates and amount of profits notionally assigned to Ms Bishop or why he never furnished her with any documentation when she repeatedly asked for such. She considered that the appellant’s inability to explain how much money he had in his ForexCT account; his inability to say whether he was receiving Centrelink benefits at the time; and his inability to provide any detail as to the efforts he made to keep in contact with Ms Bishop, all demonstrated that he was evasive and deflective.
- [33]The learned Magistrate accepted that the appellant had experience in trading on the foreign exchange commodities index and that he may have had an active ForexCT account, however she rejected his evidence that he notionally assigned an existing trade to Ms Bishop, monitored it and kept a record of her notional profits. The learned Magistrate considered that there was no support for the appellant’s claims and that the surrounding detail eroded his claims. She said that whilst exhibit 7 corroborated the appellant’s claim that he was actively trading, nothing in that document provided any evidence that he assigned a trade to Ms Bishop.
- [34]The learned Magistrate commented on the appellant having not responded to Ms Bishop’s repeated requests for documentation evidencing where her money was invested; the lack of any documentation in respect of the purported assigned trades; the lack of any evidence that he regularly updated Ms Bishop as to the state of her profits; and the lack of any evidence of the appellant’s records as to the dates and amounts of profit that Ms Bishop’s trades had earned.
- [35]The learned Magistrate considered the appellant’s evidence that the monies provided by Ms Bishop were a loan, to be contrived to explain away that he did not use the money deposited by Ms Bishop for any sort of investment purpose.
- [36]The learned Magistrate described the appellant’s evidence as “evasive, deflective and deliberately unresponsive [on] crucial issues”. It was “largely self-serving and significantly contrived”.[28]
- [37]Having found the appellant’s evidence as unconvincing the learned Magistrate said that she set it aside and considered the remainder of the evidence that she did accept. She found that the appellant held himself out to be a person investing money for clients when in fact he had no other clients; he falsely told Ms Bishop that she would not lose money when it would have been apparent to the appellant from the very document he tendered that there was a substantial degree of risk involved. She found that the appellant did not invest Ms Bishop’s money and that he used the moneys for cash withdrawals and general purchases. She considered that the appellant was low on funds and that he made misrepresentations to Ms Bishop to induce her to deposit the cash into his account. He did not invest the money on her behalf but used it for general purposes.
- [38]She was satisfied beyond reasonable doubt that the appellant obtained the two sums of money dishonestly. She was further satisfied that the prosecution had negatived beyond a reasonable doubt that the appellant did not hold any honest belief that he was entitled to act as he did.
Grounds of appeal
Ground 1 – the prosecution did not present sufficient evidence to discharge its onus of proving that the appellant intended to defraud or act dishonestly.
- [39]The prosecution was required to prove that the appellant obtained the money from Ms Bishop and that he did so dishonestly. To prove the appellant acted dishonestly the prosecution was required to prove that what the appellant did was dishonest by the standards of ordinary, honest people.[29] A person may act dishonestly by those standards without appreciating that the act is dishonest by those standards.
- [40]It was not in dispute at the trial that the appellant obtained the money from the complainant. The central issue was whether he did so dishonestly. The learned Magistrate identified in her reasons the “knowledge, belief or intent”[30] which she found rendered the acts of the appellant dishonest. She found that the defendant did not invest Ms Bishop’s money as he said he would but rather used it for his own purposes.
- [41]The learned Magistrate had a distinct advantage in hearing and seeing the complainant give evidence and hearing and seeing the appellant’s denials of guilt. On a reading of the transcript there were good reasons to reject the appellant’s exculpatory evidence. I agree with the learned Magistrate’s description of his evidence as being unnecessarily complicated and confusing. His explanation for how he assigned a trade to Ms Bishop seems nonsensical to me. For entirely unexplained reasons the appellant produced the trading statement from his ForexCT account which did not demonstrate the first trade that he supposedly undertook on behalf of Ms Bishop. The appellant said in trading Ms Bishop’s money he made a note at the time, of the proportion of the trade that he had assigned to her.[31] Yet the only document he produced was the Forex CT trading statement on which he had drawn three arrows which do not at all reveal that he assigned a trade to her or the proportion of it.
- [42]The appellant’s evidence that he told Ms Bishop that he would record the money she gave him to invest for her as a loan is not supported by any other evidence. His explanation for why he said that he would record it as a loan was because that imposed on him an obligation to repay her money, yet he did not repay the money other than a figure of $2000. It also makes no commercial sense that he would engage in what is a risky form of investment on behalf of another person and agree to accept all the risk for no benefit. I also consider that his second explanation, for recording it as a loan so that Ms Bishop did not have to pay tax on any profit she made, to be unlikely. The appellant and Ms Bishop were not in any form of personal relationship. They were housemates. Ms Bishop’s taxation obligations would have been of no consequence to the appellant. The appellant’s evidence that it would have been negligent for him not to inform her of her taxation obligations seems to me to have been an attempt by him to suggest that he owed some sort of duty to the complainant akin to that of an accountant. This was in my view an attempt by him to bolster his own evidence.
- [43]The appellant’s evidence that he recorded the monies as a loan was in my view a convenient way to explain away why, as soon as Ms Bishop made deposits into his account, he withdrew the monies in cash or otherwise used them for his own purposes. By way of example on the very day that Ms Bishop deposited $5000 into the appellant’s account on 1 October 2015 the appellant withdrew $1200 in cash. He also made purchases that same day using those monies at cafes, service stations and supermarkets. Those transactions clearly demonstrate to my mind, that the appellant was using Ms Bishop’s money for his own purposes and was not investing those monies for her as he said he would do.
- [44]The appellant in cross-examination accepted that Ms Bishop had asked him for some form of written confirmation or documentation on a few occasions however provided no explanation for why he did not provide such. Rather, he provided a convoluted answer that was unresponsive and provided no explanation for why he did not provide her with any documentation.[32]
- [45]The appellant was also unable to answer the simple question how much was his initial trade for other than saying that it was much larger than Ms Bishop’s five or ten thousand dollars.[33]
- [46]The appellant said that his broker artificially closed his account when it grew to $107 000 yet he could not say when that occurred or even if it was before or after July 2016 when he returned $2000 of the complainant’s money.[34] His evidence about the extent and success of his trading strains credulity when considered with his evidence that he was receiving Centrelink benefits at the time of his trial and could not say whether he was receiving such benefits at the time of the offending.[35]
- [47]Despite the appellant’s evidence that he treated the money as a loan he made no efforts to return it (other than $2000 for urgent dental treatment). His evidence that he did not receive an email from the complainant so did not know that she wanted her money returned seems contrived.
- [48]There is nothing “glaringly improbable” or “contrary to compelling inferences” in the reasoning of the learned Magistrate, or in her rejection of the appellant’s denials of guilt or her acceptance of the evidence of the complainant.
- [49]Accepting the complainant as a credible witness as the learned Magistrate did, her repeated requests for some form of documentation evidencing her investments and the appellant’s failure to provide them at any time provide cogent evidence that he did not invest the money on her behalf. The ForexCT statement adduced in the appellant’s evidence does not reveal that the appellant had assigned trades to the complainant. The bank statement indicates that upon the complainant depositing $5000 on 4 July 2015 the appellant withdrew $2000 of that money in cash on 9 July 2015. That withdrawal in cash was not money that he used to invest on the complainant’s behalf. Indeed the statement indicates that on 11 July he purchased $1000 of “Forex Capital” and on 28 July purchased $2000 of “Forex Capital”. The appellant’s purchases of Forex Capital do not give any impression that he was investing the complainant’s money as he indicated. The next credit to the appellant’s bank account on 3 August 2015 appears to be from a self-managed superannuation fund, after which deposit the appellant purchased $4500 worth of Forex Capital. The trades that he was engaging in as appear in the ForexCT statement when considered with his statement of account do not sit comfortably with his evidence that he was very quickly making a profit whether for the complainant or himself.
- [50]The bank statement also reveals that upon the complainant depositing a further $5000 on 1 October 2015 the appellant simply used that money for either cash withdrawals or making purchases at cafes, service stations, supermarkets and other retail stores. This represents compelling evidence that the appellant did not invest any of that second $5000 sum on behalf of the complainant.
- [51]I am satisfied on the evidence that the appellant on the two occasions that he obtained money from the complainant did not intend to invest that money on her behalf and that he used it for his own purposes. I am satisfied that his acts in obtaining the money on each occasion were dishonest according to the standards of ordinary, decent people.
Ground 2 – Mens Rea, a long held principle upheld by the High Court
- [52]The appellant’s argument appears to be he did not have an intention to defraud Ms Bishop at the time he took the money from her. He argues that his return of $2000 to her is not consistent with an intention to defraud. He further argues that this was nothing more than a commercial agreement between himself and the complainant; that she did not request the return of the monies; and that his failure to return the monies does not equate to an intention to defraud.
- [53]As set out above I am satisfied that on the two occasions when the appellant obtained money from the complainant that he did not intend to invest that money on her behalf as he indicated he would and on each occasion used the money for his own purposes. His returning $2000 to the complainant at a time when she needed urgent dental treatment does not impact on my finding that at the time he obtained the money he did not intend to invest it on her behalf. I would infer that the monies were returned so that the appellant could continue to string the complainant along letting her believe that he was acting in her interests.
- [54]It was not the failure to return the money to the complainant that is the gravamen of the offence, it was obtaining the money in the knowledge that he did not intend to invest it on the complainant’s behalf.
- [55]The appellant’s arguments are based on an acceptance of his evidence. The learned Magistrate rejected his evidence. She had the benefit of seeing him and hearing him give evidence. As indicated in these reasons there is nothing in the appellant’s denials that creates any doubt in my mind that at the time he obtained the monies he did not intend to invest the monies on behalf of the complainant.
Ground 3 – There was no written demand from the complainant for the return of the monies.
- [56]It is irrelevant that there was no written demand from the complainant for the return of the monies. It was the appellant’s knowledge at the time he obtained the monies that he did not intend to invest the monies on the complainant’s behalf, which rendered his conduct dishonest. That he did not return any of the monies (other than $2000) is evidence relevant to an assessment of his intention at the time he obtained the monies. Despite the appellant speaking with the complainant in March 2018 and being aware that she had gone to the police, the appellant never made any further repayments to the complainant despite his own evidence that the monies were a loan. That conduct is inconsistent with his evidence that the monies were a loan and inconsistent with his evidence that he did not intend to defraud the complainant.
- [57]There is nothing in this ground of appeal.
Ground 4 – The conduct of the hearing without representation was contrary to section 651(2)(b) of the Criminal Code.
- [58]Section 651 of the Criminal Code applies only if there is an indictment before the District or Supreme Court and enables summary offences to be dealt with in that Court.
- [59]Section 651 had no application to the appellant’s trial as his trial was conducted in the Magistrates Court. There was no indictment before the District or Supreme Court.
Ground 5 – The appellant was denied natural justice
- [60]The appellant argues that he was not prepared for the trial, did not receive legal advice and could not defend himself. He further argues that he was denied an opportunity of giving an explanation as he was cut-off during the trial.
- [61]On the morning of his trial the appellant applied for an adjournment for the purpose of obtaining legal representation. The learned Magistrate noted that the matter had been before the court for 14 months. On 30 April 2019 (the second of the hearing dates) the appellant informed the court that he had applied for Legal Aid funding. The hearing was adjourned on that date because there was no Magistrate available to hear the matter. It was relisted for 30 May 2019. The appellant informed the court that he had been advised the day prior to the hearing that his application for Legal Aid had been refused. A little later he said that he was yet to hear whether his application had been refused. He also indicated that he was expecting to come into a substantial sum of money upon which he would then be in a position to retain a lawyer privately.
- [62]A solicitor who submitted the application to Legal Aid informed the court, that had been done on 2 May 2019. She also provided information to the court as to her contact with the appellant with a view to providing a merit opinion as to his prospects of success at trial. She indicated that she requested all material from the appellant which he delayed providing her. She had a lengthy conference with him on 29 April 2019. She sought an extension from Legal Aid for funding for the trial. That was refused on the morning of 30 April 2019.
- [63]The complainant and police officer had attended court on three occasions to give evidence.
- [64]The appellant was given ample opportunity to obtain legal representation. His delay in providing material to a solicitor who was preparing a merit assessment for him suggests that he was deliberately delaying proceedings. The applicant placed no evidence before the court as to any likelihood of his receiving funding to retain lawyers. He was given many opportunities across 14 months to ready himself for trial. He was not denied the opportunity to obtain legal representation. Consistent with his conduct in prosecuting this appeal, the matter has been delayed for two years awaiting the appellant to obtain legal representation. He still remains unrepresented.
- [65]The learned Magistrate provided information to the appellant as to the trial procedure as required in order for the appellant to have a fair trial.[36] She provided assistance to the appellant when objections were taken.[37] She reminded the appellant of the role of the prosecution in proving the offence beyond reasonable doubt and that he did not have to prove anything, before calling on him to decide whether to give or call evidence.[38] She also informed him of the advantage to him in the order of addresses if he did not go into evidence.[39] The learned Magistrate permitted the appellant to tender a document despite objection being taken to it on the basis that it did not comply with the strict rules of admissibility contained in section 95 of the Evidence Act 1977.[40]
- [66]The appellant quite ably represented himself at trial. He had brought with him the evidence he relied upon (exhibit 7) to support his denials that he acted dishonestly. He understood the process of putting his version of events to the complainant. He was able to take objections. Far from cutting him off, the learned Magistrate assisted the appellant give his evidence-in-chief and gave him ample opportunity to explain himself.
- [67]There is nothing in the transcript of the proceedings that gives rise to any sense that the appellant was denied a fair trial or natural justice.
- [68]There is nothing in this ground of appeal.
Ground 6 – Claim of right
- [69]The appellant argues that he had an honest belief at the time he received the monies to do as he did and that he had no intention to defraud. He thus had a defence pursuant to section 22(2) of the Criminal Code.
- [70]The learned Magistrate at the end of her reasoning said she considered that the prosecution had negatived beyond reasonable doubt that the appellant held any honest belief that he was entitled to act as he did.
- [71]The appellant’s defence at trial was in the nature of a ‘claim of right’, in that he maintained that he was entitled to act as he did with the complainant’s money and that he did not intend to defraud her.
- [72]A consideration of section 22(2) was not necessary in this case. The offence of fraud has the specific element of dishonesty which if proved is inconsistent with and indeed negates an honest claim of right to do the act.[41] For the prosecution to exclude section 22(2) it had to prove beyond reasonable doubt, that when the act, that is the obtaining of the money, was done it was done either (1) not in the exercise of an honest claim of right, or (2) with an intention to defraud. For the very same act of obtaining the money the prosecution had to prove that act was done dishonestly. The meaning of dishonesty has been accepted as explaining an intention to defraud.[42]
- [73]The learned Magistrate’s finding was that at the time the appellant obtained the money that he did not intend to invest it on the complainant’s behalf as he said he would do but rather use it for his own purposes. By obtaining the money with that intention the appellant’s conduct was dishonest, that is done with an intention to defraud the complainant.
- [74]Section 22(2) had no work to do in the context of this trial.
- [75]The appeal against conviction is dismissed.
Appeal against sentence
- [76]The appellant has appealed against his sentence on the basis that it was manifestly excessive. He has not made any submissions supporting that ground of appeal.
- [77]The appellant was sentenced on 19 June 2019 to 12 months imprisonment with a parole release date of 19 October 2019 (after serving four months). Criminal convictions in South Australia, New South Wales and pursuant to Commonwealth legislation were admitted. That showed convictions for dishonesty offences dating back to 1974. In 2000 the appellant was sentenced to five and one half years imprisonment for offences of dishonesty brought by the then Australian Securities Commission. The offences related to breaches of the Corporations Law. The appellant was next convicted of two counts of fraud in Southport on 2 April 2019. He was sentenced to 9 months imprisonment to be wholly suspended for two years. The two offences of fraud were committed in July and September 2013. They related to the appellant befriending a woman and obtaining money from her on the basis that he would provide training in Forex currency trading. The amount involved was $2250.
- [78]The appellant was 65 years of age at sentence. He was receiving Centrelink benefits at the time of his sentence. He was the Director of a company which was negotiating contracts for the purchase of jet fuel. He said that he was able to pay compensation to the complainant if ordered.
- [79]In sentencing the appellant the learned Magistrate referred to the appellant taking advantage of the complainant who was an unsophisticated and trusting woman. She had regard to the appellant’s previous conviction in 2000 and the sentence that he received. She also had regard to the recent convictions for fraud which were of a like nature. Despite having been ordered to pay compensation he had not done so. The learned Magistrate considered that the appellant was lacking in remorse. She referred to section 9 of the Penalties and Sentences Act 1992, in particular that imprisonment was a sentence of last resort. She determined however that imprisonment was the appropriate sentence in light of the amount of money involved. She reduced the period of time that the appellant would have to spend in actual custody to take into account the hiatus in his offending between 2000 and 2013 and then again until 2015.
- [80]The sentence of 12 months imprisonment appropriately recognised the criminality of the appellant’s offending aggravated by his recent history of offending in a like manner. The parole release date was generous in light of the appellant’s absence of remorse. The appellant has not established that the sentence imposed was manifestly excessive.
- [81]The appeal against sentence is dismissed.
Footnotes
[1] Commissioner of Police v Al Shakarji [2013] QCA 319 at [7] per Morrison JA referring to Fox v Percy (2002) 214 CLR 118 at [25].
[2] Allesch v Maunz (2000) 203 CLR 172 at [23].
[3] (2019) 266 CLR 129 at [55] per Bell, Gageler, Nettle and Edeman JJ.
[4] Transcript 1-38
[5] Transcript 1-37
[6] Transcript 1-45
[7] Transcript 1-52
[8] Transcript 1-37
[9] Transcript 1-47
[10] Transcript 1-40
[11] Transcript 1-46
[12] Transcript 1-48
[13] Transcript 1-50
[14] Transcript 1-54; 1-55
[15] Transcript 1-55
[16] Transcript 1-56
[17] Transcript 1-58
[18] Transcript 1-60
[19] Exhibit 3
[20] Transcript 1-67
[21] Transcript 1-68
[22] Transcript 1-69
[23] Transcript 1-70; exhibit 4
[24] Transcript 1-71
[25] Exhibit 6
[26] Transcript 1-103
[27] Transcript 1-104
[28] Reasons page 8.
[29] Peters v The Queen (1998) 192 CLR 493, 367-368 [18]; R v Dillon; ex parte Attorney-General (Qld) [2015] QCA 155.
[30] Peters v The Queen (1998) 192 CLR 493 at [18]; R v Lyons [2021] QCA 136.
[31] Transcript 1-109 line 30 -
[32] Transcript 1-127
[33] Transcript 1-144
[34] Transcript 1-142
[35] Transcript 1-147
[36] See MacPherson v The Queen (1981) 147 CLR 512
[37] Transcript page 62 line 1; page 76
[38] Transcript page 93
[39] Transcript page 95
[40] Transcript page 99
[41] Macleod v The Queen (2003) 214 CLR 230 at [43]-[46] per Gleeson CJ, Gummow and Hayne JJ; R v Perrin [2018] 2 Qd R 174 at [94] per Morrison JA.
[42] Peters v The Queen (1998) 192 CLR 493 at [18].