77 ALJR 1047197 ALR 333140 A Crim R 343[2003] HCA 24
R v Fuge (2001) 123 A Crim R 310[2001] NSWCCA 208
R v Kastratovic (1985) 42 SASR 59
R v Langham (1984) 12 A Crim R 39136 SASR 48
R v Love (1989) 17 NSWLR 608
Sigalla v R (2021) [2021] NSWCCA 22
Walden v Hensler (1987) 163 CLR 561
61 ALJR 646
75 ALR 173
Judgment (24 paragraphs)
[1]
Solicitor/Trial Advocate:
S. Croner (Crown)
File Number(s): 2018/387370
Decision under appeal Court or tribunal: Local Court
Jurisdiction: New South Wales
Date of Decision: 21 October 2020
Before: Magistrate C Huntsman
[2]
Introduction
On 21 October 2020, the appellant was found guilty in the Local Court of the following eight offences:
Sequence 1 - dishonestly obtain financial advantage or cause disadvantage by deception, between 15 November 2016 and 4 December 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 2 - dishonestly obtain property by deception, on 13 January 2017, pursuant to s 192E(1)(a) of the Crimes Act 1900.
Sequence 3 - dishonestly obtain financial advantage or cause disadvantage by deception, between 17 March 2017 and 12 May 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 4 - dishonestly obtain financial advantage or cause disadvantage by deception, between 4 October 2016 and 10 May 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 5 - dishonestly obtain financial advantage or cause disadvantage by deception, between 26 August 2016 and 17 November 2016 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 6 - dishonestly obtain financial advantage or cause disadvantage by deception, on 28 October 2016 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 7 - dishonestly obtain financial advantage or cause disadvantage by deception, on 16 November 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
Sequence 8 - dishonestly obtain financial advantage or cause disadvantage by deception, on 16 November 2017 at Sydney, pursuant to s 192E(1)(b) of the Crimes Act 1900.
The matter was heard in the Local Court on 15, 16, 17 and 18 October 2019, 19, 20 and 21 February 2020 and 24 July 2020. Judgment was delivered by the learned magistrate on 21 October 2020.
The defence raised in respect of each charge was that the appellant had a claim of right, namely, an honest and genuine belief that she was to be paid for work carried out by an organisation known as Women in Prison Advocacy Network ("WIPAN"). In convicting the appellant, the learned magistrate rejected that defence.
The appeal is brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001. Pursuant to s 18 of that Act, the appeal is to be heard by way of rehearing, on the basis of the evidence given in the Local Court proceedings. The nature of a conviction appeal was described in Dyason v Butterworth [2015] NSWCCA 52, as follows:
"[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; at [16]-[24] per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).
[27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23])… the "judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court"… While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).
[28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ."
Pursuant to s 18(2) of the Act, fresh evidence may be given on an appeal, but only by leave of the District Court and only if the court is satisfied that it is in the interests of justice that the fresh evidence be given. Here, the appellant sought leave to admit fresh evidence, namely, an employment contract dated 29 November 2009 and minutes of a special meeting of WIPAN said to have taken place on 18 December 2009. Leave was granted on 13 May 2021 by Judge Townsden to adduce that evidence.
The Crown sought to dispute the legitimacy of those documents and was granted leave to call fresh evidence in that respect by Judge Yehia SC on 7 September 2021.
The appeal was heard on 20, 21, 22 and 23 September 2021. At the commencement of the appeal, counsel for the appellant made the following admissions. First, the appellant made an admission as to the transfer of monies from the victim's account to her account or benefit in respect of each charge on Counts 1-8. Secondly, the appellant made an admission as to an element of deception insofar as false invoices were prepared to disguise the true nature of each of the transfers.
Counsel for the appellant limited the issue on appeal to be that of whether the Crown had negatived the claim of right to the monies relied on by the appellant. Thus, the scope of the Court's function was informed by and limited to that issue - see Lunney v DPP [2021] NSWCA 186 at [43].
Because the issue to be determined on appeal was confined, it was not necessary for me to read the whole of the evidence before the learned magistrate in the Local Court. Rather, I read sufficient of the transcript to gain an understanding of how the Crown established proof beyond reasonable doubt of the elements of each of the charges and the modus operandi of the appellant in obtaining the money from the victim to her own benefit or that of third parties (which was conceded by the appellant). I also read all of the evidence called on behalf of the appellant in the Local Court, together with the reasons of the learned magistrate. Having done so, I informed the parties and invited them to take me to any other relevant part of the transcript if they deemed it necessary to do so.
[3]
The fresh evidence
The fresh evidence to be relied on by the appellant comprised a copy of a written employment contract, signed by the appellant and Ms Nicki Petrou on 29 November 2009, which became Exhibit A on the appeal. The other document was minutes of a special meeting of WIPAN held on Friday 18 December 2009 at 12:00pm, which became Exhibit 1 on the appeal.
Neither document was available to the parties at the time of the Local Court hearing. In asserting her claim of right in those proceedings, the appellant relied on conversations that she said took place between her and various board members of WIPAN in or about 2009 and 2010, to the effect that due to a lack of funding, she could not be paid for work she was doing on behalf of the organisation, but that upon receipt of funding she would be paid for her work including retrospectively. It was that contention upon which she based her claim of right as being based on an honest and genuinely held belief that she had a legal right to the monies the subject of each of the charges.
The two documents (Ex A and Ex 1) came into her possession following the hearing, in circumstances where the Crown alleges that they are not genuine documents, namely, that they were created either by the appellant or on her behalf for the purpose of the appeal to strengthen her defence based on a claim of right to the monies she admitted fraudulently obtaining.
[4]
The history of WIPAN
The following chronology assists in understanding the background to the issue to be determined. The appellant, who was born on 31 December 1967, was employed from 2004 to 2011 in a business known as Breakout Design and Print. That business was owned by Mr Brett Collins, who was a prisoner advocate.
In 2007, the appellant became a co-founder of WIPAN, with Ms Marissa Sandler and Ms Nicki Petrou. It was formed to advance the rights of women in the criminal justice system through various means.
WIPAN was incorporated pursuant to the Associations Incorporation Act 2009, as a not-for-profit organisation. In 2009, it obtained a one off grant from the Office for Women, which in 2010 led to it gaining two employees.
The evidence established, and it was not in dispute, that the appellant was passionate about the objects of WIPAN and worked hard to further those objects and to obtain funding for it to continue. In mid-2014, WIPAN obtained a one-off grant from the Department of Justice and in the same year, the appellant obtained an award from Vodafone which she used by way of a donation to WIPAN to enable her to be employed on a paid basis for 12 months as CEO of the organisation. She continued in that role until 4 February 2016. Between 2012 and 2017, the appellant continued to work on an unpaid basis for Breakout Design and Print.
As set out above, the charges occurred between 15 November 2016 and 4 December 2017. During that period of time, WIPAN had become known as the Women's Justice Network ("WJN") and Ms Catherine Brennan was appointed its CEO on 1 May 2017. On 1 July 2017, it obtained recurrent funding from FACS.
[5]
The evidence establishing the offences
It is convenient to deal with the evidence establishing the offences in three separate categories. They are first, sequences 1, 2, and 5, relating to the appellant's claim of right to unpaid wages; sequences 3, 4 and 6, relating to monies used to pay creditors of Breakout Media and sequences 7 and 8, concerning monies paid to the appellant's partner.
[6]
Sequence 1
The evidence established that between 15 November 2016 and 4 December 2017, the appellant dishonestly obtained a financial advantage by electronically transferring $34,402 from WIPAN's bank account to her own NAB bank account. During that period, 27 separate transactions took place and it is not in dispute that she used false payment descriptors in each of the electronic transfers of money. For example, on 10 July 2017, the sum of $3,829.80 was transferred with the descriptor "WorkComplns17to18" then was linked with an invoice purported to be issued by "iCare workers insurance". The invoice was fabricated fraudulently by the appellant.
[7]
Sequence 2
The evidence established that on 14 January 2017, the appellant dishonestly obtained property by deception through the electronic transfer of $3,200 to pay for the installation of a new air conditioner at her home. The funds were transferred from WIPAN's account to that of Kite Air Conditioning at the ANZ bank. The payment was linked with an invoice from Bay State Constructions for "Phase 1 - Second instalment of Deposit for Complete Renovations of Suite 5 Level 2 377 Sussex Street, Sydney New South Wales". This invoice had been fraudulently falsified by the appellant.
[8]
Sequence 3
The evidence established that between 26 February 2016 and 12 May 2017, the appellant dishonestly caused a financial disadvantage to WIPAN by electronically transferring $36,964 to a printing firm Mega Press Pty Ltd. There were six separate transactions from WIPAN's account, which the appellant agreed she had made using false payment descriptors for each transaction.
On 26 February 2016, a transaction in the sum of $8,792.60 had a false payment descriptor "transfer close ac". The transaction was connected with an invoice purportedly issued by TAFE NSW on 9 February 2016, which the appellant had fraudulently created and was not genuine.
On 17 March 2016, the sum of $8,131.10 was transferred with the false descriptor "TAFE NSW". That transaction was connected with an invoice purportedly issued by TAFE NSW on 4 March 2016 for a total of $27,242.10. The appellant had created the invoice which was not genuine.
On 25 October 2016, $5,922.40 was transferred with a false payment descriptor, "EquipSGaug16". There was no invoice connected with the transaction.
On 15 November 2016, $5922.40 was transferred with a false payment descriptor, "AupAtoNov16". There was no invoice connected with that transaction.
On 12 May 2017, $6397.72 was transferred with a false payment descriptor, "RebrandPrintMay17". There was no invoice connected with that transaction.
In relation to those transactions, the appellant gave evidence that she deceptively and dishonestly used the name and authority of Ms Sandler to obtain greater access to the WIPAN accounts.
[9]
Sequence 4
Between 17 March 2016 and 10 May 2017, the appellant dishonestly caused a financial disadvantage to WIPAN by electronically transferring $55,604 to Print Force Australia Pty Ltd. Sequence 4 involves eleven separate transactions from WIPAN's accounts to Print Force's CBA account. The appellant used false payment descriptors and invoices to make these transactions. She claimed that she did so because WIPAN owed a significant debt to Breakout Media, of which Print Force was an associated company. A payment made on 17 March 2016 of $19,111 had the false payment descriptor, "Tafe NSW". As this transfer was over $10,000, the transaction required authorisation of two account signatories. The appellant used a "dongle" previously provided to Marissa Sandler, who was a board member of WIPAN until 2014.
On 10 January 2017, $9,982.80 was transferred with a false payment descriptor "ApplePurchasesDec16". This was connected to an invoice fraudulently created by the appellant purportedly issued by Apple Business Team dated 22 December 2016. On 1 March 2017, $6,448.30 was transferred with the false payment descriptor "OffAC Feb17". This was connected to an invoice fraudulently created by the appellant, purportedly from Hero Print dated 22 December 2016.
On 20 March 2017, $9,897.50 was transferred with the false payment descriptor "RebrandingMar17". This was connected with a fraudulently created invoice from Protocol Consulting Pty Ltd dated 2 January 2017. That corporation did pro bono work for WIPAN in late 2015 and early 2016 and never issued any invoice to WIPAN for that work.
[10]
Sequence 5
The evidence established that the appellant dishonestly obtained a financial advantage by electronically transferring $7,818 to her UBank account on 26 August 2016 and 17 November 2016. The transactions were made from two WIPAN accounts, the first for $4,736.95 with the payment descriptor "auditYe2016" and the second sum of $3081.63 had the payment descriptor "brokerageNov16". The second transaction was connected with an invoice purportedly issued by Allwood and Associates dated 30 July 2016, which was fraudulently falsified by the appellant. A genuine invoice issued by Allwood on 18 June 2016 had been paid by WIPAN on 23 June 2016.
[11]
Sequence 6
On 28 October 2016, the appellant dishonestly caused a financial disadvantage to WIPAN by electronically transferring $1,746.50 to Breakout Media Communications Australia Limited. The funds were transferred with the description, "HotelhireOct16". This was purported to be a reimbursement to Breakout Media for money paid in relation to the cost of attending a conference the appellant attended in Brisbane. There was no documentation supporting the payment and agreement by WIPAN to pay Breakout this money.
[12]
Sequence 7
On 16 November 2017, the appellant dishonestly caused a financial disadvantage to WIPAN by electronically transferring $30,000 to the CBA account of her partner, Ms Murray. The transfer was made with the payment descriptor "CUATransfers". This money was paid because the appellant asserted that Ms Murray had made a $30,000 donation to WIPAN, which she decided to pay back. There was no evidence of that donation. On 20 November 2017, the appellant caused three transactions of $10,000 to be transferred from Ms Murray's account back to the relevant WIPAN account. She asserted that, following the 16 November 2017 transaction, she discovered that Ms Murray had in fact donated the money to Breakout Media and not WIPAN.
[13]
Sequence 8
On 16 November 2017 the appellant dishonestly caused a financial disadvantage to WIPAN by electronically transferring $30,000 to the account of her partner, Ms Murray. It involved three separate internet transfers from a WIPAN account with the descriptor "ATOJuly2017". That payment descriptor was false. Also in evidence was an email from the appellant to an employee of WJN dated November 2017 with the subject line "PAYG Now Lodge to ATO for 01/07/17 to 30/09/17". In the email, the appellant confirmed that the PAYG was now lodged with the ATO for the relevant period and came to a total of $8,645.
On the same day, the appellant sent to Ms Murray an email attaching "the official receipt for $13,000". The email then referred to the sum of $10,000 in respect of the purchase of a motor vehicle, $2,250 for an engagement ring and another amount of $750 for a wedding band.
[14]
The fresh evidence
Ex A on the appeal was a copy of a document headed "Director/CEO-Employment Contract 1/11/2009 to TBC". The document set out in terms that the appellant was to be classified as full time (Grade 6/4 SACS award). The salary was specified as follows:
"$81,900 PA. ($35 per hour). Upon receipt of funding, previous and continued salary to be processed via direct debit to nominated bank account every Friday. (A provision that if further funding is sourced an increase in wages can be negotiated with Executive.)"
The hours of duty were stipulated to be 45 hours per week, "@ 52 weeks PA". The date of commencement was 1 December 2009. The period of employment was specified as "Unfixed term (dependent upon receiving funding)". The document then set out the duties and three conditions of employment which included:
"The Director (CEO) of WIPAN agrees to work unpaid until funding is acquired and then be paid this salary for the work completed and ongoing."
The document appeared to be signed by the appellant and Nicki Petrou on 29 November 2009.
Ex 1 was a document on WIPAN letterhead purporting to be minutes of a special meeting held on Friday 18 December 2009 at 12pm. The minutes noted the members present, including the appellant and Ms Petrou, together with apologies for non-attendances. It was headed, "Special meeting called due to potential employee issue". Item 1 dealt with misgivings that an employee "Shane" had raised with the appellant as her supervisor on 10 December 2009 about her continuing employment.
Item 2 was headed "Last meeting's minutes" and commenced "Kat raised that the 3 employment contracts were signed in November." This referred to the employment contracts of the two new employees of WIPAN, together with the Director/CEO contract of the appellant.
Four other items of business were dealt with, including "Funding" which noted that obtaining sufficient and recurrent funding was "the priority". Finally, the minutes noted that WIPAN would close down for the Christmas break between 22 December 2009 and 18 January 2010 and provided that the next WIPAN meeting was "now to be" on Friday 29 January 2010.
[15]
The fresh evidence of the appellant
The appellant gave evidence that the employment contract (Ex A) contained her signature but that she had no recollection of signing it. She could not recall where it was signed, and when asked why the document was not placed before the learned magistrate, she stated, "I don't believe it was available".
When asked how the document came into her possession, the appellant gave evidence that she saw it in an email from her previous lawyers to Timothy Rayner on 10 March 2021.
She confirmed that the evidence in respect of her defence of claim of right in the Local Court did not have regard to the document.
In respect of Ex 1, the minutes of the special meeting on 18 December 2009, the appellant also confirmed that it did not come before the learned magistrate. She had found it on 1 April 2021 in her ceiling storage area at home on an external drive. Some time after that date she had looked at the external drive and it contained WIPAN minutes from the commencement until 2015. When she found this document, she had forwarded it to her solicitor. The appellant gave evidence that she had no independent recollection of attending the meeting. She gave further evidence that she took the minutes of many meetings held by WIPAN.
The appellant gave evidence that Nicki Petrou had attended many meetings of WIPAN, including when she moved to the Northern Territory. When attending remotely she would phone in. Before moving to the Northern Territory she mostly attended in person and sometimes attended by phone. The appellant heard Ms Petrou's evidence that she would travel from Redfern to the meetings by train, but gave evidence that Ms Petrou sometimes indicated that she had travelled via taxi. She could not recall how often she indicated this.
The appellant gave evidence about Item 1 on the agenda and recalled issues with Shane and her employment. She gave evidence that she believed that she called a special meeting to discuss that issue, but confirmed that she had no recollection of attending the meeting.
The appellant gave evidence that there was no reason to believe that Ex 1 was anything other than the minutes of the special meeting held on 18 December 2009, and no reason to believe that Ex A was anything other than what it purported to be, namely, her employment contract, signed by herself and Ms Petrou. She gave evidence that she did not have the electronic signature of Ms Petrou at any time for the purpose of signing documents.
[16]
The fresh evidence of the Crown
The Crown called Mr Timothy Rayner, who gave evidence that he was employed as a paralegal by the appellant's former solicitors. He had come into possession of Ex A on 9 March 2021 and scanned and emailed it to the appellant on 18 March 2021. The contract had not been accompanied by anything else and he was not aware of where it came from. There was no cross-examination.
The Crown called Gloria Larman, who gave evidence that she had been the CEO of WJN since January 2018. In the period June to August 2021, she had been provided with documents by police including Ex A. She conducted a search of the computer and paper records of WJN, located in their office, and had found a number of contracts from 2009. Exhibit B was an employment contract of S. Bamford and Exhibit C was an employment contract of Shane Warburton. They were the only two employment contracts found.
In September 2021, Ms Larman had been provided with minutes of the special meeting on 18 December 2009. She made a search but no records were found of that meeting at all.
In cross-examination, Ms Larman agreed that she had not been employed by WIPAN in 2009. She had located a number of employment contracts for the period 2009 to 2014, which were found in a drawer in the WJN filing system. They were merely a sample of employment contracts and did not represent the only persons employed. In that five year period, WIPAN had employed "maybe 15" people. No file had been found in respect of the employment of the appellant.
Ms Larman was questioned about her statement made to police on 14 September 2021 (MFI #2). She had not seen the minutes of a meeting on 18 December 2009 and gave evidence that there were no records kept online until after that date. She gave further evidence that all previous minutes had been uploaded but did not know who was responsible for that.
Ms Larman agreed that she did not know one way or the other whether a meeting was held on 18 December 2009. If it was held, she did not know who was present or what issues were discussed. She agreed that she could not say whether the document detailing minutes of the 18 December 2009 meeting was genuine.
Ms Helen Dunstan was a current member of WJN, but had first worked as a volunteer mentor in 2013. She had been on the board first in 2016 and was the secretary for four years. She was shown the employment contract signed on 29 November 2009 by police and gave evidence that the logo on the document did not reflect the current wording or branding of WIPAN. She believed the WIPAN logo used in 2009 stopped being used by 2011. She produced a letterhead from WIPAN used between 2009 and 2011, which became Exhibit D. She gave evidence that whilst the branding was the same, the copy letterhead in Ex A was distorted. She also gave evidence that she had accessed older branding for the organisation, for example, Exhibit E, which demonstrated that the logo could be distorted when opened in some applications.
[17]
Evidence of Nicki Petrou
Ms Petrou gave evidence that she had been a founding member of WIPAN in 2007, and it had been incorporated in 2008. She became President around 2010 and had acted as Vice President and Acting President from time to time. She left WJN in 2020 when she was Vice President.
Ms Petrou gave evidence that Ex A was provided to her by police in May 2021. She identified her signature on the document but said that she had no memory of signing it and did not know why she had signed it. She gave evidence that 29 November was a Sunday but she could find no record of signing the document on that day. Her own diary entry for that day was blank, which meant she had no appointments to record. She gave evidence that "I did not sign this contract". A copy of her diary became Exhibit G.
Ms Petrou gave evidence that WIPAN members commenced using electronic signatures from 2011. WIPAN signed its first funding agreement on about 30 June 2011. She had lived in Sydney until 2010 when she moved to the Northern Territory. She commenced use of her electronic signature at some point prior to 2011 and gave evidence that the appellant was the only person on the board who had access to it. She did not have access to anyone else's electronic signature. At the time, the appellant was a director of WIPAN and electronic signatures were used to facilitate a lot of their work. Her approval to use her electronic signature was usually sought by email. It was used, for example, on the annual reports.
Ms Petrou gave evidence that WIPAN became incorporated as a not-for-profit organisation in September 2009. At that time, it was not employing any persons in paid positions. In September 2009 it had received its first grant of funding and the executive committee agreed to employ two part-time employees. There were two lawyers on the executive committee, Linda Sander and herself, and they had been careful to draft the contracts of employment. Prior to that, WIPAN had been run by volunteers doing voluntary work. The grant was for $100,000 for a period of 12 months. It was to be applied to the salaries of the two part time positions and to operational expenses. She gave evidence that there were no other employment contracts signed at the time. She described late 2009 as a monumental time because it was the first time WIPAN had employed staff. The minutes of the meeting held on 27 November 2009 became Exhibit L, which referred to the two new WIPAN employees. Those minutes referred to the next meeting to take place on 8 January 2010. By email dated 8 January 2010 (Exhibit M), the date of that meeting was changed to 29 January 2010.
[18]
The appellant's submissions
Counsel for the appellant submitted that for a claim of right to be established, there has to be a belief as to right to the property and that belief must be a genuine or honestly held belief, whether well-founded in fact or law, or not.
Counsel referred to R v Fuge (2001) 123 A Crim R 310; [2001] NSWCCA 208, where Wood CJ at CL, having reviewed the authorities, set out at [24] the principles to be applied.
Counsel submitted there were two matters for determination. First, whether the monies were taken pursuant to an honestly held belief as to the appellant's entitlement to them. Secondly, whether the deception involved in the receipt of the monies can negative the claim of right.
Counsel referred to R v Langham (1984) 36 SASR 48; 12 A Crim R 391, where King CJ at [53] said it was essential the claim must be genuine, i.e. honestly held. He also relied on R v Love (1989) 17 NSWLR 608, where it was held a claim of right was made out where the accused acted fraudulently, which was the case here. Further, a claim of right may not necessarily be for the accused's own benefit, relying on R v Kastratovic (1985) 42 SASR 59.
The fresh evidence of the contract for employment (Ex A) and the minutes of the special meeting (Ex 1) were relevant in that they gave credence to the alleged belief of the appellant as to her entitlement to take money from the WIPAN accounts.
The appellant submitted the Crown's contention that the two documents are fraudulent should not be accepted. Further, she submitted that on the basis of the evidence of Ms Larman and Ms Dunstan, an inference could be drawn that the WIPAN records were in a state of disarray. Evidence in support of this inference was that the documents or contracts were found in a drawer in the folders of the various persons employed. They did not represent all contracts, for which there were a total of 15. Further, efforts were made to locate electronic documents, however it was submitted that in actuality there were no electronic records properly kept and what occurred here was a reconstitution of records by attempting to obtain copies of emails from various members of the board and staff who were potentially involved. To the extent that the evidence of Ms Larman and Ms Dunstan relates to the implausibility of these documents being legitimate, their evidence would not carry great weight and would not establish proof to the criminal standard.
[19]
The Crown submissions
The Crown relied on a detailed written outline of submissions. It set out the evidence in the Local Court which supported each of the charges in sequences 1-8.
In addition, the Crown summarised evidence in respect of the appellant's belief of a claim of right in relation to Breakout Media ("Breakout"). The appellant had claimed that WIPAN owed a debt to Breakout for support previously provided by Breakout to WIPAN. Therefore, payments made from WIPAN to Breakout reflected money Breakout was owed. Against this, the appellant agreed that no liabilities to Breakout were ever recorded in any annual report, noting that the appellant was Treasurer of WIPAN from 2008-2013. There was no evidence to suggest that an invoice was ever issued by Breakout seeking payment for services that were provided. Subsequent to her being charged, the appellant raised an invoice dated 13 August 2018 from Breakout Media Communications addressed to WJN, seeking the sum of $323,293.30 (Ex 40 in the Local Court). The invoice also referred to a "salary for WIPAN Director, from 30/04/2008 to 21/10/2011including super" equivalent to $306,000.
In the Local Court, Ms Petrou denied that any informal agreement existed between WIPAN and Breakout that Breakout would recover funds for goods and services extended in the set-up of WIPAN.
The Crown submitted that a claim of right was not available where a party asserts to be acting on a claim of right on behalf of another person. Even if the law extended that far, having regard to the evidence in respect of the sequences here, the court could not find that the appellant held an honest belief that Breakout was legally entitled to money from WIPAN.
The Crown submitted, relying on Macleod v R (2003) 214 CLR 230; 2003 [HCA] 24 that three main points apply to a defence of claim of right as follows:
a. A distinction must be drawn between actions that are undertaken pursuant to a claim of right and actions that arise from ignorance of the law: "It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea."
b. The claim must be held honestly at the time of the relevant conduct, even if it appears unreasonable and unfounded. If this is the case, the claim, "is less likely to be believed or, more correctly, to engender a reasonable doubt."
c. Most relevantly, "particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions."
[20]
Factual findings based on the fresh evidence
Having regard to the evidence of both Ms Larman and Ms Dunstan, both of whom were doing their best to assist the court, I find that there was no complete set of records, whether in hard copy or electronically held on behalf of WIPAN from its inception. Doing the best they could, both witnesses could only reconstruct whatever records they could garner from the available sources.
Similarly, I find that Ms Petrou was a reliable witness. She was a founding member of WIPAN but was relying on an imperfect memory as to events that occurred up to 13 years ago. Whilst I accept her evidence that, with the benefit of hindsight, she would not have signed the employment contract dated 29 November 2009 because of the "unlawfulness" of some of its terms, and she had no recollection of signing it, that is not a sufficient basis for a finding beyond reasonable doubt that the document was either fabricated by or falsified on behalf of the appellant. The Crown called no expert evidence relating to the document itself or the signatures thereon, and whilst its provenance remained opaque, given the evidence of Mr Rayner, which I also accept, I am not satisfied that Ex A was fabricated.
I accept the appellant's evidence as to the provenance of Ex 1, the minutes of the meeting held on 18 December 2009. I also accept her evidence that at the time, each of the transactions the subject of the alleged offences took place, she did not have in her mind either Ex A or Ex 1. Nor did she at any time thereafter ever rely on those documents as the basis of her defence in the Local Court.
[21]
Principles to be applied
As set out above, in R v Fuge (supra) Wood CJ at CL having reviewed the authorities, set out the following principles:
"a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another;
b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not;
c) while the belief does not have to be reasonable, a colourable pretence is insufficient;
d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement;
e) the existence of such a claim when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in the legal right to the property rather than a belief in a legal right to employ the means in question to recover it;
f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them;
g) the claim of right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches;
h) in the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts;
i) it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury."
In Macleod v R (supra), the High Court was dealing with a question whether the trial judge erred in failing to properly direct the jury as to a claim of right. The appellant had been charged with 25 counts relating to an enterprise in which he had, as director of three companies, offered investment opportunities in a film production scheme. Several thousand investors contributed to this scheme and monies were held on their behalf by one of the companies of which the appellant was the sole director. Two thirds of the monies invested (more than $2 million) were applied to the appellant's own use, other than film production. The appeal concerned five counts pursuant to s 173 of the Crimes Act 1900 (NSW). The offence involved at the time, fraudulent taking by a director of property of a company for his own use and benefit. The High Court confirmed that the proper construction of "fraudulently" in s 173 of the Crimes Act was to be decided by standards of ordinary, decent people. The majority referred to the general principle identified by Dawson J in Walden v Hensler (1987) 163 CLR 561 at 591; [1987] HCA 54:
"It is always necessary for the prosecution to prove the intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with the existence of that intent will afford a defence."
[22]
Determination
Applying those principles here, I am satisfied that the appellant perpetrated a deliberate and sustained course of deception by which she committed the offences in sequences 1-8. This course of conduct, which took place over 13 months, involved 50 separate fraudulent transactions resulting in a net financial loss to WIPAN of approximately $140,000. Each of the offences under s 192E(1)(a) or (b) of the Crimes Act involved the appellant dishonestly obtaining a financial advantage or property by deception. I do not accept the appellant's evidence that in transactions where she employed the descriptor "wages", she was not being dishonest. It was clearly a false descriptor.
It was not in dispute that the appellant had made a significant contribution as a founder of WIPAN to further its objects between 2009 and 2016. In claiming an entitlement to money she obtained by deception, I find that she was not claiming those monies as a legal right. Her evidence that she was reliant on a number of unsubstantiated conversations with "all the board members" in 2009 to an entitlement to be paid for work done by her for WIPAN, whilst she was being paid by Breakout, including retrospectively, once the not-for-profit organisation was securely funded, is not supported by any objective evidence. It was refuted by evidence called by the Crown, including Ms Petrou and Ms Sandler, who were found to be credible and reliable witnesses by the learned magistrate. Applying the test set out in Watson v Foxman (supra), the evidence of the appellant could not give rise to any legal right of entitlement to the monies falsely obtained by her.
Further, her claim was not reliant in any way on the fresh evidence, i.e.
Ex A or Ex 1. Whilst I am not satisfied beyond reasonable doubt that those two documents were not authentic, they were not the basis of the appellant's claim of right. It is not to the point, as submitted by the appellant, that they add "credence" to her claim as at the time of the fraudulent conduct by her those documents were not in her mind. She had no recollection of either document when they were first brought to her attention. Whilst it is unnecessary in these circumstances for me to determine, the terms set out in Ex A were so imprecise so as to be unenforceable in any event.
Further, the appellant made no such claim when confronted by the board members in the recorded telephone conversation in December 2017. Nor was it asserted in the appellant's email dated 26 February 2018 (Ex 37 in the Local Court). This is relevant to whether the belief asserted by the appellant was in fact genuine.
[23]
Orders
I hereby order as follows:
1. The appeal as to conviction is dismissed;
2. I confirm the findings of guilty in respect of sequences 1-8 made by the learned magistrate on 21 October 2020.
[24]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 October 2021
In cross-examination, the appellant confirmed that in 2013 following the receipt of an award of money from Vodafone, the money was used to pay her for work she carried out for WIPAN. She agreed that the entitlement to payment pursuant to Ex A would reflect seven years of work, representing her eight years working for WIPAN between 2009 and 2017, less one year in which she was paid pursuant to the Vodafone award. She agreed that would represent salary payments in the region of $650,000 owed to her.
The appellant agreed that she had given evidence in the Local Court that she had deceptively taken money from WIPAN on the basis of her belief that there was unpaid wages owing to her. She agreed that she had not given evidence based on any written agreement, but on the basis of what she alleged to be many oral discussions she had with various board members. At the time of the Local Court hearing, she had no memory of this contract. She agreed that she had never raised any written contract with anyone at WIPAN in 2016 or 2017.
The appellant agreed that she had falsified the transactions the subject of the eight offences, together with the paperwork needed to accompany the transactions. Her reason for doing so was that she did not believe that the board would have honoured the debt owing to her. She confirmed that she did not feel that she had the support of the board at the time to give her what she was entitled to.
The appellant gave evidence that she believed she was entitled to the monies because she worked really hard for the organisation, which owed her money because of discussions she had informally and formally with various board members. They had agreed that if and when recurrent funding became available, she would be paid back for the work she carried out.
When it was put to her that instead of discussing the matter with the board she took the money deceptively, her answer was, "Yes, in relation to some of the transactions". Those transactions were identified to be where she had claimed "wages" from WJN.
The appellant agreed that no conversation took place between her and other board members until a telephone call where the suspicious transactions were raised with her by Nicki Petrou, Natasha Thompson and Helen Dunstan. That call was recorded with her consent and the transcript of the recording became Exhibit 36 in the Local Court proceedings.
The appellant agreed that at various times, including in March 2007, she had been offered to be paid wages by WIPAN but had declined. In March 2017, she had declined an offer of six to eight weeks paid employment when she acted as CEO. She agreed that at the same time she was deceptively transferring money into her accounts, or the accounts of others, to the detriment of WIPAN.
The appellant agreed that during that telephone call, she never raised anything about an informal agreement to be paid wages owing to her when funding became available. She said that she had no recollection of Ex A at that time and agreed that she had denied any wrongdoing.
In respect of the letter of demand that she had sent to WIPAN in September 2018 (Ex 41 in the Local Court proceedings), the appellant agreed that there was no reference to an hourly rate of $35, no reference to working 45 hours per week and no reference to any employment contract. She gave evidence that the document was not founded on any belief that there was a formal contract, because she didn't recall it.
When asked what her reaction was to discovering the contract on 10 March 2021, the appellant said she was "completely shocked". When asked why, she said, "Because it raised so many questions for me as to why it was being sent to me now". The appellant gave evidence that she received the document from a paralegal but made no enquiries as to its genesis. It was put to her that the document contained conditions which would not have been agreed to by WIPAN in 2009, with which she disagreed. It was put to the appellant that this was a document that she caused somebody else to create, to which she replied, "absolutely not". It was then put to her that she herself created the document, and she gave evidence to the effect that she may well have created it in 2009, however, in March 2021 she had no recollection of it. It was then put to her that she created the document and used Nicki Petrou's electronic signature to sign it, to which she answered, "Absolutely not".
The appellant agreed that she knew how to falsify documents, for example, the invoices referred to above. She stated that none of those documents had signatures on them.
The appellant agreed that in her reasons, the learned magistrate had stated that there was no documentary evidence corroborating her evidence that she was entitled to be paid for her unpaid work. It was then put to her that no documentary evidence was available to support her case until she created Ex A. It was further put to her that she had sent it to her solicitor so that the provenance of the document was unclear, which she denied.
The Crown put to the appellant that she did this to create evidence that the issue had been discussed by the board, knowing that there was no other way to verify the contract. The appellant disagreed with the proposition that she needed this as paperwork for her appeal. She disagreed with the proposition that she would say anything to protect herself.
In re-examination, the appellant was referred to her evidence that she had agreed to falsifying invoices in respect of some of the transactions only. She was asked what that meant and said that she believed some of the transactions were not deceptive, because she was claiming wages and had put correct descriptors of the transactions, for example, "WJN WIPAN wages". She conceded that other transactions were based on falsified invoices. When asked why she falsified some but not all of the documents, the appellant said "the larger sums needed accompanying paperwork to substantiate the wages paid by me."
Ms Dunstan gave evidence that she did not believe that WIPAN had recurrent funding until March 2017. They had received a substantial grant and had the support of Mr Coutts-Trotter, the secretary of FACS. When shown the minutes of the special meeting on 18 December 2009, she had conducted due diligence by contacting people to enquire whether there were any meetings held in December 2009. She had been careful not to prejudice their answers. She identified an email sent by the appellant on 6 January 2010 confirming the next meeting to be held on 29 January 2010.
In cross-examination, Ms Dunstan gave evidence that she had received the documents from Linda Steele. She had conducted a search of the WIPAN computer system and there was no record of a meeting held on 18 December 2009. In making her enquiries of the records, she had contacted members by email. It was put to her that she set out to recreate the records as far as she was able and she agreed that the records were not complete.
Ms Dunstan gave evidence that she had not seen any documents pre-dating the meeting on 18 December 2009 relating to postponement of the January meeting.
In re-examination, Ms Dunstan clarified that she had started building an archive of WIPAN's records following the receipt of a subpoena from the appellant's lawyers in 2018/19. There were three categories of documents: finance subcommittee meetings, general meetings up to 2013 and board meetings from 2015.
Ms Petrou gave evidence that she was not present at the meeting on 18 December 2009. By reference to her diary, it had been a busy time. It was her last day of work at Redfern Legal Centre before she moved to Darwin. She was wrapping up matters to hand over and attended a Christmas lunch at 1pm, which was a farewell lunch held for her. In relation to Ex 1, Item 2 on the first page recorded that a resolution was seconded by her. She gave evidence that she had no recollection of the matters discussed and did not second the motion. She had no recollection of any contract for a CEO position in 2009.
In cross-examination, it was put to Ms Petrou that the signature on the employment contract dated 29 November resembled her electronic signature. She agreed that her signature had changed over time and gave evidence that they appeared in the annual reports. She had not been asked for copies of her signature from 2009. Ms Petrou gave evidence that the signature on Ex A did not look similar to her actual signature.
Ms Petrou confirmed that the appellant had been employed in a paid capacity when WIPAN received the Vodafone Foundation money in August 2013. She could not recall whether she had seen a signed contract in relation to that employment.
Ms Petrou identified the contract for employment dated 5 August 2013 (Ex 34 in the Local Court), whereby the appellant was employed by WIPAN. She gave evidence that that contract was created after discussion with the appellant.
In relation to the meeting on 18 December 2009, Ms Petrou was cross-examined in detail about how she would normally travel to the WIPAN office for such meetings. With respect to Item 1 on the agenda, namely, the employment of Shane, she gave evidence that such issues might be expected to appear in the minutes of a special meeting. It was also put to her that Item 2 referred to three contracts, including the employment contract of the appellant as Director/CEO for a "time TBC", due to insufficient funding. She gave evidence that there was no correspondence at the time surrounding that meeting.
In relation to record keeping, Ms Petrou could not recall when the electronic filing system started to be used by WIPAN. She agreed that for a lengthy period of time, a lot of people had worked pro bono for the organisation and that the record keeping was not as good as it could have been. The appellant had been largely responsible for the office and keeping of records. However, it was put to her that the record keeping was fairly disjointed because it depended on each volunteer's contribution. Ms Petrou responded, "not necessarily". She gave evidence that the appellant was responsible for creating files and sub-files. In respect of Item 3 in Ex A, Ms Petrou could not recall specifically any discussion about policies and procedures drafted by the appellant in 2009. She could not remember when those policies were drafted but the board was heavily involved in creating policy manuals. They had used templates from other organisations, including NCOSS.
Ms Petrou agreed that she was fairly busy at work at Redfern Legal Centre when she worked there. She could not recall taking a taxi to the Trades Hall for WIPAN meetings. Whilst she had attended meetings by phone from the Northern Territory on many occasions, she did not think that she did so from Redfern and the minutes would reflect that.
Ms Petrou gave evidence that there was an occasion when Ms Sandler and the appellant came to see her at home, but she could not remember what was discussed. She could not exclude that it occurred in late 2009, but said that it was not on a Sunday and she recalled that it occurred on a Friday. It was suggested to Ms Petrou that it was her signature on Ex A and not an electronic signature. She said that that would not be likely. She did not recall signing the agreement, nor did she authorise her electronic signature to be placed on it. It was put to her that she was not telling the truth in her evidence that her electronic signature had been made available to the appellant, to which she replied, "Incorrect". It was suggested to her that she signed the contract on 29 November 2009 at her house to which she replied, "Incorrect". It was further put to her that she attended the meeting on 18 December 2009 to which she replied, "Incorrect. No." She agreed that the meeting of 8 January 2010 was abandoned and said that the email from the appellant to board members on 8 January did not make sense. She agreed that if the meeting had been changed on 18 December then any absentees from that meeting would have to be advised of the change in the date of the January meeting.
Ms Petrou was asked when the appellant assumed a position as Director of WIPAN and gave evidence that it would have been prior to December 2009. She had not found any document preceding December 2009 concerning a board decision to appoint the appellant as Director. However, the appellant was acting as Director from about the time the other part-time employees were taken on.
Ms Petrou agreed that the appellant was a major driving force for WIPAN, but stated that they were all involved.
In respect of Ex A, she agreed that the "primary functions" or duties of the Director were the primary functions which the appellant had performed as CEO. It was suggested to her that it was a genuine document and reflected the agreement with the appellant at the time, to which she disagreed. When asked why, she said that the conditions were "outrageous" and that she would not have agreed to them.
It was suggested to her that she did not accept that proposition because she did not want WIPAN to be indebted to the appellant in accordance with the agreement. Ms Petrou stated that the conditions were not lawful at the time, for example, 45 hours was outside the 38 hours required to be worked in the award. That had applied from 2008.
Leave was granted for the Crown to call further evidence in chief from Ms Petrou. She gave evidence that as at 2009, she had been Vice President of WIPAN and that no authority or delegations had been made by the board to directors. All decisions were made by the board. In her role as Vice President, she was given no specific delegations. She was not authorised to sign the type of document as in Ex A at the time. Further, she could find no documents concerning that contract.
In further cross-examination, it was suggested to Ms Petrou that she had never given a copy of her electronic signature to the appellant and never authorised her to use it, which she denied. She gave evidence that when she lived in the Northern Territory, documents would be emailed to her in a Word Document form and she would sign them and send them back in a PDF form. She gave evidence that the appellant definitely had a copy of her electronic signature and those of a number of other board members at the time. It was put to her that that evidence was not true, which she denied.
Ms Petrou was asked whether she acted as President in the latter part of 2009, to which she replied, "I don't believe so". She was asked whether she would sign documents in the absence of the President if she was unavailable, to which she replied, "Yes, or if two board members' signatures were required." She could not recall the circumstances in which a single board member would sign a document, but stated that it would have been only with the authority of the board.
In re-examination, Ms Petrou gave evidence that only board members would attend special meetings such as that revealed in the minutes of 18 December. Generally, sensitive issues were discussed. She gave evidence that the 18 December meeting did not make sense to her. Samantha Bamford would not have been in attendance if issues relating to her were to be discussed. She gave further evidence that when stating that the appellant had acted as Acting Director and CEO, the two roles would have been the same role, however, they did use different titles.
Ms Petrou was asked why she characterised the contract conditions as "outrageous", and she gave evidence that 45 hours of work per week was excessive and unlawful for a community sector employee. She gave evidence that they were meticulous in ensuring the contracts were lawfully drafted. It would have been inappropriate to include such a clause. Further, the salary seemed excessive. Subsequent employees were not paid at this level. Also, the term that it was conditional upon funding to be received was never agreed by the board. Finally, Ms Petrou gave evidence that WIPAN had its first paid CEO in 2015.
It was noted that Ms Petrou denied that she signed the employment contract, however, the appellant was not shaken as to how the documents came into her possession or her belief that they were genuine. Whilst the appellant conceded she could not remember the employment contract coming into existence or signing it, she accepted that it is her signature and that it set out the terms of her employment.
In relation to Ex 1, again Ms Petrou gave evidence that the meeting did not exist, that she did not attend it and that this too was a fraudulent document. It was submitted that the document represented a true record of the meeting. The chair was Suzette Glasby and in the absence of Ms Sandler (listed as an apology/non-attendance), the appellant was a person who might be called upon to take minutes of the meeting. The only persons listed as present at the meeting who gave evidence were the appellant and Ms Petrou. The Crown did not call evidence from any of the other persons present. The purpose of the meeting was to discuss employment issues and Ms Petrou agreed that this was something that occurred. Further, the employee, Shane, had issues with her employment and left the organisation a short time later. It was submitted that on its face, Ex 1 represents minutes of a WIPAN meeting, notwithstanding that Ms Petrou could not recall it.
The wording on the document that the next WIPAN meeting was "now to be held" on 29 January 2010 carried with it a clear implication that there had been another meeting scheduled, i.e. on 8 January 2010. Due to the Christmas stand-down period, it could be inferred that the email sent immediately prior to the 8 January meeting was simply a method of communicating with everyone including those persons who had submitted apologies/non-attendances to the 18 December meeting. It was submitted the court would not be satisfied to the required standard that the document (Ex 1) was fraudulent. Rather, both Ex A and Ex 1 lent some support to the belief of the appellant in relation to her entitlement.
With respect to her claim of right, the appellant had given evidence in the Local Court that there was an oral agreement that she would be paid and paid retrospectively. The agreement was that she would be paid monies owing to her when funding ultimately became available. That was the basis upon which she had a claim of right. The catalyst of her transferring money to her own account or benefit was the fact that funding became available for the first time. This occurred towards the end of 2015. In many of the smaller amounts she paid to herself, those amounts had accurate indicia including a description "wages". For the larger amounts, she used fake invoices. For example for the payment of Breakout Media's debts to Mega Press which was a supplier of Breakout Media, it was submitted that WIPAN owed Breakout a significant debt and the transfer was for the purpose of making good some of that debt.
In essence, the assertion of the appellant was that she was owed the monies she received. If the court held that Ex A was a genuine document, it was submitted that the court could find a real reason why WIPAN might contest that document, because it necessarily involves payment by WIPAN of a not inconsiderable sum of money to the appellant. The appellant's claim of right is supported by the employment contract and the minutes of the meeting on 18 December give further credence to that. Notwithstanding that she did so by dishonest means by raising fraudulent invoices to support the payments, it was submitted that it matters not that dishonest means were used to achieve the result. It was submitted the dishonesty of the means simply goes to whether I accept the appellant in relation to the holding of an honest belief that she was entitled to the money and entitled to take it. It is that belief that the Crown must disprove and disprove beyond reasonable doubt.
The Crown submitted that where the defence is raised, the court must be satisfied whether a person acted under honest intentions or alternatively, and often the case in fraud offences, acted dishonestly in the absence of prohibition. If satisfied of the above, a claim of right made in good faith is not available.
The Crown also referred to the judgment of Wood CJ at CL in R v Fuge set out above and relied on by the appellant.
Referring to R v Love (supra), the Crown emphasised that the issue is whether the accused had "a belief in the legal right to obtain the property in question, not whether there is also a belief to a legal right to employ deception to get it." The Crown also referred to Sigalla v R [2021] NSWCCA 22. The Court of Criminal Appeal held that whether an accused acted dishonestly, is to be assessed "according to the standards of ordinary, decent, people - meaning the ordinary notions of what the community would regard as dishonest" (at [79]). When dishonesty is a specific element in the case: "logic will, at least ordinarily, dictate that there is no need to superimpose a "claim of right" direction on an adequate "dishonesty" direction, because a finding of dishonesty typically negates a bona fide claim of right." (at [95])
The Crown outlined submissions as to why the appellant did not hold an honest belief that she had a legal entitlement to wages for work conducted in previous years going back to 2009, referring to the following matters:
1. There was no record in any document of WIPAN ever agreeing to back pay the appellant for work she had completed;
2. Ms Petrou confirmed that she was never privy or a party to a conversation where the appellant was entitled for past wages as she asserted;
3. Ms Sandler confirmed she was never privy or a party to a conversation where payment was offered to a conversation to the same effect;
4. The evidence established the appellant's refusal to take payment when offered by WIPAN, particularly as the appellant had indicated to Ms Petrou that she did not wish to accept payment as it would interfere with her Centrelink payments she received from 2011 to February 2020.
5. In the recorded telephone call with the WIPAN board regarding the fraudulent transactions, the appellant denied any knowledge or memory of improper conduct and suggested if any errors had been made she would refund the associated money;
6. In an apology email sent on 26 February 2018, the appellant did not rely on or assert an entitlement to monies owing to her for past wages based on any agreement, whether oral or written;
7. The first document produced by the appellant claiming unpaid wages was the appellant's letter of demand dated 14 September 2018, provided to WIPAN after the appellant's conduct had been detected and reported to police.
The Crown further highlighted the appellant's deceptive conduct as being probative to the determination of the question of her dishonesty. In particular, the court would have regard to:
"a. The use of false payment descriptors;
b. Elaborately deceitful invoices designed to appear genuine by, in some cases, using authentic invoices with altered particulars including removing her name as the payer and amending to be payable by WIPAN;
c. The use of a former employees authorisation dongle to create and authorise transactions, in particular, transactions that exceeded $10,000; and
d. Aligning the deceptive transfer of funds with genuine payments made around the same time, to avoid detection."
In relation to the appellant's alleged honest belief that Breakout was entitled to money from WIPAN, the court would have regard to the following matters:
"a. No invoices were received by Breakout Media for payment by WIPAN at any time during the period of the offences (sic);
b. The payments made to Breakout Media, and its subsidiaries, were made using false payment descriptors and/or false invoices that were not connected with Breakout Media or its subsidiaries.
c. Evidence of Ms Petrou that Breakout Media provided "in kind" support to WIPAN and from the appellant that no liabilities were ever recorded by WIPAN owing to Breakout Media…
d. The timing of an invoice issued by Breakout Media, which was only issued to WIPAN on 13 August 2018, after the appellant's fraudulent conduct had been detected and report to Police (sic)."
The Crown also relied on an abundance of evidence that displayed the professional manner in which WIPAN operated, noting that it sought to engage experienced executive members to steer the organisation in its early stages. It was inconsistent with the appellant's suggestion of informal business practices and unwritten debts. The Crown further submitted that a hallmark of the appellant's case about her asserted claim of right was her evidence that she was not able to raise the question of payment of money which she believed she was owed, because she feared confrontation and perceived a lack of support from the board and therefore it was unlikely the transactions would be granted. This was submitted to be inconsistent with evidence of WIPAN members who gave an account of positive relationships with the appellant and reiterated her tireless and significant contribution to WIPAN from its inception.
In addition, the Crown made the following oral submissions. First, the fresh evidence in Ex A and Ex 1 was not genuine. Secondly, those documents were not at all in the recollection of the appellant at the time she fraudulently obtained the funds. Thirdly, the Crown's ultimate submission was that even if the court found those documents to be genuine, on the basis of the totality of the evidence, the Crown had negatived beyond reasonable doubt that the appellant had a genuine claim of right.
With respect to the documents in Ex A and Ex 1, the Crown relied on the evidence of Ms Petrou which describes the conditions set out in Ex A as "outrageous and unlawful" and the number of inconsistencies in the document. The court would approach it with extreme caution and circumspection. In reviewing the fresh evidence, the court would have regard to Ex B and C, which were actual contracts made in 2009. Those documents carefully reflected the employment obligations of both employer and employee at the time. This was the first occasion in which WIPAN had been in a position to employ staff and the executives had been careful as to the drafting of those documents.
The Crown submitted that if the commencement date was 1 December 2009, this gave rise to a notional debt in excess of $650,000 owing to the appellant from a not-for-profit organisation where the question of funding was always operating on the minds of the executives.
The Crown relied on the evidence of Ms Dunstan to submit there was never a time relevant to these offences where WIPAN was in receipt of recurrent funding. In 2017, it had recently received funding from the Department of Justice dating back to 2015. They were also in current talks with the Secretary of FACS, with the view to secure funding going into the future. It was submitted that funding was always a primary concern for the appellant in her work for WIPAN, and in 2017 she had been offered payment for work as CEO, but refused.
The Crown submitted it was significant that the contract of employment was not in the appellant's recollection when she committed the offences. None of the documents gave rise to a genuine belief that she had a legal entitlement to any monies from WIPAN.
The Crown submitted the court would also have regard to the appellant's evidence that when she received Ex A in March 2021, that she was "shocked". It was submitted that this must have represented a watershed moment for her as it gave rise to WIPAN's indebtedness to her for a significant amount of money. Notwithstanding that the appellant had occupied an apex position in the organisation she created, she didn't remember signing the document, the circumstances in which it was signed and had no idea where it came from. Further, the court would not accept the appellant's explanation that she never raised the question of a debt with WIPAN because she feared confrontation. There was no confrontation at all. In the recorded telephone call (Ex 36 in the Local Court), the appellant never claimed an entitlement to the monies, nor did she make any such claim in her email of apology (Ex 37 in the Local Court).
It was submitted that the appellant's conduct following the telephone call at the end of 2017 was relevant to the court's assessment as to whether the appellant's belief was genuine. First, the timing of the letter of demand (Ex 41 in the Local Court) did not come to WIPAN until 14 December 2018. Up until that point, there was no document establishing that she was entitled to claim wages.
The Crown submitted that the documents in Ex A and Ex 1 were not authentic. In any event, the appellant had given evidence that those documents were not in her contemplation at all at the time she took the money.
The Crown submitted, relying on Macleod v R (supra) that deceptive conduct, even though it relates to a second element of the offence, is probative to the element of dishonesty where there is a pattern of sustained deceptive conduct. Here, each of the sequences charged showed a modus operandi employed by the appellant involving a pattern of subterfuge used so as not to come to notice of people and also to make it difficult to identify the appellant as the person who authorised the transactions. In particular, in 2017 the appellant had used the authorisation dongle of another employee who had since left the organisation, to authorise transactions above $10,000.
The Crown submitted that the court would not accept the appellant's contention that in respect of some of the matters there was not fraudulent descriptors used, for example, in claims for "wages". The Crown referred to Exhibit 18A-H in the Local Court, which was a summary of payment descriptors. The Crown submitted that the appellant had a moral entitlement because of her hard work, but that it never rose to a legal entitlement. Notwithstanding her use of the payment descriptor "wages", the Crown submitted that the appellant was not entitled to those wages from WIPAN. There was a level of deception because on analysis or audit, there was no contract and no associated records, for example timesheets. Therefore, her description was deceptive. The Crown submitted the appellant was not entitled in a legal sense to deal with the money in any genuine way.
The majority quoted from Glanville Williams:
"The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it."
The majority referred to what Dawson J said in Walden at 592-593:
"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149 at 170 per Lord Westbury."
The Court went on to hold that particular considerations arise where, "fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions." (at [43])
In Macleod, the appellant had given evidence concerning the transfer of funds belonging to the company and had claimed that as the owner of the company (being the sole shareholder) he was therefore the owner of the money. Like here, in the early years of the company he had not drawn a salary but intended that when the company's financial position was more secure he was entitled to do so. He said that he believed that the company owed him more than the amount that he borrowed from it.
The High Court held it was not incumbent upon the trial judge to give a special direction as to claim of right. It was open to the jury, looking at the matter by reference to standards of ordinary, decent people, to conclude that at the time of the various taking of sums of money, the appellant knew of his lack of entitlement to them and that his acts were dishonest. The majority stated:
"Evidence tending to indicate a deliberate and sustained course of deception by the appellant is probative of a lack of genuine belief in an entitlement to apply the property… to his own use or benefit."
The High Court went on to hold that in the context of an offence where dishonesty is an element, a direction about a claim of right defence is unnecessary.
Macleod was applied by the Court of Criminal Appeal in Sigalla (supra). The Court held that in the context of an offence of which dishonesty is a specific element, proof of dishonesty negates a bona fide claim of right. At [91] Brereton JA said:
"The relevance of a 'claim of right' is, as explained in Macleod, potentially to raise a reasonable doubt with respect to the overall persuasive burden on the prosecution of proving that there had been dishonesty as alleged."
The Court in Sigalla was considering 24 counts of dishonestly using the appellant's position as a director of a corporation with the intention of directly or indirectly gaining an advantage for himself or a third party, contrary to s 184(2)(a) of the Corporations Act 2001 (Cth).
In asserting her claim of right, the appellant relies on conversations she alleged occurred with "all the board members" at the time WIPAN was incorporated. In the context of oral representations relied on in a claim based on misleading and deceptive conduct, in Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Eq said as follows at pp 318-319:
"Where in civil proceedings, a party alleges that the conduct of another was misleading and deceptive… it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court:
(1) What the alleged conduct was; and
(2) Circumstances which rendered the conduct misleading.
Where the conduct is a speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all), the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to have been relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court 'must feel an actual persuasion of its occurrence of existence'. Such satisfaction is 'not attained… or established independently of the nature and consequence of the fact or facts to be proved' including the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding': Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as a foundation of causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration…"
His Honour went on to say (p 319) that these considerations were equally applicable to causes of action based on contract. In applying these principles, in Carrier v Georges [2013] NSWSC 401 Nicholas J said at [27]:
"The requisite 'reasonable satisfaction' should not be produced by 'inexact proofs, indefinite testimony, or indirect references' (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J, p 362)."
Nor does the letter of demand sent by the appellant to WIPAN, dated 14 September 2018, provide the basis for a finding that the appellant is asserting a legal entitlement to the monies. It is no more than an ex-post-facto rationalisation of the appellant's conduct. Further, I find the appellant's explanation for the offending, i.e. that she did not have the support of the board to give her what she was entitled to, was entirely disingenuous in the circumstances.
It is unnecessary for me to determine, given the above findings, whether a claim of right defence could extend to a benefit obtained on behalf of a third party, which occurred in sequences 3, 4 and 6, where the monies dishonestly obtained by the appellant were applied to debts owed by Breakout. Whilst Kastratovic (supra) is cited as authority for the proposition, that case concerned whether the trial judge had given appropriate directions to a jury on a charge of demanding money, with intent to defraud by virtue of a forged guarantee, pursuant to s 234 of the Criminal Law Consolidation Act 1984 (SA). The benefit of the demand for payment was to go to the accused, not to a third party. At page 65, King CJ discussed the ambit of a claim of right in crimes of dishonesty, including larceny. His Honour's commentary may be regarded as obiter. The decision does not assist the appellant in the present circumstances.
I therefore find that the answers to the two matters raised by counsel for the appellant for determination are first, that the monies were not taken pursuant to an honestly held belief as to the appellant's entitlement to them as a legal right and secondly, that the deception involved in receipt of the monies in this case clearly negatived any claim of right. At best, any claim of this appellant was based on a moral right for reimbursement for her contribution to the organisation. However, even that is doubtful given that for much of the period of her involvement with the exception of the time she was paid by virtue of the Vodafone award monies, she was either employed by Breakout, was in receipt of Centrelink funds, or otherwise declined to be paid for her involvement.
Having regard to the totality of the evidence, including the fresh evidence, I am satisfied that the Crown has established the elements of each of the charges in sequences 1-8 beyond reasonable doubt and has negatived the existence of a claim of right in the appellant to the monies.
I am further satisfied that no error has been demonstrated in the reasons of the learned magistrate, finding the appellant guilty of each of the charges. I therefore dismiss the appeal by the appellant as to her conviction on sequences 1-8 and confirm the learned magistrate's verdicts of guilty on each count made on 21 October 2020.