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1. From about September 2016 until July 2018, the appellant was the president of the Gungahlin United Football Club, an organisation which supports and fields various children’s and premier league football teams in Canberra. For some time during his tenure as president, the club operated without a treasurer and then with an interim treasurer. The appellant’s role, particularly absent the treasurer, extended to paying the expenses of the club, being limited by the club’s constitution to “normal running costs or other expenditure authorised by the executive committee”. From September 2017 until June 2018, the appellant operated the club’s main bank account, and at times, unilaterally operated that account. He also had possession of a debit card attached to a separate club account.

2. The club’s constitution prohibited payments to members of the executive committee, other than for the purpose of reimbursing expenses reasonably made on behalf of the club. The prosecution alleged that the appellant made numerous transactions involving the club’s funds for his personal benefit.

3. After a five-day trial in the Magistrates Court, the appellant was found guilty of 65 charges of theft contrary to s 308 of the Criminal Code 2002 (ACT): Bakes v Alexander (No 2) [2022] ACTMC 19. He was found not guilty of five charges. An appeal to a single judge of this Court was allowed in part, with the appeal judge quashing the convictions in relation to 17 charges and confirming the convictions in relation to the remaining 48 charges: Alexander v Bakes [2023] ACTSC 103 (Appeal Judgment or AJ). Annexure A to these reasons is the schedule attached to the Appeal Judgment, which sets out the magistrate’s and the appeal judge’s findings in respect to the guilt of the appellant.

4. This is an appeal from the orders made by the appeal judge.

Appeal Grounds

5. The appellant filed an amended notice of appeal, which at the time of hearing alleged two grounds (two further grounds having been abandoned shortly before the hearing of the appeal).

6. First, that in determining the appeal, “his Honour’s findings of guilt were unreasonable and could not be supported by the evidence except in relation to charges CC2021/4887- CC2021/4902”. The uncontested charges relate to payments of the appellant’s Macquarie Leasing account in relation to his private motor vehicle.

7. Second, that “[t]he jurisdiction of the Magistrates Court to amend the information under section 28 of the Magistrates Court Act 1930 (ACT) was not enlivened such that the amendments were not validly made”. Alternatively, “his Honour erred in finding the amendments to the charges during the hearing were “desirable or necessary to enable the real question to be decided[”] and “made without injustice to the [appellant]”, for the purposes of section 28”. It is the primary aspect of this ground on which leave to amend is challenged. The respondent challenges the grant of leave, primarily on the basis that the matter is raised for the first time, and it has no merit. Given that it relates to the jurisdiction to enliven s 28, in our view it is appropriate that leave to amend be granted.

8. Five grounds were agitated before the appeal judge as described in the Appeal Judgment at [8]. The two grounds most relevant for these proceedings are as follows: (1) The learned magistrate erred in accepting an amendment to all charges the subject of conviction (ground a); and (2) The findings of guilt in respect of all charges except CC2021/4887 – 4902 are unreasonable and cannot be supported by the evidence (ground e).

9. Notably, although the appellant submitted before the appeal judge, and in the grounds of appeal and written submission in chief in this Court, that the convictions erroneously relied on coincidence or tendency reasoning, that ground was abandoned before the hearing of the appeal in this Court. It follows there is no challenge to that aspect of the appeal judge’s reasoning.

Ground 1: the verdicts were unreasonable and not supported by the evidence

Preliminary issue

10. An issue arose as to the nature of this appeal, particularly as this appeal ground as drafted reflected the language used in s 37O(2)(a)(i) of the Supreme Court Act 1933 (ACT) (SC Act).

11. As apparent from the introduction above, the appellant appealed the magistrate’s findings of guilt to the ACT Supreme Court. That appeal was pursuant to Division 3.10.2 of the Magistrates Court Act 1930 (ACT) (“MCA”), relevantly, ss 208 and 214. This is an appeal from orders of that appeal judge, allowing the appeal from the magistrate’s decision in part and thereby confirming a number of the magistrate’s convictions. Accordingly, this is an appeal against orders made by the appeal judge by way of rehearing pursuant to s 37O(1) of the SC Act, not an appeal against conviction, to which s 37O(2) is directed. In other words, this is not an appeal against a conviction alleging the verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, the language of s 37O(2)(a)(i).

12. That is not to suggest that an appeal on the basis the convictions were not supported by the evidence could not be sustained. Rather, it is to emphasise the importance of clarity about the nature of the appeal.

13. Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].

14. In contrast, when considering whether a verdict is unreasonable, the Court must ask itself “whether it thinks that upon the whole of the evidence it was open to [the Tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-495; and see Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 (Dansie) at [7]-[8]; Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758 (Lang) at [251].

15. During the hearing of the appeal, the appellant relied on observations in Muench v McCue [2020] ACTCA 17, submitting that the Court there approached an appeal of this nature applying the test enunciated in M v The Queen. The context was the same as this case, being an appeal pursuant to ss 208 and 214 of the MCA from the magistrate to the single appeal judge, and from the appeal judge to the Court of Appeal. The appeal was based, inter alia, on the verdict being unreasonable and not supported by the evidence (the language of s 37O(2) of the SC Act). The Court there observed at [93], that both parties misconceived the nature of the appeal. It is plain from that judgment that the Court received little assistance on that topic. Ultimately, it did not decide the basis on which the appeal was brought, as it considered the debate concerning s 37O(2) academic. Suffice to say the Court at [109] approached its task as if it was an appeal from a jury verdict alleged to be unreasonable, on the basis the same principles must apply when considering whether a finding of guilt by a magistrate or judge sitting alone was unreasonable. This also appears to have been the approach in KA v Linden [2021] ACTCA 22 at [65]–[70], in respect to a ss 208 and 214 appeal from the magistrate and subsequent appeal to this Court, although again this does not appear to have been the subject of debate. This is to be contrasted with the Roberts v Rhodes [2014] ACTCA 20 at [10], where the Court approached the nature of the appeal as one of rehearing.

16. That there appears to be an issue with the nature of the appeals to a single judge, and then to this Court is highlighted in McFarlane v Van Eyle [2022] ACTCA 68 (McFarlane), where this Court was divided as to which test should be applied to an appeal under s 214 of the MCA. Chief Justice McCallum noted the difference in statutory language between s 214 of the MCA and common form appeal provisions, and expressed doubt as to whether a verdict being “unreasonable” was a proper ground of appeal under s 214 of the MCA. Mossop J identified at [18]-[21] that the hearing before the appeal judge was a rehearing, requiring the establishment of error, but approached the matter on the basis that it had been argued, namely that an assertion that the verdict was unreasonable, in the sense described in M v The Queen, was an available ground of appeal. In a concurring judgment, at [94]-[96], Kennett J further elucidated this position: [94] Appeals are creatures of statute and, therefore, the circumstances in which an appeal court is required or permitted to set aside a conviction depend on the particular terms of the statute under which the appeal is brought. [95] M v The Queen involved an appeal from the verdict of a jury in the District Court of NSW, where s 6 of the Criminal Appeal Act 1912 (NSW) as then in force empowered the Court of Criminal Appeal to set aside the conviction if it concluded that the conviction was “unsafe and unsatisfactory” or there was otherwise a “miscarriage of justice”. In Dansie v The Queen [2022] HCA 25; 96 ALJR 728, the test enunciated in M was treated as applicable to an appeal from a judge alone; however, that appeal had come to the Court of Criminal Appeal of South Australia under s 158 of the Criminal Procedure Act 1921 (SA), which is framed similarly to s 6 of the NSW statute (but using the more modern language of “unreasonable or cannot be supported by the evidence”). Section 37O(2) of the Supreme Court Act 1933 (ACT), which applies to an appeal brought to this Court from a conviction entered in the Supreme Court, is also in similar terms. The test in M has thus been treated as applicable to appeals to this Court from convictions entered in the Supreme Court: eg Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91, [149] (Murrell CJ), [225]-[226] (Loukas-Karlsson J), [271] (Charlesworth J). [96] Section 214 of the Magistrates Court Act 1930 (ACT), which governed the appeal from the magistrate in this case, uses different language. It does not limit the power to set aside a conviction to cases where the verdict is unreasonable or involves a miscarriage of justice. Instead, it requires the Supreme Court to have regard to the evidence given below and empowers the Court to draw inferences of fact. It confers a qualified power to receive fresh evidence. This form of appeal can be placed within the category of appeals by way of rehearing (in that it is clearly neither a hearing de novo nor an appeal in the strict sense). That categorisation does not of itself answer questions as to the available grounds of appeal or the function to be performed by the Supreme Court (which must depend on construing the particular statutory language in its context), although it points to certain “ordinary incidents”: Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541, [29]-[31] (Gageler J). One such ordinary incident is that the appeal is a process for the correction of error. An appeal under s 214 has been held to be an appeal of that kind (Lukatela v Birch [2008] ACTSC 99 at [17]-[24]; assumed to be correct in Roberts v Rhodes [2014] ACTCA 20 at [10]). The same view was reached, in relation to the comparable statute in New South Wales, in McNab v Director of Public Prosecutions [2021] NSWCA 298; 106 NSWLR 430 at [24]-[27] (Bell P), [89]- [90] Basten and McCallum JJA).

17. We agree with that description as to the nature of an appeal pursuant to s 214 of the MCA. Kennett J held at [97]–[98] that unreasonableness of the verdict is a “species of error” that will justify setting aside a verdict in an appeal governed by s 214, but that an appellant “does not need to make out a ground pitched at that level” in order to succeed. The Court did not address the provision under which an appeal is then brought to this Court from an appeal decision under s 214.

18. Accordingly, an appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.

19. It may also be accepted that unreasonableness is a species of factual error which may, if established, justify this Court setting aside the appeal judge’s orders pursuant to s 37O(1) of the SCA.

20. In determining whether there is a material legal, factual or discretionary error, the appellate court must observe the ‘natural limitations’ of proceeding on the record, including, as observed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23]: …the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.

21. Consideration of whether the appellant has demonstrated error in the magistrate’s decision must also take account of the pressures of the Magistrates Court.

22. It must always be borne in mind that the appeal is a “process for the correction of error”: McFarlane at [96]. Two consequences flow from this. First, the onus is on the appellant to demonstrate that there is error in the decision below: Allesch at [23]; Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 at [19]. Second, it is incumbent on the appellant to identify the alleged error in the magistrate’s decision in their grounds of appeal: Carroll v R [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [127].

23. If an appellant identifies the ground of appeal from the Magistrates Court as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding. If an appellant wishes to challenge any intermediate factual finding, such a challenge should be pleaded as a specific ground of appeal.

24. The parties made no submissions challenging the correctness of the approach taken by the appeal judge to resolution of this ground of appeal before him: AJ [81]-[83].

25. All that said, the principles relevant to properly assessing the evidence discussed in cases considering whether a verdict is unreasonable, are nonetheless relevant and applicable on the present rehearing, in which one of the grounds of appeal pleaded is that the verdict is unreasonable, and no challenge is made to any intermediate factual finding. It is appropriate to highlight, particular to this appeal, the following points.

26. In a case where the evidence is circumstantial, this means that the appeal court must weigh all the circumstances in deciding whether it was open to the tribunal of fact to draw the ultimate inference that guilt has been proved beyond reasonable doubt. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open: Coughlan v The Queen [2020] HCA 15; (2020) 267 CLR 654 at [55]; and see Lang at [251].

27. In The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 (Hillier), in the oft-cited passage at [48], the High Court said: Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. …

28. In The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 (Baden-Clay); the Court at [47], citing Hillier and Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104, explained that: For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

29. It has been said in relation to an appeal from a verdict on indictment by a trial judge sitting alone that the court “will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings”: Dansie at [16].

30. Here, this is an appeal from an appeal judgment. The appeal judge was entitled to approach his task in that manner, as is this Court on appeal.

31. As the Court in Baden-Clay, citing Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [9], observed at [48]: …a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.” Consideration

32. As explained above, this is an appeal by way of rehearing. Given the first ground of appeal, the errors alleged are the factual findings of guilt in respect to the charges. To determine whether those conclusions were open to the appeal judge, it is necessary to assess the evidence. If, in relation to a charge it is established that the finding of guilt was not open, error has been established in relation to that charge.

33. The evidence relied on by the prosecution before the magistrate was documentary, in addition to calling witnesses. The appellant did tender exhibits, but otherwise did not call evidence.

34. It is appropriate at the outset to refer to the position of the appellant, the circumstances in which he joined the club and the evidence regarding the management of club funds.

35. The appellant was brought into the club because of his commercial experience. The appellant accepted as much in his interview with the police, where he described his commercial background, that he had owned two companies, and his immediate previous employment was as CEO of a publicly listed company.

36. When he commenced his position as president, there were other persons on the club’s executive committee including a treasurer, Ms Hampson. Her evidence related to the proper use of club debit cards and funds and the club’s financial procedures. When cardholders used their club debit cards they were required to produce a receipt to enable her to reconcile the transactions. She had conversations with the appellant on a number of occasions when he had not done so, seeking receipts for transactions on his club debit card. Prior to the club issuing the debit cards to cardholders, if any person used their own money for a club purchase, they were required to submit a form and receipt to the treasurer for reimbursement. That was also the position after the club ceased using the debit cards.

37. Ms Hampson explained that although there was no written policy, she explained to the whole executive committee that club cards should only be used for club business, primarily for the canteen, as larger transactions should come to the committee for approval. Her evidence was that the committee agreed.

38. Mr Tarnawskyj, committee member since 2016, gave evidence that today there are no cardholders and the process of submitting receipts for reimbursement is the same as at 2017 and 2018: all the receipts are stapled with a reimbursement form or a ledger usually done in Excel, the form is filled out, gets approved and gets paid. Even expenses clearly incurred for the club would not be reimbursed without a receipt.

39. Ms Hampson gave evidence that the executive committee required all online electronic transfers from the club’s bank account to be entered by one person and authorised by a second, so that there were two signatories to exercise good governance on the spending of public monies. When an issue arose in March 2017 that the appellant had not followed that process on one occasion, the appellant was instructed by the committee to ensure that there were two signatories on the account. As far as Ms Hampson was aware, that had not occurred.

40. Further, in relation to the electronic transfer of funds from the club bank account, on some occasions the appellant recorded the purpose or recipient of the payment, at least in general terms, as reflected in Annexure A. This reflects, inter alia, that he was aware of the importance and necessity of recording the purpose of transfers made using club money.

41. It can be readily inferred from the appellant’s commercial background and his position as president of the club that he well understood he must properly account for his use of the club’s money. Any submissions now advancing reasonable possibilities consistent with innocence in relation to each of the charges are to be considered in that context. This is noting that the appellant recorded no purpose in relation to a significant number of transfers, which account for most of the charges now under consideration.

42. It is also important to recall, as noted above, the club’s constitution prohibited payments to members of the executive committee, other than for the purpose of reimbursing expenses reasonably made on behalf of the club.

43. As apparent from Annexure A, there were four categories of payments the subject of the charges. In this appeal, the Court is concerned with 6 charges in category 2, which involved the use of the appellant’s club debit card, being three payments to Telstra and three to ACT Road User Service Dickson. The Court is also concerned with 33 charges in relation to category 3, being electronic transfers from the club bank account into the appellant’s personal bank account. Those charges relevantly fall into two sub-categories: first, those where there is some description for the transfer (identified as "Defender deposit", "Tif samples", "Office 365", "Test 2", and "Towing"); and second, 28 transfers where there is no purpose or recipient recorded for the transfer, which are simply identified as "Linked Acc Trns".

44. It was accepted that the critical issue was whether the prosecution could establish each transaction the subject of a charge, representing an appropriation of property belonging to someone else, was dishonest according to ordinary standards, and known to the appellant to be dishonest.

45. The prosecution case was circumstantial. It relied upon a variety of circumstances to prove beyond reasonable doubt each transaction was relevantly dishonest and known to be dishonest. The respondent described that in relation to each category of charges, the circumstances surrounding each transaction were relevantly similar, including the amount of the transaction, description, evidence of (or absence of evidence of) the club’s spending, and the appellant’s role and knowledge of the club and its expenditure.

46. Before addressing the charges, it is appropriate to refer to some matters of more general application.

47. First, the respondent submitted that some of the arguments the appellant now makes in relation to why findings were not open to the appeal judge, were not made below, and are advanced (at least in their current form) for the first time on this appeal. This was said to be relevant to considering whether error is established. This relates primarily to what are now suggested to be reasonable possibilities consistent with innocence not excluded by the evidence. Some of these submissions were made by the appellant for the first time in his written submission in reply.

48. The submissions will be addressed in considering the individual counts. Suffice to say at this stage that as a general proposition, this submission can be accepted. Although the new factual submissions can be made as this is a rehearing (and there is no prejudice arising, for example, as to how the case was presented below), the weight to be attached to them will depend on the circumstances of the charge under consideration. That they were not made either before the magistrate, or the appeal judge (and other submissions were advanced as to the reasonable possibilities consistent with innocence), may reflect on whether the current submission is reasonably open on the evidence. That is particularly so in this instance, where the appellant now puts the submission on the basis that the suggested conclusion is compelling. Moreover, as recognised in the passages from Dansie and Baden-Clay recited above at [29] and [31], the conduct of the parties below can impact on the assessment of the evidence.

49. Second, a general submission repeatedly advanced by the appellant, was that the prosecution did not lead certain evidence. Again, we will address that issue when considering the individual charges. However, as a general proposition, the magistrate, and the appeal judge were to determine the matter on the evidence before them. A party is entitled to a fair trial, not a perfect one. There is no suggestion this was not a fair trial. As illustrated below, there is no basis to speculate what may have been in certain documents, the absence of which the appellant relied upon. Depending on the circumstances, the absence of a document does not inevitably lead to a conclusion that the case cannot be proved, as contended for by the appellant. Although the prosecution must exclude any reasonable possibility consistent with innocence, this does not necessarily require leading or tendering all evidence that may be available to be obtained in relation to a particular charge. The issue remains throughout, whether the prosecution has proved its case beyond reasonable doubt.

50. Third, aligned with that previous matter, the appellant pointed in written submissions to the respondent’s failure to tender a folder of receipts, emails, an assets register, the financial records of the club and the banking records in relation to his St George Bank account. All of these were said to potentially contain exculpatory evidence, the absence of which means a reasonable possibility consistent with innocence cannot be excluded. These submissions are to be considered in assessing the evidence. That said, the evidence is not necessarily as the appellant contends.

51. For example, the appellant relies on the folder of receipts that was not tendered for the possible existence of a receipt relevant to one of the charged transactions. The appellant’s submission that the folder “had lots of loose receipts” is misleading. This evidence was very limited. The informant in cross-examination gave evidence there was a folder of receipts, but said that they related mostly to service stations, to purchases of cigarettes and fruits items. There is no evidence of how many receipts, but he accepted more than two. The appellant during cross-examination of the informant, having heard the above answers, said that was not a “very important point”, and turned to a separate line of questioning. Although that statement is not evidence, it reflects the appellant’s view of the significance of this evidence at that time. The informant’s description was not challenged, and the appellant did not seek to tender the documents, despite tendering others. It is also unclear what is said to be possibly in the folder of receipts, bearing in mind that most of the category 3 offences record no purpose for the transfer of funds.

52. We note that the appeal judge observed at [85]: It is apparent that Mr Chen’s instructions contained nothing to suggest the relevance or importance of those receipts. After that evidence was given, he said “I’ll move on. That’s not a very important point, considering the time”. Nor did he call for the production of the folder with loose receipts in it. There was no evidence to suggest that fruit or cigarettes would be purchased from service stations for club use. I will bear those circumstances in mind when I consider the submissions of Mr Chen which refer to that folder of receipts as being “potentially exculpatory material that was never tendered”.

53. That approach was not challenged in this Court.

54. The above comments in relation to the receipts apply similarly to the submission that there was an “abundance of emails that may have contained receipts”. Again, this evidence was no higher than the informant and Ms Hampson accepting in cross-examination the possibility there might be some emails containing receipts justifying transactions on the appellant’s part.

55. Ms Hampson’s evidence was that the club did not have an “asset register”. Rather, there was a register of the actual sporting equipment held. It is entirely unclear how this, given the other evidence, is said to be relevant. Not surprisingly, it did not feature in the submissions before the magistrate. The absence of the financial records of the club were also said to be significant. We note that this submission runs counter to the appellant’s submission that the financial management of the club was in chaos. In any event, again, in light of all the circumstances of the case, it is unclear how this evidence could be relevant.

56. As to the appellant’s St George account records, this was raised for the first time in written submissions in reply. The informant agreed to the proposition put to him in cross-examination before the magistrate that there were “no transactions of interest” in the St George account. The appellant did not ask any further questions or challenge that answer in any way. Nor did he tender the documents (again, noting the appellant did tender some other documents in his case). This reflects the appellant’s decisions in conducting the trial. The consequence is that the evidence that the St George account contained no transactions of interest is unchallenged. The appellant submitted that in failing to adduce those statements, the prosecution did not exclude the possibility that the appellant’s transfers into his NAB account were for reimbursement of club expenditure incurred using his St George account. That submission must be considered in the context of the unchallenged evidence about the St George account. This is so, noting also that this submission did not feature below.

57. That said, as explained above, the failure to provide some evidence may affect a Court’s ability to be satisfied that an offence is proved. That is dependent on the facts of the given case. The matters relied on in this case, as explained above, are to be considered with all the evidence. In considering the appellant’s submissions to this Court and the Court below focused on the absence of evidence, the Court is not entitled to speculate. Nor is the court to decide the case by asking the question of whether the prosecution could have called further evidence.

58. Fourth, insofar as the appellant submitted the evidence of the lay witnesses from the club was vague and unreliable, some examples relied upon said to illustrate this are not borne out by a proper reading of the evidence. For example, contrary to the submission that “Ms Hampson believed the Club debit cards were 'credit cards', Ms Hampson confirmed her understanding the cards were debit cards, but they were referred to as “credit cards” across club. We do not accept the appellant’s general characterisations. We have considered the evidence of each of the individual witnesses in the context of all the evidence in assessing this ground of appeal.

59. Fifth, the appellant did not direct any submission to some of the charges, particularly in relation to those in category 3, where there is a purpose entered. In relation to those counts, there is no submission or suggestion that the reasoning of the appeal judge, or the magistrate is erroneous in some manner. The onus is on the appellant to demonstrate error. Where there is no suggestion of any error in reasoning applied by the appeal judge in relation to a particular charge, it should not be for this Court to trawl through the evidence unaided in an attempt to determine if there is some error. In any event, we have considered all of the evidence. No error is established.

60. Finally, given the nature of the appellant’s submissions, it is important to recall that a possibility consistent with innocence must be a reasonable one, it must be based on more than mere conjecture or speculation.

61. We turn to consider the counts.

Category 2 charges involving the club debit card

62. In relation to the Category 2 transactions, the appellant specifically submitted before the appeal judge (and the magistrate) that there were two hypotheses consistent with innocence that could not be excluded on the evidence: namely, it was possible that someone else made the transactions using his club debit card, or that the appellant accidentally used the club debit card when intending to make personal purchases.

The Telstra payments

63. Three charges relate to payments to “Telstra Bill Paymnt Melbourne” using the appellant’s club debit card: on 9 March 2018 ($398.14); 10 May 2018 ($571.95); and 15 June 2018 ($354.05) (together the Telstra Payments).

64. The appellant submitted that: the prosecution did not adduce evidence of any Telstra invoices issued to the club or evidence from Telstra’s business records and therefore no reliable or independent evidence as to the club’s actual liability to Telstra; the appellant’s club debit card had been used to pay Telstra on 8 December 2017 $345.99, which was not the subject of any criminal charge; and in the absence of: (i) evidence demonstrating the relevant transactions were applied to an account in the appellant’s name, and (ii) Telstra invoices issued to the club or Telstra business records tracing where those payments were directed, the appeal judge was wrong to find beyond reasonable doubt that the Telstra Payments could not have been made for the benefit of the club.

65. The bank statements reflect there was a direct debit payment of $100 per month from the club’s NAB account to Telstra. It can readily be inferred that this regular payment related to the services Telstra provided to the club. The appellant submitted before the magistrate, although not before this Court, that the Telstra Payments could be for arrears owed to Telstra. That was rightly rejected by the magistrate as mere conjecture. There is nothing in the evidence to suggest any arrears were owed and these were very specific and different amounts, pointing against that explanation.

66. The appeal judge said at [65] that there was no error in the magistrate’s consideration of whether the possibility of payment of arrears was a real one, including the magistrate’s conclusion at [50]: “it defies logic that the defendant, as the sophisticated and experienced businessman he was, would attend to such arrears in such an ad hoc and piecemeal fashion”.

67. The appeal judge at [127] concluded that the evidence established that those payments could not have been for the club’s regular Telstra bill, which was $100 per month and the varying amounts suggested that the payments related to a particular Telstra bill, rather than paying off some arrears that the club owed to Telstra, there being no evidence of such arrears at all. That aspect of his Honour’s reasoning was not challenged. That the appellant’s payment to Telstra in December 2017 with his club debit card was not the subject of a charge does not give rise to a reasonable doubt establishing the appeal judge was in error in concluding he was satisfied of the appellant’s guilt on the Telstra Payment charges. We note that submission appears to have been raised for the first time in this Court, and in the appellant’s written submissions in reply. As noted above at [49], the absence of certain evidence does not inevitably lead to a conclusion of a reasonable possibility consistent with innocence. Having considered the totality of the evidence and the circumstances in which the transactions were made, including the context outlined above at [34]–[42], the appellant has not established any error in his Honour’s conclusion.

68. No error is established in relation to those charges.

ACT Road User Service (ACTRUS) payments

69. These charges relate to three payments by the appellant using the club debit card made on 4 June 2018 for $303.00, $313.00 and $148.00 respectively.

70. In this Court, the appellant submitted that he purchased a trailer for the benefit of the Club, pointing to the Executive Special Meeting Minutes of 21 July 2018, which noted he had purchased for the Club a “Gator” all-terrain vehicle (ATV) and a trailer. He submitted that the evidence was the Club did run and operate a road registrable vehicle, being the trailer, and both the magistrate and the appeal judge were factually incorrect about that. It was also submitted that the payments on 4 June 2018 the subject of the charges were made on the same day that a payment to QBE Insurance for $419 was made (which was not the subject of a charge). The appellant was critical of the prosecution’s failure to provide evidence of what the ACTRUS payments were for, evidence of registration of the trailer, whether use of that trailer had been the subject of any fines, taxes or fees or the purpose of the QBE Insurance payment. That failure, he submitted, left open the possibility the card payments were for club business. It was also submitted to be relevant that an invoice for the ATV was issued on 29 May 2018, only days before the ACTRUS payments and QBE Insurance payment. He submitted that once it is accepted that any one of the ACTRUS payments related to the Club's trailer, or even related to the ATV or to the uncontroversial QBE insurance payment, it must follow that the prosecution has not excluded all reasonable hypotheses inconsistent with guilt. Further, he submitted the appeal judge did not engage with that reasoning, and while accepting the magistrate’s reasoning, did not expose any of his own independent reasoning processes.

71. The appellant was found guilty on these three charges, and the appeal judge at [130]- [131] recited and adopted the reasoning of the magistrate at [49]: I take judicial notice that payments to the ACT Road User Service involve the payment of motor vehicle related taxes, fees or fines. It was clear from the evidence that the club did not run or operate a registerable motor vehicle. It is also clear that the payment of personal taxes, fees or fines would not be legitimate club expenses.

72. The appeal judge noted at [126] the appellant’s submission about the possibility of the relevant payments being personal payments made by mistake on the club card, which was not accepted.

73. It is significant to note that the appellant did not advance any submissions in relation to these three charges before the appeal judge, and therefore did not criticise the magistrate’s reasoning. Accordingly, the appeal judge was faced with unchallenged reasoning supporting the convictions.

74. Further, the submissions now advanced were not those before the magistrate, where the submission as to the debit card counts were as explained above. Namely, that it was possible someone else made the transactions using the appellant’s club debit card. The appellant did not submit that the trailer or the ATV were registrable vehicles. Rather, at its highest, the submission before the magistrate was that the prosecution had not proven “who was responsible for paying any registration fee associated with the trailer (if any)”.

75. Although the appellant positively submitted in this Court that the club did run and operate a road registerable vehicle, being the trailer, that submission is not supported by any evidence. To the contrary, the evidence was that the club never owned any vehicles for road use. The trailer was a club asset that stayed at the club and was used to transport equipment to the fields. The ATV was only used for transporting equipment on the fields and not for road related purposes. This evidence arose from acceptance of propositions put in cross-examination by the appellant, reflecting that he was not suggesting during the hearing that these vehicles were for road use. As the respondent correctly submitted, the highest the cross-examination in relation to the trailer and ATV reached was as to their purchase and use for the benefit of the club. The submissions now advanced are inconsistent with the conduct of the matter below, and speculative. The same is true of the submission that the existence of the payment to QBE Insurance raises a reasonable possibility that the ACTRUS payments were for the benefit of the club.

76. It may be accepted that the appeal judge’s reasoning is an acceptance of the magistrate’s reasoning. There is no reason to doubt that the appeal judge did his own assessment, as his Honour expressed. That does not bear upon this ground of appeal, given the conduct of the appellant’s case below, with the magistrate’s reasoning not being challenged. We also note that there is now no ground alleging inadequate reasons.

77. The appellant has not established any error with the primary judge’s conclusion on these charges.

Category 3 charges involving electronic banking transfers Transfers with no explanation recorded

78. As apparent from Annexure A, 28 counts relate to money from the club’s NAB bank account to the appellant’s personal NAB bank account with no explanation recorded. For those transfers the statements simply read “Linked Acc Trns”.

79. Various explanations were postulated by the appellant, with the common theme that the transfers were reimbursement for moneys legitimately spent for club purposes.

80. When considering the individual charges, it is appropriate to consider the nature of the transfers and the context in which they occurred. These amounts were all round figures, ranging from $100 to $750 dollars, amounting to over $11,000 in six months. Some were on the same or consecutive days. For example, two transfers totalling $1000 were made on 27 December 2017. Transfers totalling $1250 were made on 28 March 2018 and the following day. There is no evidence of equivalent payments being made from the appellant’s personal account that correlate to the transfers.

81. This is also in the context where, as described above, as club president he was plainly aware of the importance of maintaining records of transactions to enable club funds to be accounted for.

82. The appellant’s submission emphasised the transfers could have been to repay the appellant for groceries purchased for the canteen. However, in so far as it was suggested that the evidence reflected the appellant frequently purchased large quantities of goods from Woolworths, Costco, and Coles for the Club's canteen and other purposes, that is not borne out on a proper reading of the evidence. It is a submission advanced in more detail in this Court than previously made.

83. In support of the above submission, the appellant detailed purchases made by the canteen managers using their club debit cards. The appellant submitted that he made similar transactions with his personal account consistent with those expenses. The examples provided might be understood to be the high point in illustrating the submission. Notably, it is apparent that the figures transacted by the canteen managers are substantially less than the amounts regularly transferred by the appellant, and they are very specific amounts. The evidence is that the expenses incurred by the canteen managers were made using their club debit cards. As noted above at [38]-[39], the evidence also establishes that electronic transfers from the club’s account were required to be entered by one person and approved by another. For committee members to be reimbursed for any expenditure using personal funds, they were required to provide documents or receipts so that the club money could be accounted for.

84. We note also for context, the appellant was the subject of criminal charges for transfers recorded as being for, inter alia, “Costco” and “Canteen”, for which he was found not guilty.

85. The appellant’s submission, based primarily on purchases of groceries and goods from retailers, is entirely speculative. The submission that his retail purchases are more than a single person would make (and therefore were made for the benefit of the club), is without foundation and does not assist his case. In any event, the examples of his purchases provided, again assuming the examples are the high point of the submission, are substantially lower than the transfer amounts the subject of the criminal charges.

86. The appellant also relied on the fact of the St George accounts not being tendered, submitting that the reimbursements could be for purchases from that account. The evidence in respect of the St George accounts was unchallenged. That submission is addressed above and is based on no more than speculation.

87. The appeal judge concluded at [90]-[93]: [90] Similar considerations apply to all of the electronic transfers where the appellant has failed to indicate a reason for the transfer. That is not to consider the question of the appellant’s guilt on those charges in a global fashion, but it is to say that when the charges are individually considered, the evidence in relation to each charge demonstrates similar features, namely the transfer was for a round figure, there is no evidence of anything being bought for the club for the relevant amount at around the time of the transfer and if it was a legitimate reimbursement, one might have expected the appellant to have recorded what he was being reimbursed for. [91] I will elaborate on that last feature. It is difficult to understand why, if the transfer were a genuine reimbursement for monies paid by the appellant personally, the appellant would not have recorded in some way what he had spent his money on. On the other hand, there is a clear explanation for why he would not do so if the transfer was not a legitimate one: providing an explanation for any transfer makes it easier for the legitimacy of the transfer to be investigated. [92] I am satisfied beyond reasonable doubt that the appellant was responsible for each of those transactions which were dishonest according to the standards of ordinary people, the appellant knowing that to be the case. [93] Accordingly, I am satisfied of the appellant’s guilt on all charges concerning electronic funds transfer where they are described as “Linked Acc Trns”.

88. That reasoning is entirely sound.

89. Having considered all of the evidence, no error is established.

“Towing” transfer

90. This charge relates to a transfer from the club’s bank account to the appellant’s personal account on 12 December 2017 of $450, recorded as “Towing”. This is one of the charges that the appellant did not separately address in written or oral submissions in this Court. Below, the towing was submitted to relate to a caravan, intended to be used as a mobile canteen for the club. However, there was no evidence that the towing charge related to towing that van. The submission was entirely speculative. In any event, importantly, it was not a club van, but was purchased by the appellant and Mr Tarnawskyj, and was their personal property. Even if the transfer related to the van, there is no basis to infer there was any entitlement to reimbursement for the towing fee.

91. The primary judge’s conclusion at [75]-[76], and [94] is plainly correct.

“Defender Deposit” transfer

92. This charge relates to a transfer from the club’s bank account to the appellant’s personal account on 4 May 2018 of $750, recorded as 'Defender Deposit'. As the appeal judge noted, the club did purchase an all-terrain vehicle described as a MY18 Defender on 29 May 2018.

93. It may be accepted, as the appellant submitted, there was an email from the Canberra Motorcycle Centre (CMC), dated 13 March 2018, relating to a deposit, but it was not “requesting a $500 deposit to secure a vehicle”. Rather, it was a response from CMC confirming that the vehicle could be held with a deposit of $500. That was in reply to an email from the appellant saying that he was working with the club sponsor and the bank to find the best way to purchase or lease the vehicle, and inquiring whether the vehicle could be held with a deposit. The series of emails in that chain between the appellant and CMC which lead to the sale are not evidence that any deposit was actually paid. Moreover, as the appeal judge concluded, the invoice for the purchase, dated 29 May 2018, sets out the price of the vehicle and accessories, dealer delivery, an administration fee, and stamp duty. There is no entry for a deposit. It is apparent from the invoice that the price was reduced by a “dealer discount”. The appellant’s submission that it is unknown what is in the dealer discount, and that it could have included a deposit paid by the appellant, is implausible. A deposit is not a discount. In an otherwise detailed account, it would be expected that had a deposit been paid, it would have been itemised on the invoice. The balance required for settlement is not reduced to account for any deposit. There is no reference in that invoice to a deposit having been paid: AJ [105]- 108]. In any event, although there is an entry in the appellant’s personal bank statement for a payment to CMC on 4 May 2018 of $500, this charge relates to a transfer of $750 from the club account to the appellant. The suggestion that the difference in amount is explicable because the recorded description may not have been a comprehensive description of all the purposes for which the transfer was made is merely conjecture.

94. We note that before the appeal judge, the appellant submitted simply that the Court did not have the complete records of the appellant’s dealings with CMC, and therefore it could not exclude the possibility of the transfer being for a transaction incurred for the club. No evidence was referred to in support of the submission.

95. No error is established in the appeal judge’s conclusion that he was satisfied the appellant did not pay a deposit of $750 to CMC for the vehicle purchased by the club. The transfer of $750 from the club account to his personal account could not have been for reimbursement of such payment.

“Tif samples” transfer

96. This charge relates to a transfer from the club’s account to the appellant’s personal account on 15 January 2018 of $450, said to relate to “Tif samples”.

97. This is a charge which the appellant did not separately address in this appeal, either in writing or orally. Consequently, there is no alleged error identified in the conclusion reached by the appeal judge.

98. In the Court below, the appellant submitted that this related to the club’s uniform supplier, and that the respondent did not lead evidence explaining the contractual arrangements between the club and this supplier. Nor was a representative from the supplier called to give evidence. Therefore, it could not be excluded that the payment was for the club.

99. Despite the limited submissions below, it is plain the appeal judge considered all the evidence. His Honour concluded at [102]-[103]: [102] Charge 4934 relates to a transfer of $450 for “Tif samples”. There was evidence at the hearing that this was a reference to the club’s uniform supplier “This is Football” (T:289). Certainly, the purchase of uniforms was a legitimate club expense. However, unlike many of the purchases the subject of a charge, there was evidence as to how “This is Football” was paid. That evidence was “so we could either do an Internet transfer or raise a bank cheque depending on the amount that we were paying” (T:289.8). I understand that evidence to suggest that the internet transfer would be from the club’s bank account and that where the amount to be paid exceeded the transaction limit, payment would be made by a bank cheque. [103] Given that evidence, it makes no sense for the appellant to have paid any money to “This is Football” from his own bank account and then to obtain reimbursement by transferring money from the club’s account to his.

100. That reasoning was not challenged by the appellant. Having considered the evidence, no error in the appeal judge’s conclusion is established.

“Office 365” transfer

101. This charge relates to a transfer from the club’s account to the appellant’s personal account on 8 January 2018 of $250, said to relate to “Office 365”. Again, this is a count to which no submissions were made in this Court. The written submission below was simply that there was no investigation of a contractual relationship between the club and Microsoft Office, and therefore it could not be excluded the transfer was a legitimate payment for club purposes.

102. The appeal judge concluded it would not be surprising if the club used Office 365 and payment was required. However, his Honour went on to conclude at [100]: Even so, this is another transaction where it would have made more sense for the appellant to pay Microsoft directly from club accounts rather than use his own money and then need to reimburse himself. That is even more the case when, if this was a legitimate transaction, the software which is being paid for would be on a club computer with, presumably, access to the club bank accounts.

103. Again, this reasoning is not challenged. Having considered the evidence, the reasoning was plainly open. No error in the appeal judge’s conclusion is established.

“Test 2” transfer

104. This charge relates to a transfer from the club’s account to the appellant’s account on 5 December 2017 of $100, for “Test 2”.

105. Again, no submissions were made in this Court about this charge.

106. The appeal judge at [96]-[97], remarked that no submissions were advanced before him. He observed that: [96] Perhaps the most likely explanation for the description “Test 2” is that this was the second attempt by the appellant to test whether he could transfer money from the club’s bank account to his. If so, it is notable that there is no entry whereby the appellant transfers $100 back from his account to the club’s, indeed there is no such entry for any amount at any time. [97] It is possible to speculate on other reasons for the transaction, but I cannot think of any legitimate reason for that transaction, and none was suggested as a possibility by Mr Chen. It has features in common with the electronic transfers where no recorded reason was stated, especially the difficulty that anyone investigating the transaction would have in identifying what it was for. Once again, if $100 was being spent for club purposes, it is hard to understand why the payment would not have been made directly from the club’s accounts rather than being made from the appellant’s account with reimbursement being then required.

107. Again, this reasoning is not challenged. If the explanation is that it was a test, there is no corresponding return of the funds. Indeed, within days a further $500 was transferred with no explanation. Considering all of the evidence, the conclusion of the primary judge was plainly open. No submission suggested otherwise.

108. No error is established. Conclusion

109. The appellant has not established the first ground of appeal in respect to any of the charges. Ground 2: the amendment of the charges

110. Before summarising the appellant’s submissions, it is helpful to set out the context in which the amendments were made, which is summarised at AJ [16]-[20].

111. In summary, the appellant was initially charged with 108 counts of obtaining property by deception. In those charges, the property was described as “money”. These matters were to be heard on 10 May 2021, but when, in its opening address, the prosecution gave notice that it intended to rely on the statutory alternative charges of theft, the appellant complained that he had not been provided with adequate particulars. It was at this stage that the then presiding magistrate (Magistrate Lawton) suggested to the prosecution that the charges should allege a “chose in action” rather than “money”. The prosecution did not agree, but the hearing was vacated so that particulars of the charges could be provided in writing.

112. On 7 February 2022 the matter was listed for a hearing before a different magistrate, Magistrate Theakston. Notwithstanding Magistrate Lawton’s earlier suggestion, the charges continued to particularise the property which had been stolen as “money” rather than a “chose in action”.

113. At the conclusion of the prosecution case, the appellant made a no case submission, inter alia, on the basis the prosecution had failed to prove that “money” had been stolen. The appellant submitted that if anything had been stolen, it was a “chose in action”. The prosecution submitted that the property was correctly described as “money”, but as a fallback position, if it was wrong then it would seek the Court’s leave to amend all the theft charges to allege theft of a “chose in action”.

114. The magistrate accepted the appellant’s submission regarding the legal description of the property. However, under s 28 of the MCA, his Honour allowed each charge to be amended so that it referred to the property as a “chose in action”. In Bakes v Alexander [2022] ACTMC 10 (No Case Reasons), his Honour held at [5] that while there is: … no evidence that actual money was stolen, there is evidence that an intangible right was appropriated. As this was what the prosecution opened on, I am satisfied there would be no injustice to the defendant, I will amend those charges to particularise the property accordingly.

115. The appellant submitted that the magistrate erred in allowing the amendment, and the appeal judge erred in upholding it.

116. Relying on R v Hawcroft [2009] ACTSC 145; (2009) 234 FLR 339, the appellant submitted that he was entitled to an acquittal, as the prosecution case wrongly particularised the property said to have been stolen as money, rather than a chose in action. He submitted that it was too late to allow an amendment which had the effect of fundamentally changing the case from one which he had successfully met to a completely different case. It was unjust to the appellant and had the effect of negating' or rendering nugatory a real issue in dispute to be decided in the case, being the identity of the property said to have been appropriated. Had the appellant remained silent and not made a no case submission, the conviction appeal would have been guaranteed. The appellant submitted that a prerequisite for jurisdiction under s 28 of the MCA is that an objection is taken, which did not occur in this case. Moreover, he submitted the appeal judge erred in requiring the appellant to demonstrate prejudice. Unless the court can be satisfied that the amendment would not be unjust, then the court must decline to allow the amendment.

117. The respondent accepted that the prosecution’s application to amend the charges came as “late as it could have possibly come” and came after the prosecutor was on notice about the issue. It accepted that although this does not reflect well on the prosecution, the question was whether the amendment was necessary to determine the real dispute, and whether the amendment would occasion injustice. The respondent submitted that the appellant did not dispute the real issue in question was whether the transactions were dishonest and known by the appellant to be dishonest. The appellant clearly knew the case against him, and he knew what was alleged to have been stolen was the funds held in the club’s bank account – a form of property. So much was conceded by the appellant’s counsel. The only prejudice to the appellant was a loss of tactical advantage, that the hearing was determined on the merits and according to the real issue in dispute. The appeal judge correctly noted the comments of the Court of Criminal Appeal in Borodin v The Queen [2006] NSWCCA 83 at [25], that injustice does not result merely because a defendant loses a technical point based on the inconsistency between the statement in the charge and the evidence to support it. The nature of the property was not an issue in dispute but was merely subject of an incorrect description in the charge. The respondent challenged the appellants reliance on, inter alia, Hawcroft. The appellant failed to demonstrate any error on behalf of the magistrate in the proceedings below and has failed to point to any error in the appeal judge’s approach in determination of the same. Consideration

118. The power to amend is in s 28 of the MCA, which is as follows: 28 Power of court to amend information (1) If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided. (2) The court must not make an amendment under subsection (1) if it considers that the amendment cannot be made without injustice to the defendant.

119. That provision is not to be considered in isolation. Section 27 addresses what is required to be included in a charge in relation to the description of a person or property and offences. It states: 27 Description of people and property and of offences (1) Such description of people or things as would be sufficient in an indictment is sufficient in informations. (2) The description of any offence in the words of the Act, ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, is sufficient in law.

120. The offence for which the appellant was convicted is s 308 of the Criminal Code 2002 (ACT) (Criminal Code): 308 Theft A person commits an offence (theft) if the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property.

121. The elements of the offence are not in contention and are as follows: (1) the defendant appropriated something and did so intentionally; (2) that appropriated was property and the defendant was at least reckless about that; (3) the property belonged to someone else and the defendant was at least reckless about that; (4) the obtaining was dishonest according to the standards of ordinary people and the defendant knew that (defined); and (5) the defendant intended to permanently deprive the other person of the property.

122. The charges were relevantly identical. Referring to charge 4887 as an example: That he, in the Australian Capital Territory, on 11 December 2017, dishonestly appropriated property, namely, money, to the value of $914.85, belonging to Gungahlin United Football Club with the intention of permanently depriving them of property.

123. The amendment deleted the reference to “money”, replacing it with “chose in action”.

124. In the above context, several observations can be made.

125. First, as can be seen from s 27 of the MCA, the description of any offence using the words of the law creating the offence is sufficient to comply with the requirement imposed by the MCA. It follows that the phrase “namely, money, to the value of $914.85” was superfluous to requirement. It was unnecessary, and without which the sufficiency of the charge could not have been challenged. For completeness we note that for the purpose of the Criminal Code, “property” includes “a thing in action”: s 3 of the Criminal Code; s 2 of the Legislation Act 2001 (ACT).

126. Second, that position accords with the nature of the elements of the offence. As correctly recognised by the appeal judge at [22], what the prosecution must prove are the elements of the offence. The description of the property is a particular not an element of the offence.

127. It is uncontroversial that an accused is entitled to be given sufficient details of a charge, and particulars of the act, matter or thing alleged to be the foundation of the charge so they know what case it is they have to meet: see for example Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489; John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508. However, it does not follow that all those particulars in an information or indictment are material to proof of the offence, such that failure to prove those particulars necessarily results in an acquittal. As described by Wells J in R v Pfitzner (1976) 15 SASR 171 (Pfitzner), "[p]articulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer."

128. By way of example, it is well established that dates in the particulars of a charge are not a material matter unless an essential part of the offence: R v Dossi (1918) 13 Cr App R 158; Pfitzner; R v Liddy [2002] SASC 19; (2002) 81 SASR 22. The appeal judge at [23]- [24] provides other examples, which are unnecessary to repeat here. Suffice to say the appeal judge at [25] concluded that “it would be expected that the precise legal categorisation of property alleged to have been stolen would also be something which does not have to be proved beyond reasonable doubt for an accused to be found guilty”. We agree in the circumstances of this case.

129. In determining whether a particular is material to a charge, regard is had not only to the terms of the information, but the manner the prosecution conducts its case at trial: Pfitzner at 185-186, 191-195, 215. Here, the appellant was well aware of the case he had to meet. As the appeal judge concluded at [34] “the appellant was under no misapprehension as to what it was he was said to have done”. That finding is not challenged. This is not a question of inadequate particulars having been provided, but purely a technical question of the description of the legal character of the property. The prosecution was required to establish that property had been stolen. There was no dispute that it was property which was stolen. The type of property was not a material particular in the circumstances of this case. Accordingly, it did not require amendment.

130. Third, the appellant’s argument was based on Hawcroft. There the accused was charged with the theft of money from trust funds held in her capacity as trustee for five beneficiaries. It was submitted that the charges could not be made out because if she used trust funds for her own purposes, she did not steal sums of money but rather choses in action. Marshall J accepted that submission at [18], concluding that “if the accused stole anything, it was a chose in action and not the actual $2,000”. His Honour concluded at [22]: Charges must be framed with precision to identify correctly and allege properly the property to be stolen, in cases such as this one, in accordance with the principles of banking law….

131. Consequently, Marshall J directed an acquittal in relation to the charges.

132. Hawcroft has been referred to only once, and this was in Kingdon v State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449. That reference was in relation to an argument which alleged that the evidence at trial was incapable of establishing the appellant had stolen money. As described at [1], there the appellant contended that their actions in transferring the funds from one bank account to another were incapable of constituting the offence of stealing, or alternatively, were incapable of constituting the offence of stealing with which the appellant was charged because the bank credits with which she dealt were not 'money', but choses in action, with the further consequence that the appellant could not have been guilty of engaging in a transaction that involved stolen money. There the charges were framed in terms that the person stole various specified amounts of money, the property of an identified person. Although the appellant relied on Hawcroft, the Court concluded at [19] it was distinguishable on the basis that the appellant was charged with stealing property of a certain value, not money. The Court, having considered the meaning of the term “money”, concluded that the concept of money had a broad general construction, referring to cases including, inter alia, R v Hunt (1996) 88 A Crim R 307 (Hunt), which considered the term money in s 178A of the Crimes Act (NSW). In considering that meaning, Smart J observed at 317: In general speech the sum of money entered in the books of the bank standing to the credit of a customer is described as money. Mainly, only lawyers and tax accountants speak or think of choses in action.

133. That observation may readily be accepted. After referring to Hunt and other authorities, the Court at [38] noted that none of the cases to which it had been referred, and which support a broader construction of the term 'money' were referred to the court in Hawcroft or addressed in the reasons given.

134. We also note that in Hawcroft, there is no reference in the brief reasons to any consideration having been given to whether the property was an element of the offence, the nature of particulars or the materiality of a particular alleged in the charge. The assertion at [22] in Hawcroft, referred to above at [130], is very broad and does not find general support in the authorities concerning the sufficiency of indictments. The decisions referred to by Marshall J do not provide such support.

135. If it is suggested by the appellant that the result of Hawcroft is that unless property which is legally a chose in action is described in that language in a charge or indictment, (as opposed to, for example “money”), a charge cannot be proved, we do not agree. We do not agree with the reasoning contained therein.

136. Fourth, the real issue in the trial was whether the appellant had done the physical acts necessary to transfer the money from one account to another, use the debit card or to withdraw cash from the club’s bank account, and if he had done these things, whether he did so dishonestly: AJ at [34]. There was no change in the prosecution case by the amendment being made. The suggestion made by the appellant in this Court that there was a real dispute about the identity of the property, cannot be accepted. It is not borne out by a consideration of the transcript of the proceeding below. As noted above, there was no dispute that it was property which was stolen and the appellant was well aware of the case he was required to meet.

137. Although the magistrate granted leave for the prosecution to amend the charges, in our view it was unnecessary to do so. In any event, no error has been demonstrated in his grant of leave to do so.

138. The appellant’s submission that a prerequisite for jurisdiction under s 28 of the MCA is that an objection be taken and that it did not occur in this case, was first raised in written submissions in reply in this Court. The appellant relied on Hudson v ACT Magistrates Court [2014] ACTSC 192; (2014) 9 ACTLR 295 (Hudson).

139. It can be accepted that the text of s 28(1) of the MCA makes the power of amendment contingent on any objection being made to either a defect in the information, or variance between the evidence and the information: see Hudson at [57].

140. An issue arises as to the meaning of “any objection” in the text of s 28, considered in context and given its purpose. It is a phrase that has been in the provision since 1930. The context in which that phrase appears is significant. The provision refers to “any objection” in relation to alternative circumstances, namely: (i) an alleged defect; or (ii) any variance between what was alleged in the information and the evidence adduced. Given the text of the provision, the power to amend also applies after the evidence has been adduced.

141. It was accepted by the appellant that the word “object” does not need to be used for an objection to be made under the provision. So much is plainly correct. It is a question of substance, not the form of what is raised. Given that the term “objection” as used in s 28 of the MCA relates to both circumstances described above, the latter being a variance in the evidence, the better reading of “objection” is to “raise an issue or disagreement with”.

142. In Hudson, Mossop J at [67] refers to the process of amendment under s 28 of the MCA described in Martin v Purnell [1999] FCA 872; (1999) 93 FCR 181 at [31]: Section 28 in effect provides that fairness to the parties may require that, before the information is determined, the informant be given an opportunity by the Court to provide a further formulation of the offence charged or to provide particulars of the facts relied on or, where the charge as expressed is duplicitous, an election confining the charge to a single offence.

143. This reflects a broad construct of the provision.

144. The magistrate concluded at [41] of the No Case Reasons, that “clearly an objection has been taken between the information and the evidence adduced at the hearing, by way of the defendant’s no case to answer submission”. That being so, he was empowered to make an amendment, unless he considered that it could not be made without injustice to the defendant. The magistrate could do that on his own motion, or on the application of a party. The prosecution applied for such an amendment, albeit as a fallback position. That said, as explained above, the prosecution position that no amendment was required is correct. The amendments were only made to particulars of an offence, where the appellant was well aware of the case he had to meet.

145. The appeal judge concluded at [35]-[36]: [35] It is difficult to see how the amendment caused any relevant injustice to the appellant. Certainly, he was entitled to be disappointed that the legal point raised by his solicitor, whilst found to be a good one, did not ultimately lead to his acquittal. He was probably even entitled to be more disappointed than usual because the prosecution’s application to amend the charges came as late as it could have possibly come. [36] Leave to amend charges laid against an accused should not be refused simply because those amendments would deprive an accused of an acquittal. In Borodin v The Queen [2006] NSWCCA 83, the accused was charged with robbery whilst armed with a knife. After the evidence of the Crown’s principal witness had been given, the prosecution sought to amend the indictment to allege that the offensive weapon was a firearm. The trial judge allowed the amendment to be made. The Court of Criminal Appeal dismissed the appeal and observed at [25]: Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.

146. That reasoning is correct. Contrary to the appellant’s submission, it is not impermissible to consider that the appellant has not identified any prejudice. That is not to reverse the onus of proof, but rather, to recognise that he is in the best position to do so. If there were particular prejudice if an amendment were to be made, he would identify it.

147. Further, the fact that the appellant could not identify any prejudice apart from what was identified at [38] of the Appeal Judgment (which was not accepted by the appeal judge), is relevant to the consideration. The magistrate considering the application, and the appeal judge, should not be left to speculate as to the prejudice that might be occasioned. The appeal judge concluded that even if he accepted the submission put by the appellant, being that he would have devoted more time to cross-examination, that having considered the transcript, his Honour failed to see any deficiencies in it. None were relied on.

148. The counts did not need to be amended, they complied with s 27 of the MCA, and any deficiency was only in particulars which were not material. In any event, the amendments having been made, there is no error established in respect of the application of s 28.

149. For the above reasons, the second ground of appeal is not established. Conclusion

150. The appellant has not established either ground of appeal and accordingly the appeal is dismissed.

I certify that the preceding one hundred and fifty [150] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: L Bellach Date: 20 December 2023 Annexure A